United States District Court, E.D. Pennsylvania
DONALD G. HEAVEN AND DEBRA A. LUCAS-HEAVEN, HUSBAND AND WIFE
PORTFOLIO RECOVERY ASSOCIATES, LLC, ET AL.
MEMORANDUM RE CROSS MOTIONS FOR SUMMARY
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.
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.
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.
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. KeyBank's business records indicate
that Mrs. Lucas-Heaven called KeyBank on November 23, 2016
regarding an exemption. Def.'s Mot., DSOF ¶ 25.
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.
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 ¶
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).
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.).
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.). 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.
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 ...