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Thorpe v. Ertz

United States District Court, D. Alaska

January 29, 2018

Arthur R. Thorpe, Plaintiff,
Ralph V. Ertz, Jr. d/b/a Ralph Ertz Attorney at Law, and Michael Rose Defendants.




         At docket 30 defendants Ralph V. Ertz, Jr. d/b/a Ralph Ertz Attorney at Law and Michael Rose (collectively, “Ertz”) move pursuant to Federal Rule of Civil Procedure 56 for summary judgment on all claims brought by plaintiff Arthur R. Thorpe (“Thorpe”). Ertz supports the motion with affidavits at docket 31 and 32, a memorandum of points and authorities at docket 33, and exhibits at dockets 34 through 52. Thorpe opposes the motion at docket 63 and submits a declaration in support of the opposition at docket 64. Ertz replies at docket 65. Oral argument was not requested and would not assist the court.


         Ertz is the lawyer who represented Valli Vue Estates Property Owners Association in the state small claims action it filed against Thorpe in 2014 for unpaid homeowner's association dues and late fees (“Valli Vue I”).[1] After Thorpe did not answer the complaint in that case, Ertz moved for default judgment.[2] Ertz also sought attorney's fees, asserting that the declarations of the homeowner's association permitted “full, reasonable attorney fees.”[3] On August 5, 2014, a $2, 533.61 default judgment was entered, which included an award of full attorney's fees of $911.50.[4]

         On August 6, 2015, Thorpe moved for relief from the judgment.[5] Thorpe argued that the attorney's fee award conflicted with District Court Rule of Civil Procedure 20(a), which limits the amount of attorney's fees that may be awarded with entry of default judgment to “10% of the judgment or reasonable actual fees, whichever is less.”[6] After noting that the record before it did not include the Declarations of the homeowner's association, the small claims court granted the motion and reduced the attorney's fee award to 10% of the default judgment, or $152.71.[7]

         In this action, Thorpe asserts two causes of action under the federal Fair Debt Collection Practices Act (“FDCPA”) and two causes of action under Alaska's Unfair Trade Practices and Consumer Protection Act (“UTPCPA”). Specifically, in Counts I and II, respectively, Thorpe alleges that Ertz's pursuit of excessive attorney's fees violated 15 U.S.C. §§ 1962f (unfair or unconscionable means of attempting to collect a debt) and 1962e (false, deceptive, or misleading representations in connection with the collection of a debt). He raises in Count III a violation of AS 45.50.471 (unfair or deceptive acts or practices) and in Count IV derivative liability under the UTPCPA due to the FDCPA violations. Ertz now moves for summary judgment on all claims as time-barred and without merit.


         Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[8] The materiality requirement ensures that “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”[9] Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[10] However, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”[11]

         The moving party has the burden of showing that there is no genuine dispute as to any material fact.[12] Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.[13] Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.[14] All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant.[15] However, the non-moving party may not rest upon mere allegations or denials but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.[16]


         A. Federal Claims (Counts I and II)

         The FDCPA was enacted to eliminate abusive debt collection practices, ensure that debt collectors who abstain from those practices are not competitively disadvantaged, and to promote consistent state action to protect consumers.[17] The FDCPA regulates interactions between consumer debtors and “debt collector[s], ” defined to include any person who “regularly collects . . . debts owed or due or asserted to be owed or due another.”[18] A lawyer regularly engaged in debt collection activity, even litigation, is considered a debt collector.[19] A debt collector who violates the FDCPA is liable for actual damages and additional damages not to exceed $1, 000.[20]Under the FDCPA, a plaintiff must bring suit “within one year from the date on which the violation occurs.”[21]

         Thorpe filed the complaint in the instant action on July 28, 2016.[22] To survive summary judgment, Thorpe's federal claims must not have accrued prior to July 28, 2015. The record shows that Ertz moved for attorney's fees in Valli Vue I on July 21, 2014, [23] more than two years before Thorpe filed the instant complaint.[24] Thorpe also does not dispute that no debt collection activity occurred after July 23, 2015, when Ertz filed a final motion for Thorpe to appear at a debtor's exam.[25]

         Thorpe nonetheless urges the court to apply the continuing violation doctrine to find his FDCPA claims timely. The continuing violation doctrine applies to “repeated instances or continuing acts of the same nature.”[26] As applied to debt collection claims, the continuing violation doctrine permits recovery for actions outside the limitations period if they are sufficiently linked to unlawful conduct within the limitations period.[27] In support of his continuing violation theory, Thorpe points to two filings Ertz submitted in Valli Vue I: (1) the August 12, 2015, opposition to Thorpe's motion for relief from the judgment; and (2) the September 18, 2015, motion to reconsider the order granting relief from the judgment.[28] According to Thorpe, “[t]hese motions were continued unlawful attempts to collect an unauthorized amount in attorney's fees, were directly related to Defendants' original unlawful act of seeking an unlawful amount in attorney's fees, and they occurred less than one year before Thorpe filed the [instant] case on July 28, 2016.”[29]

         As an initial matter, not all courts agree that the continuing violation doctrine is applicable under § 1692k(d).[30] It is unnecessary to answer that question here because, in any event, the continuing violation doctrine is inapplicable under the facts of this case. Thorpe does not cite to any case that supports his contention that subsequent filings made in the course of litigation constitute continuing, separate violations of the FDCPA.[31] Moreover, the court is unpersuaded that the mere act of Ertz re-asserting his client's position during litigation restarted the limitations period anew.[32] The court thus finds that Thorpe's claims under the FDCPA are time-barred, and summary judgment is granted on those claims.

         B. State Claims ...

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