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Cole v. Cardez Credit, LLC

United States District Court, D. Idaho

August 10, 2017

VICKY COLE, Plaintiff,
v.
CARDEZ CREDIT, LLC, an Idaho limited liability company; WILLIAM R. DALLING, CHARTERED d/b/a Dalling & Dalling; WILLIAM R. DALLING, an individual; and JOHN DOES I-X, individual employees of Cardez Credit Affiliates, LLC and William R. Dalling, Chartered, Defendants.

          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, ...


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