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Miller v. Javitch Block, LLC

United States District Court, W.D. Kentucky, Louisville

May 1, 2017

RONALD MILLER PLAINTIFF
v.
JAVITCH BLOCK, LLC DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge United States District Court

          I. Introduction

          This matter is before the Court on the motion of Defendant Javitch Block, LLC (“Javitch Block”) for summary judgment under Federal Rule of Civil Procedure 56(a), ECF No. 22. Plaintiff Ronald Miller responded, ECF No. 24. Javitch Block did not timely reply.

         Javitch Block also filed a motion to stay further proceedings on its motion for summary judgment under Federal Rule of Civil Procedure 56(d)(3) pending the resolution of a related state case in the Jefferson County, Kentucky Circuit Court and the Kentucky Court of Appeals, ECF No. 25. Miller responded, ECF No. 26. Javitch Block did not reply.

         Because these motions involve the same facts and similar issues, the Court will address them in a single memorandum opinion and order. The Court will deny Javitch Block's motion to stay. The Court will also grant in part and deny in part its motion for summary judgment.

         II. Background

         In 2003, Miller cosigned a $15, 000.00 private undergraduate student loan from Charter One Bank, N.A. for his son, Richard. Ex. 1 at 6, ECF No. 22-1. The loan application stated that Miller, as a cosigner of the loan, guaranteed the debt, accepted responsibility for paying the debt, and could be subject to the same debt collection methods as Richard, the primary debtor. Id. at 12. Soon after Miller cosigned the student loan, the National Collegiate Student Loan Trust 2003-1 (“National Collegiate”) purchased the loan from Charter One Bank, N.A. Id. at 27.

         On about December 14, 2010, Miller received a letter from an attorney at Javitch Block, a law firm, on behalf of National Collegiate.[1] Miller Aff. ¶ 3, ECF No. 24-1. The letter stated that National Collegiate sought to collect on the loan, which had apparently gone into default. Id. On December 27, 2010, Miller wrote a return letter to the law firm in which he disputed that he owed the alleged debt to National Collegiate. Ex. 1 at 14, ECF No. 22-1. In response, Javitch Block sent Miller a second letter containing details of the loan, including the amount owed, name of the creditor, address of the creditor, and date of the most recent payment. Id. at 15.

         In November 2011, National Collegiate sued Miller and Richard, Miller's son, in the Jefferson County Circuit Court, Case No. 11-CI-007285, based on the loan for $22, 673.38, plus accrued interest of $1, 448.81 through October 15, 2011 and interest of 4.95% per annum from October 15, 2011. St. Ct. Compl. 1, ECF No. 15-2. Javitch Block represented National Collegiate in these proceedings. Id. at 2.

         In March 2012, National Collegiate moved for judgment on the pleadings against Richard in the state court. Order 2/29/2012 1, ECF No. 15-3. The Jefferson County Circuit Court granted National Collegiate's motion for judgment on the pleadings and determined that Richard owed National Collegiate “$22.673.38 plus accrued interest and late charges in the amount of $477.80 through December 3, 2010 plus interest at the rate of 4.95% per annum thereafter until paid in full and the costs of the within action.” Id.

         In August 2013, National Collegiate moved for summary judgment in the state court case against Miller, the remaining defendant. Ex. 1 at 16, ECF No. 22-1. The Jefferson County Circuit Court issued an opinion and order (“the state court opinion and order”). Id. at 41-44. In the state court opinion and order, the Jefferson County Circuit Court explained that Miller failed to deny that he had borrowed money from National Collegiate and failed to present “affirmative evidence to support his defenses that [National Collegiate did] not have an interest in the subject account or that the amount owed or Mr. Miller's liability [was] in dispute.” Id. at 43. As such, the Jefferson County Circuit Court determined that there was not a genuine issue of material fact as to whether Miller was in default of the loan agreement and granted National Collegiate's motion for summary judgment. Id. at 44.

         The state court opinion and order did not mention the monetary value of the judgment. But the Jefferson County Circuit Court observed at the beginning of the opinion and order that National Collegiate was “contend[ing] that Mr. Miller owes a balance in the amount of $24, 122.19, plus interest and [was] requesting a judgment against Mr. Miller in that amount.” Id. at 41.

         In September 2014, before having obtained another order listing a judgment for a specific amount, National Collegiate-which was still represented by Javitch Block-obtained a writ of garnishment against Miller's bank account. Garnishment 1, ECF No. 15-6. In January 2015, National Collegiate, also through Javitch Block's representation, applied for costs in the Jefferson County Circuit Court for the filing fee and for fees incident to service of process and summoning of witnesses in the amount of $333.00. Bill of Costs 1, ECF No. 15-8. That same month, Javitch Block, on behalf of National Collegiate, caused a judgment lien to be entered against Miller, thereby encumbering his real estate. J. Lien 1, ECF No. 15-7.

         In January 2017, the Jefferson County Circuit Court entered a judgment against Miller for $24, 122.19, plus interest of 4.95% from October 11, 2011. Order 1/9/2017 1, ECF No. 24-2. Miller has appealed the Jefferson County Circuit Court's entry of the judgment to the Kentucky Court of Appeals, Case No. 2017-CA-000112. The case is apparently still pending.

         In September 2015, Miller filed suit in this Court against Javitch Block. Compl. 1, ECF No. 1. Miller alleges that representations that Javitch Block made to him regarding the debt were materially false, deceptive, and/or misleading and thus violated the federal Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692e(2), (4), (5), (10), and (11) (Count I). Id. ¶¶ 21-28. Miller also asserts that Javitch Block used unfair or unconscionable means to collect or attempt to collect the debt, or sought to collect amounts that were not authorized, which violated § 1692f(1) of the FDCPA (Count II). Id. ¶¶ 29-32. Miller additionally contends that Javitch Block failed to send him required information within five days of filing its bill of costs in January 2015, thereby violating § 1692g(a) of the FDCPA (Count III). Id. ¶¶ 33-37.

         Miller further asserts several state law claims against Javitch Block. He claims that Javitch Block engaged in wrongful garnishment in violation of Kentucky Revised Statute § 411.080 (Count IV). Id. ¶¶ 38-45. He contends that Javitch Block is liable for wrongful use of civil proceedings and abuse of process (Count V). Id. ¶¶ 46-53, 55. Miller finally maintains that Javitch Block intentionally or negligently caused him emotional distress in violation of Kentucky law (Count VI). Id. ¶ 54. Miller seeks compensatory, statutory, and punitive damages, interest, an injunction, and an award of attorney fees and costs. Id. at 9-10.

         Javitch Block has now moved for summary judgment on Miller's claims under Federal Rule of Civil Procedure 56(a). Mot. Summ. J. 1, ECF No. 22. It also has moved to stay further proceedings on its motion for summary judgment under Federal Rule of Civil Procedure 56(d)(3) pending resolution of the case in the Jefferson County Circuit Court and the Kentucky Court of Appeals. Mot. Stay 1, ECF No. 25.

         III. Javitch Block's Motion to Stay the Proceedings ...


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