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Heaven v. Portfolio Recovery Associates, LLC

United States District Court, E.D. Pennsylvania

March 28, 2018

DONALD G. HEAVEN AND DEBRA A. LUCAS-HEAVEN, HUSBAND AND WIFE
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, ET AL.

          MEMORANDUM RE CROSS MOTIONS FOR SUMMARY JUDGMENT

          Baylson, J.

         In this case, we must determine whether genuine disputes of material fact preclude summary judgment on behalf of Plaintiffs, husband and wife Donald Heaven and Debra Lucas-Heaven, or Defendant, KeyBank, N.A. The Heavens initiated this suit, alleging that KeyBank, along with defendants Portfolio Recovery Associates, LLC (“PRA”), law firm Blatt, Hasenmiller, Leibsker & Moore, LLC (“BHLM”), and attorney Kami Miller violated the FDCPA and the UTPCPL, and committed fraud and conversion by unlawfully garnishing funds from a joint marital bank account in the name of both Plaintiffs, in satisfaction of a judgment against Mr. Heaven alone. For the reasons discussed below, we grant summary judgment for Defendant KeyBank in full, and deny summary judgment for Plaintiffs Donald Heaven and Debra Lucas-Heaven.

         I. UNDISPUTED FACTS

         The following is a fair account of the factual assertions at issue in this case, as taken from both parties Statements of Fact and not genuinely disputed. On October 3, 2016, PRA, originally named as a Defendant in this action, obtained a judgment in its favor against Plaintiff Donald Heaven in the amount of $9, 018.96 in the Bucks County Court of Common Pleas. ECF No. 38, Def.'s Amended Mot. for Summary Judgment (“Def.'s Mot.”), Def.'s Statement of Facts (“DSOF”) ¶ 1. On October 11, 2016, First Niagara Bank, N.A., merged into Defendant KeyBank, N.A. Def.'s Mot., DSOF ¶ 2. As of November 1, 2016, Plaintiffs Donald and Debra co-owned a joint bank account with KeyBank (“the Account”), with account number ending 1883. Def.'s Mot., DSOF ¶ 3. The bank account did not denote the relationship between Donald and Debra as co-owners. Def.'s Mot., DSOF ¶ 3; ECF No. 50, Plaintiffs' Response to Defendant's Am. Mot. for Summary Judgment and Counter-Motion for Summary Judgment (“Pl.s' Mot.”), Pl.s' Response to Def.'s Statement of Facts (“PR”) ¶ 3. On November 1, 2016, Defendant law firm BHLM served a writ of execution and interrogatories on First Niagara Bank, predecessor-in-interest to Defendant KeyBank, to enforce the Judgment against Mr. Heaven. Def.'s Mot., DSOF ¶ 4.

         On or about November 1, 2016, Plaintiff Debra Lucas-Heaven discovered that she was unable to access the funds in the Account. Def.'s Mot., DSOF ¶ 5; Pl.s' Mot., PR ¶ 5. On November 2, 2016, KeyBank mailed a notice to Mr. Heaven indicating that $3, 761.21 of the Account funds were on hold due to the writ of execution. Def.'s Mot., DSOF ¶ 6. Included with the notice was a copy of the writ of execution, a copy of the interrogatories, and a blank exemption request form. Def.'s Mot., Exhibit 4, KeyBank Deposition Exhibit 6. On November 7, 2016 KeyBank mailed Mr. Heaven a second notice indicating that an additional $3, 761.21 of the Account funds was being held due to the writ, along with additional copies of the writ, the interrogatories, and the exemption form. Def.'s Mot., DSOF ¶¶ 8-9, Exhibit 4, KeyBank Deposition Exhibit 7. Donald Heaven received both notices, and while they were not sent directly to her, Debra Lucas-Heaven did see and read the notices. Def.'s Mot., DSOF ¶ 10; Pl.s' Mot., PR ¶ 10. KeyBank filed Answers to the interrogatories with the Bucks County Court of Common Pleas on November 14, 2016, and admitted that the Account held funds in the amount of $5, 806.94 . Def.'s Mot., DSOF ¶¶ 11-12; Pl.s' Mot., PR ¶¶ 11-12. On November 15, 2016, Mr. Heaven filed a request for an exemption in Debra Heaven-Lucas's name. Def.'s Mot., DSOF ¶ 13.

         On November 17, 2016, Defendant BHLM entered judgment against garnishee KeyBank in the amount of $5, 806.94. Def.'s Mot., DSOF ¶ 18. On November 18, 2016, the Bucks County Court held a hearing on Mr. Heaven's request for an exemption. Def.'s Mot., DSOF ¶ 19. PRA claims that it did not receive any notice of the Exemption Hearing because the Bucks County Court sent notice by email to an incorrect address for PRA's counsel, BHLM. Def.'s Mot., DSOF ¶ 20. Neither KeyBank nor PRA appeared at the Exemption Hearing on November 18, 2016, at which Bucks County Court Judge Waite issued a Bench Order granting Mr. Heaven's request for an exemption. Def.'s Mot., DSOF ¶¶ 22-23.[1] KeyBank's business records indicate that Mrs. Lucas-Heaven called KeyBank on November 23, 2016 regarding an exemption. Def.'s Mot., DSOF ¶ 25.

         By check dated November 29, 2016, KeyBank paid $5, 806.94 from the Account to BHLM to discharge the judgment entered against it. Def.'s Mot., DSOF ¶ 28, Exhibit 7. On December 16, 2016, Mrs. Lucas-Heaven informed counsel for KeyBank that she had filed and was granted a claim for an exemption regarding the funds in the Account. Def.'s Mot., DSOF ¶ 29. On or after December 16, 2016 counsel for KeyBank was for the first time provided with a copy of a document indicating that the Bucks County Court had granted Mrs. Lucas-Heaven an exemption. Def.'s Mot., DSOF ¶ 31. On December 22, 2016, Judge Waite of the Bucks County Court entered a written order indicating that the funds in the Account were exempt from garnishment. Def.'s Mot., DSOF ¶ 33; ECF No. 1, Complaint, Exhibit A, Entry 24. On or about December 22, 2016, the $5, 806.94 that had been paid to BHLM from the Account was returned to KeyBank. Def.'s Mot., DSOF ¶ 34. On or about December 29, 2016, KeyBank returned the $5, 806.94 to the Account. Def.'s Mot., DSOF ¶ 35. On or about December 31, 2016, Mrs. Heaven-Lucas became aware that the funds had been returned to the Account. Def.'s Mot., DSOF ¶ 36.

         Plaintiffs have provided no documentary evidence to support their allegation that they suffered losses in the amount of $524.58 as a result of charges by their creditors while the Account funds were unavailable to Plaintiffs. Def.'s Mot., DSOF ¶¶ 37-38; Pl.s' Mot., PR ¶¶ 37-38. Plaintiffs have provided no documentary evidence to support their allegation that they were charged and that they paid the late fees they allege they incurred. Def.'s Mot., DSOF ¶ 39; Pl.s' Mot., PR ¶ 39. KeyBank credited the Account for overdraft charges imposed during the time period when the funds were removed from the Account, however KeyBank did not refund a late charge they imposed on Plaintiffs' mortgage payments in the amount of $77.00 until one month after the Complaint was filed and served. Def.'s Mot., DSOF ¶ 42; Pl.s' Mot., PR ¶ 42.

         I. PROCEDURAL BACKGROUND

         The Heavens filed suit on February 16, 2017, in the Court of Common Pleas of Bucks County, alleging one count of Contempt of Court, two counts under the FDCPA, one count under the UTPCPL, one count of fraud, and one count of conversion. (ECF No. 1). Defendant BHLM, along with formerly named defendants Kami Miller and PRA, filed for removal to this Court on March 22, 2017. (ECF No. 1). BHLM, Ms. Miller, and PRA answered on March 29, 2017 and asserted a crossclaim against defendant KeyBank. (ECF No. 7). KeyBank answered the Complaint and the Crossclaim on April 14, 2017. (ECF No. 12). On April 21, 2017 the parties stipulated to the dismissal of Ms. Miller as a defendant, and to the dismissal of Ms. Miller's crossclaim against KeyBank. (ECF No. 14). KeyBank moved for summary judgment of the Heavens' claims on August 24, 2017, and moved for summary judgment of PRA and BHLM's crossclaims on August 20, 2017. (ECF No. 23; ECF No. 26.). The Heavens moved to defer or deny KeyBank's motion for summary judgment on August 29, 2017, in light of an ongoing discovery dispute. (ECF No. 24). BHLM dismissed its Crossclaim against KeyBank on November 29, 2017. (ECF No. 36). The parties stipulated to the dismissal of PRA from the action on November 20, 2017. (ECF No. 37).

         KeyBank filed an amended motion for summary judgment of the Heavens' claims on November 30, 2017. (ECF No. 38). That same day, the Heavens' responded to KeyBank's original motion for summary judgment and filed a counter motion for summary judgment against KeyBank. (ECF No. 41). This response included incorrectly numbered responses to KeyBank's Statement of Undisputed Material Facts. KeyBank replied in support of their Motion for Summary judgment on December 8, 2017 (ECF No. 42.) The Heavens then responded additionally to KeyBank's amended motion for summary judgment on December 12, 2017, and reasserted their counter-motion for summary judgment against KeyBank. (ECF No. 44). KeyBank responded to the Heavens' supplement to their response and counter motion for summary judgment on December 20, 2017 (ECF No. 47.).

         This Court held oral argument on all of the pending motions on February 20, 2018, at which the Court asked both parties to answer particular questions. The Heavens submitted written answers to those questions. On March 6, 2018 KeyBank submitted written answers to those questions and to the Heavens' responses to those questions (ECF No. 52.). Following argument the Heavens filed a corrected version of their Response to KeyBank's original motion for summary judgment with properly numbered responses to KeyBank's Statement of Undisputed Material Facts, along with the Heavens' original counter motion for summary judgment against KeyBank, without the supplemental material provided on December 12, 2017 (ECF No. 50.).[2] The Heavens then filed “Plaintiffs' Reply to Defendant's, Responses and Objections to KeyBank's Responses and Objections to Plaintiffs' Second Set of Request for Admissions, KeyBank's Responses and Objections to Plaintiffs' Second Set of Interrogatories and Fourth Set of Requests for Production of Documents” on March 12, 2018 (ECF No. 53.). The relevance of this filing is unclear.

         II. LEGAL STANDARD

         A district court should grant a motion for summary judgment if the movant can show “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 dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A ...


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