United States District Court, D. Idaho
REPORT AND RECOMMENDATION RE: MOTION FOR SUMMARY
JUDGMENT (DKT. 18)
HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE.
Pending
before the Court is Defendants William R. Dalling,
Chartered's and William R. Dalling's Motion for
Summary Judgment and Motion to Dismiss CardEz Credit
Affiliates, LLC, for Failure of Service (Dkt. 18.) Having
reviewed the parties' briefs as well as the record in
this mater, the Court concludes oral argument is not
necessary. Dist. Idaho Loc. Civ. R. 7.1(d). Accordingly, the
Court enters the following report recommending the motion for
summary judgment be granted.
FACTUAL
AND PROCEDURAL BACKGROUND
1.
Debt Collection Efforts
In
December of 2002, Plaintiff Vicky Cole allegedly had
outstanding credit card debt with First USA Bank. Sometime
thereafter, the debt was purchased, cosigned, placed, or
otherwise transferred to CardEz Credit Affiliates
(“CardEz”). The debt was then sent to William R.
Dalling, Chartered (“the Dalling Law Firm”) for
collection efforts on CardEz's behalf.
In
April of 2016, CardEz (through the Dalling Law Firm and
William Dalling, the individual) filed a complaint against
Vicky Cole in the Seventh Judicial District of the State of
Idaho, Bonneville County. However, Cole was not a resident of
Bonneville County and the related credit card contract was
not entered into or executed in Bonneville County. Until
recently, Ms. Cole lived in Adams County, Idaho, her entire
life.
On June
30, 2006, a Judgment was entered in the state court action
against Cole in Bonneville County. The Judgment was renewed
by Dalling on May 12, 2011. On December 4, 2013, Dalling,
though the Dalling Law Firm, submitted an application for a
writ of execution on the judgment against Cole, and the
Bonneville County clerk issued the Writ in the amount of $32,
123.55. On December 16, 2013, CardEz utilized the Writ of
Execution, through the Dalling Law firm and Dalling, to
garnish $1, 129.13 from Cole's checking account located
in Adams County, Idaho.
2.
2014 Lawsuit Against Defendants
On
March 4, 2014, Cole filed suit against CardEz, the Dalling
Law Firm, and Dalling, alleging violations of the Fair Debt
Collection Practices Act and Idaho Consumer Protection Act in
the this Court.[1] See Cole v. CardEz Credit Affiliates
LLC, et al, 1:14-cv-00077-REB. Specifically, the 2014
Complaint alleged the Defendants' actions of obtaining a
Writ of Execution in Bonneville County violated the FDCPA
because it constituted an action on a debt in a judicial
district other than the one in which Cole signed the
contract, or resided on, at the time of the commencement of
the action.
During
the pendency of Cole's 2014 federal case, CardEz filed a
motion for change of venue post-judgment in the Bonneville
County court action on April 7, 2015. The court granted the
motion, and the state case was transferred to Adams County,
Idaho, on May 27, 2015. On July 1, 2015, on behalf of CardEz,
the Dalling Law Firm and Dalling submitted an application for
writ of execution on the judgment against Cole in Adams
County, Idaho. The Adams County clerk issued the Writ of
Execution on July 15, 2015. However, no assets were recovered
as a result of this garnishment.
On
December 10, 2015, the parties filed a stipulation for
dismissal with prejudice in the 2014 federal case, citing
settlement as the grounds for dismissal. See Cole et
al, 1:14-cv-00077-REB. (Dkt. 31.) The Court approved the
stipulation and dismissed the case the same day.
The
basis for dismissal of the 2014 federal action was the
“Release of Claims Agreement” between the
parties. (Dkt. 18-3 at 30.) The Agreement states in relevant
part:
That Vicky Cole, (“Releasor”),
for the sole consideration of $3, 500 Dollars and No/100 ($3,
500.00), which is inclusive of attorney fees and costs, paid
to Releasor, receipt which is hereby acknowledged, does
hereby release, acquit, and forever discharge CardEz
Credit Affiliates, LLC; William R. Dalling, Chartered dba
Dalling &Dalling; and William R.
Dalling; individually, and their successors,
representatives, assigns, agents, officers, directors,
servants, employees, attorneys, indemnitors and insurers, and
their heirs, estates, representatives, and any and all
persons acting for, by, though, or in any way on behalf of
said released persons or any of them
(“Releasees”), of and from all claims of every
kind, name or nature, known or unknown, contingent or mature,
including attorney fees and costs, having to do with,
arising, arisen, to arise, or which may arise out of or by
reason of that certain actions and events set forth in
Releasor's Complaint dated March 3, 2014, filed against
Releasees. This Release of Claims Agreement does not release
or discharge Releasees from any claims or causes of action
other than for the allegations and events set forth in
Releasor's March 3, 2014 Complaint.
(Dkt. 18-3 at 30.)
3.
Instant Action
Four
months later, on March 8, 2016, Cole filed suit against the
same Defendants in the instant action, alleging violations of
the Fair Debt Collection Practices Act and Idaho Consumer
Protection Act, based on Defendants' post-judgment filing
seeking a change of venue, and obtaining the writ of
execution, in the Bonneville County case.
On July
25, 2016, the Court issued a summons as to CardEz, the
Dalling Law Firm, and Dalling. (Dkt. 3.) The following day,
the undersigned ordered, pursuant to Fed.R.Civ.P. 4(m), that
all Defendants must be served by August 25, ...