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Ozmun v. Portfolio Recovery Associates LLC

United States District Court, W.D. Texas, Austin Division

June 15, 2018

JOSEPH OZMUN, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC; RAUSCH, STRUM, ISRAEL, ENERSON & HORNIK LLC; WESTERN SURETY COMPANY; and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Defendants.

          ORDER

          SAM SPARKS SENIOR UNITED STATES DISTRICT JUDGE

         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendants' Motion for Summary Judgment [#101], Plaintiff Joseph Ozmun's Response [#103] in opposition, and Defendants' Reply [#106] in support as well as Plaintiff s Motion to Strike [#104], Defendants' Response [#105] in opposition, and Plaintiff s Reply [#112] in support.[1] Having reviewed the documents, the relevant law, and the file as a whole, the Court now enters the following opinion and orders.

         Background

On August 3, 2016, Plaintiff filed the initial lawsuit in this action, alleging Defendants RSIEH, Travelers Casualty and Surety Company of America (Travelers), Portfolio Recovery Associates, LLC (PRA), and Western Surety Company (Western) violated the Fair Debt Collection Practices Act (FDCP A), 15U.S.C. § 1692 etseq., and the Texas Debt Collection Act (TDCA), Tex. Fin. Code § 392.001 etseq. Compl. [#1]. The Court previously summarized the facts underlying the initial lawsuit when it ruled on Defendants' first motion for summary judgment, and the Court incorporates that earlier factual summary here. See Order of July 24, 2017 [#79].

         In its July 24, 2017 order, the Court granted in part and denied in part Defendants' first motion for summary judgment. Id. Although the Court granted summary judgment for Defendants on Plaintiffs TDCA claims because Plaintiff lacked standing, the Court found fact issues precluded summary judgment on Plaintiff's FDCPA claims. Id.

         Shortly before this Court entered its first summary judgment order, Plaintiff filed two additional lawsuits against PRA as well as Hartford Casualty Insurance Company (Hartford). Plaintiffs allegations in the two lawsuits are identical except each references a different credit card debt. See Compl. [#1] ¶ 14, Ozmun v. Portfolio Recovery Associates, No. 1:17-cv-0064 (alleging PRA misrepresented a credit card debt with an account number beginning in 499410); Compl. [#1] ¶ 14, Ozmun v. Portfolio Recovery Associates, No. 1:17-cv-0065 (alleging PRA misrepresented a credit card debt with an account number beginning in 210720). The two later-filed cases assert PRA misrepresented the 499410 debt and the 210720 debt by failing to indicate these debts were disputed to a credit reporting agency. Id. The FDCPA and TDCA claims surrounding the alleged misrepresentation to a credit reporting agency in the later-filed cases are the same as those claims from the initial lawsuit except Plaintiff added requests for injunctive relief to his TDCA claims in the two-later filed cases. See id.; see also PL's Resp. [#103] at 7-9. On September 28, 2017, the Court consolidated the two-later filed cases into this action. Order of Sept. 28, 2017 [#13], No. 1:17-cv-0064.

         Defendants now move, for a second time, for summary judgment. Plaintiff subsequently filed a motion to strike portions of Defendants' summary judgment motion and corresponding exhibits. Both motions are now ripe for a decision.

         Analysis

         I. Motion to Strike

         The Court denies Plaintiffs motion to strike. In his motion to strike, Plaintiff complains Defendants make unsupported allegations against Plaintiffs counsel and seeks to strike those statements and corresponding exhibits. See Mot. Strike [#104]. The problematic allegations include statements Plaintiff s counsel violated rales of professional conduct and fabricated Plaintiffs dispute of the Debt. See id.

         However, in reviewing their statements in context of the motion for summary judgment, the Court finds Defendants provided some support for their allegations. See Second Mot. Summ. J. [#101]. In fact, although Plaintiff claims Defendants make unsupported allegations, Plaintiff seeks to strike the very exhibits Defendants use to support their allegations. Moreover, the allegations relate to issues at the center of this lawsuit. Most significantly, the material Plaintiff seeks to strike is relevant to a remaining fact issue this Court previously identified: whether Plaintiff actually disputed the Debt when the Debt letter was sent to PRA. See Order of July 24, 2017 [#79] at 16. As "motion[s] to strike should be granted only when the pleading to be stricken has no possible relation the controversy[, ]" the Court denies Plaintiff s motion to strike. See United States v. Coney, 689 F.3d 365, 379 (5th Cir. 2012) (quotation omitted).

         II. Motion for Summary Judgment

         A. Legal Standard

         Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S.317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio,475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a ...


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