United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge United States District
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.
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.
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.
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.
about December 14, 2010, Miller received a letter from an
attorney at Javitch Block, a law firm, on behalf of National
Collegiate. 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.
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.
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.”
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.
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.
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
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.
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.
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.
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.
Javitch Block's Motion to Stay the Proceedings ...