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Riermersma v. Messerli & Kramer, P.A. : US District Court : CREDIT - prayer for relief including attorney fees not a violation of FDCPA

Civil No. 07-3898(DSD/SRN)
Ryan Riermersma, on behalf
of himself and all others
similarly situated,
Messerli & Kramer, P.A.,
Thomas J. Lyons, Jr., Esq. and Trista M. Roy, Esq.,
Consumer Justice Center, 367 Commerce Court, Vadnais
Heights, MN 55127, counsel for plaintiff.
Christopher R. Morris, Esq., David A. Turner, Esq.,
Michael A. Klutho, Esq. and Bassford Remele, P.A., 33
South Sixth Street, Suite 3800, Minneapolis, MN 55402,
counsel for defendant.
This matter is before the court upon defendants motion for
judgment on the pleadings or summary judgment and on plaintiffs
motions for summary judgment and class certification. Based upon
a review of the file and record, the proceedings herein, and for
the reasons stated, the court grants defendants motion.
Plaintiff Ryan Riemersma (Riemersma) alleges that defendant
Messerli & Kramer, P.A. (M&K), violated the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. 1692a-p, in collecting a
consumer debt he owed. Riemersma incurred the underlying debt on
a Providian National Bank (Providian) credit card sometime prior
to February 6, 2007. After he fell behind on his payments,
Providian sold the account to Pipestone Financial LLC, which in
turn hired M&K on a contingent basis to collect the debt. On
February 13, 2007, M&K sent Riemersma a summons and state court
complaint describing in the prayer for relief the debt due and
owing as ,456.01 - comprised of ,182.25 in principal,
,061.45 in interest and 1.31 in reasonable attorneys fees
less payments of 0. (Roy Aff. Ex. A.)
On September 6, 2007, Riemersma filed this action alleging
that M&Ks collection complaint, in listing attorneys fees as due
and owing, violates the FDCPA. M&K now moves for judgment on the
pleadings or summary judgment. Riemersma in turn moves for summary
judgment and class certification.
I. Standard of Review
Federal Rule of Civil Procedure 12(c) provides that if, on a
motion for judgment on the pleadings, matters outside the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of
as provided in Rule 56. Both parties have submitted materials
outside of the pleadings, so the court treats the motion as one for
summary judgment pursuant to Federal Rule of Civil Procedure 56.
Rule 56(c) provides that summary judgment is appropriate if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is
material only when its resolution affects the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute is genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party. See id. at
252. On a motion for summary judgment, all evidence and inferences
are viewed in a light most favorable to the nonmoving party. See
id. at 255. The nonmoving party, however, may not rest upon mere
denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial. See Celotex,
477 U.S. at 324. Moreover, if a plaintiff cannot support each
essential element of his or her claim, summary judgment must be
granted because a complete failure of proof regarding an essential
element necessarily renders all other facts immaterial. Id. at
II. The Fair Debt Collection Practices Act
Riemersma argues that M&K violated the FDCPA by demanding
1.31 in attorneys fees in the collection complaint. He asserts
that this amount was a deceptive, misleading and false
representation because it was not actually due and owing. The
FDCPA prohibits any false, deceptive or misleading representation
or means in connection with the collection of any debt, including
the false representation of any services rendered or compensation
which may be lawfully received by any debt collector for the
collection of a debt. 15 U.S.C. 1692e. Further, a debt
collector cannot collect any amount (including any interest, fee,
charge or expense incidental to the principal obligation) unless
such amount is expressly authorized by the agreement creating the
debt or permitted by law. Id. 1692f(1).
Riemersma relies heavily on Munoz v. Pipestone Financial, LLC.
513 F. Supp. 2d 1076 (D. Minn. 2007). Similar to the present case,
in Munoz a debtor filed suit against M&K under the FDCPA for
requesting attorney fees in a state court collection complaint.
Id. at 1078. Relying on Stall v. First National Bank of Buhl, 375
N.W.2d 841 (Minn. Ct. App. 1985), the court determined that the
creditor had not actually incurred the attorneys fees at the time
it alleged that they were due and owing and therefore had violated
the FDCPA. Munoz, 513 F. Supp. 2d at 1083. Riemersma argues that
Munoz dictates the outcome in his case.
The court, however, does not find the reasoning in Munoz
persuasive and will not follow it here. Stall concerns a dispute
between an attorney seeking fees from his client. 375 N.W.2d at
843-45. It has nothing to do with the FDCPA, nor does it address
the main issue in this case: the significance of M&Ks allegedly
improper demand as expressed in the prayer for relief. A prayer
for relief is [a] request addressed to the court and appearing at
the end of a pleading. Blacks Law Dictionary 1213 (8th ed.
2004). As such, a request for attorneys fees within the prayer
for relief is not directed at the debtor. Rather, it is part of
the ultimate satisfaction sought by a plaintiff and asked of the
court. For this reason, M&Ks request for attorneys fees does not
violate the FDCPA. See Argentieri v. Fisher Landscapes, Inc., 15
F. Supp. 2d 55, 61-62 (D. Mass. 1998) (request for attorneys fees
in prayer for relief does not violate FDCPA); Winn v. Unifund CCR
Partners, No. 06-447, 2007 WL 974099, at *2-3 (D. Ariz. March 30,
2007) (same); Rael v. Davis, No. 06-81, 2006 WL 2346396, at *4-5
(S.D. Ind. Aug. 11, 2006) (same).
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Messerli & Kramers motion for judgment on the
pleadings or in the alternative for summary judgment [Doc. No. 20]
is granted.
2. Plaintiff Ryan Riemersmas motion for summary judgment
[Doc. No. 30] is denied.
3. Plaintiff Ryan Riemersmas motion for class certification
[Doc. No. 3] is denied as moot.
Dated: June 9, 2008
s/David S. Doty
David S. Doty, Judge
United States District Court


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