350 P.3d 71
Mont.2015Background
- In January 2008 a Montana court appointed Nancy Smith guardian ad litem (GAL) for Amour’s children and ordered the marital estate to pay the GAL; in February 2008 Amour signed a contract with Smith for GAL services at $90/hour.
- Amour paid some invoices but stopped in May 2010; Smith assigned unpaid bills to Collection Professionals, Inc. (CPI) in November 2011.
- The dissolution court’s January 2012 order allocated individual responsibility for the GAL fees to each party (i.e., half to Amour).
- CPI sued to collect the assigned account; Amour counterclaimed alleging FDCPA violation, defamation, and violation of the Montana Consumer Protection Act.
- The District Court granted summary judgment to Smith (on state claims) and to CPI (on FDCPA and on liability for the unpaid account), later entering judgment for CPI for $7,408.70 plus interest.
- The Montana Supreme Court affirmed: FDCPA did not apply, Smith was entitled to quasi-judicial immunity, and the damages award (with interest) was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDCPA applies to CPI’s collection | Amour: debt arose from her February 2008 contract with Smith and is a consumer "debt" under FDCPA | CPI: obligation arose from court appointment/order, not a consensual consumer transaction, so FDCPA doesn't apply | FDCPA does not apply because obligation did not arise from a consensual transaction; summary judgment for CPI |
| Whether Smith is liable on state claims (defamation; consumer protection) | Amour: Smith’s billing/collection statements were false/deceptive and actionable | Smith: actions were within GAL role and supported by billing records; quasi-judicial immunity applies; Amour produced no admissible sworn evidence | Smith entitled to judgment: quasi-judicial immunity protects GAL functions and Amour failed to present admissible triable evidence |
| Whether disputed billing amount ($7,408.70) was properly awarded | Amour: factual dispute over billed amount and competency of services precludes summary resolution | CPI: provided affidavit and billing records establishing amount due; burden shifted to Amour to produce evidence contesting amount | Judgment for CPI on $7,408.70 upheld; Amour produced no admissible evidence to create triable issue |
| Whether interest on principal was proper | Amour: challenges amount and award of interest | CPI: right to recover vested on assignment date; amount capable of mathematical certainty so statutory pre-judgment interest applies | Interest award affirmed under § 27-1-211, MCA because claim was certain/capable of calculation and vested on assignment date |
Key Cases Cited
- Hawthorne v. Mac Adjustment, 140 F.3d 1367 (11th Cir.) (not all obligations are FDCPA "debts"; focus on consensual consumer transactions)
- Gulley v. Markoff & Krasny, 664 F.3d 1073 (7th Cir.) (FDCPA does not reach certain nonconsensual obligations)
- Surprenant v. Mulcrone, 44 A.3d 465 (N.H. 2012) (GALs entitled to absolute quasi-judicial immunity for delegated duties)
- Carrubba v. Moskowitz, 877 A.2d 773 (Conn. 2005) (judicial immunity protects GAL independence and shields against harassing suits)
- Tindell v. Rogosheske, 428 N.W.2d 386 (Minn. 1988) (GAL must be free to perform vigorous, autonomous representation of the child)
- Billups v. Scott, 571 N.W.2d 603 (Neb.) (judicial immunity extends to performance of duties within guardian’s authority)
- Citizens First Nat’l Bank of Wolf Point v. Moe Motor Co., 248 Mont. 495, 813 P.2d 400 (Mont.) (truth is a complete defense to defamation)