United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT 
HONORABLE STEPHEN J. MURPHY, III JUDGE
February 3, 2017, Plaintiff Cassandra Lee Hudson filed her
complaint alleging that Defendants Velo Legal Services, PLC
and Scott Renner violated the Fair Debt Collection Practice
Act ("FDCPA"). ECF 1. The alleged violations arose
from Defendants' collection efforts in Michigan state
court. See generally Id. On August 27, 2018, the
parties attempted to mediate the case with the magistrate
judge. On November 13, 2018, Plaintiff filed her motion for
summary judgment. ECF 50. On December 4, 2018, Defendants
responded and suggested the Court "exercise its
authority under Rule 56(f)(1) and grant summary judgment in
their favor." ECF 52, PgID 844. The Court has reviewed
the briefs and finds that a hearing is not necessary. E.D.
Mich. LR 7.1(f). For the reasons below, the Court will deny
February 2014, Plaintiff entered into a lease agreement
("Lease") with Sun Home Services, Inc. ("Sun
Homes") to rent a mobile home. See ECF 1-4.
Plaintiff rented the home for personal, household, and family
purposes. The Lease did not contain a term for charging
interest. See generally id.
August 15, 2016, Defendants filed a collection lawsuit in
state court seeking to collect a debt Plaintiff allegedly
owed under the Lease. ECF 1-3, PgID 31-36. The complaint that
Defendants filed ("Filed Complaint") differed,
however, from the complaint that Defendants had previously
served on Plaintiff ("Served Complaint").
Filed Complaint sought $2, 558.45-a principal amount of $2,
224.41 plus interest of $334.04. See, e.g., ECF 1-3,
PgID 31. The Served Complaint sought $3, 101.08-a principal
amount of $2, 773.91 plus interest of $327.17. See,
e.g., ECF 1-2, PgID 25. Each complaint attached an
affidavit of account, which included a disclaimer notifying
Plaintiff that she had 30 days to dispute the debt.
Compare ECF 1-2, PgID 27 with ECF 1-3, PgID
hired an attorney and defended against the state court
proceeding. The state court judge entered judgment in
Defendants' favor (on behalf of Sun Homes) in the amount
of $1, 178.10 and did not award interest. See ECF
50-5, PgID 743. Plaintiff's attorney's fees in the
state court case equaled $12, 624.00. See ECF 50-8.
judgment is proper if the movant shows that there is "no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). A fact is material for purposes of summary judgment if
its resolution would establish or refute an "essential
element of a cause of action or defense asserted by the
parties[.]" Kendall v. Hoover Co., 751 F.2d
171, 174 (6th Cir. 1984) (citing Black's Law
Dictionary 881 (6th ed. 1979)).
considering a motion for summary judgment, the Court must
view the facts and "draw all reasonable inferences in
the light most favorable to the non-moving party."
Stiles ex rel. D.S. v. Grainger Cty., 819 F.3d 834,
848 (6th Cir. 2016). The Court must then determine
"whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). And although the Court may not make
credibility judgments or weigh the evidence, Moran v. Al
Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015), a mere
"scintilla" of evidence is insufficient to survive
summary judgment; "there must be evidence on which the
jury could reasonably find for the plaintiff,"
Anderson, 477 U.S. at 252.
FDCPA prohibits debt collectors from using "any false,
deceptive, or misleading misrepresentation or means in
connection with the collection of any debt." 15 U.S.C.
§ 1692e. To prevail on a § 1692e claim, a plaintiff
must prove that (1) she is a "consumer;" (2) the
"debt" arose out of a transaction primarily related
to personal, family, or household purposes; (3) the defendant
is a "debt collector;" and (4) the defendant
engaged in violative conduct. See Wallace v. Wash. Mut.
Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012). The
parties dispute only the fourth element-whether
Defendants' conduct violated the FDCPA. See ECF
50, PgID 457 (Plaintiff's motion citing Defendant's
discovery responses); ECF 52, PgID 828 (Defendants'
response brief introducing the issue as only whether
Defendants made misrepresentations).
alleges that Defendants violated the FDCPA during the state
collection lawsuit in three ways: (1) identifying
inconsistent amounts between the Filed Complaint and Served
Complaint; (2) adding a claim for interest without
contractual or statutory authorization; and (3) providing
Plaintiff with a "misleading notice" of her time to
dispute the debt. ECF 50, PgID 452. Plaintiff also sought
summary judgment on each of Defendants' affirmative
defenses. Id. at 465-69. The Court addresses each
argument in turn.
The Dueling Complaints
collector violates the FDCPA if it makes a false
representation of "the character, amount, or legal
status of any debt." 15 U.S.C. § 1692e(2)(A). The
Defendants do not contest that the Filed and Served
Complaints represented different debt amounts but assert that
the difference resulted from a clerical error. See
ECF 52, PgID 828. If the debt amount represented in the Filed
Complaint was correct, then the debt amount in the Served
Complaint was a false or misleading representation of the
amount of the debt-and vice versa. Defendants' conduct
therefore violated § 1692e(2)(A). The Court must
still determine, however, whether Defendants' affirmative
defenses protect them from liability. See infra.
Defendants' Claim for Interest
FDCPA prohibits the collection of any amount of interest
unless a contract or the law permits recovery of interest. 15
U.S.C. § 1692f(1). Plaintiff alleges that Defendants
violated that prohibition by seeking interest in the state
court proceeding. Plaintiff maintains that, because the state
court entered a judgment that "did not include an amount
for interest" that the state court "made a finding
that the amount of interest sought [by Defendants] . . .
could not be recovered as a matter of contract or under
Michigan law." ECF 50, PgID 460. Plaintiff then argues
that res judicata bars the Court from considering the
propriety of the interest. The Court will first address
Plaintiff's res judicata argument. Then the Court will
consider whether Defendants improperly sought interest.
judicata "bars a second, subsequent action when (1) the
prior action was decided on the merits, (2) both actions
involve the same parties or their privies, and (3) the matter
in the second case was, or could have been, resolved in the
first." Buck v. Thomas M. Cooley Law Sch., 597
F.3d 812, 817 (6th Cir. 2010) (quoting Abbott v.
Michigan, 474 F.3d 324, 331 (6th Cir. 2007)). "The
burden of proving res judicata is on the party asserting
it." Id. Plaintiff does not carry her burden.
Plaintiff simply concludes that res judicata applies.
See ECF 50, PgID 460. Second, Plaintiff
misrepresents the state court's decision (and her own
representations made in state court). The following exchange
during the ...