Hemmingsen v. Messerli & Kramer, P.A.
2012 U.S. App. LEXIS 5502
| 8th Cir. | 2012Background
- Hemmingsen opened a Discover Bank credit card account in September 2002 and was added to it by husband George via a November 2002 phone action.
- The couple divorced in 2005; their Marital Termination Agreement listed the account and attributed the debt to George, with Hemmingsen held harmless.
- Messerli & Kramer (M & K) sued to recover the balance in state court; Hemmingsen later moved for summary judgment, denying she ever opened, used, or benefited from the account.
- Discover later produced a May 2003 $20 payment from Hemmingsen on the joint account, which Hemmingsen acknowledged in a deposition.
- The district court dismissed Hemmingsen’s FDCPA claims and state-law claims; the district court also found Hemmingsen could not prove deceit under Minn. Stat. § 418.071.
- The Eighth Circuit affirmed the dismissal on FDCPA merits, and held the state-law treble-damages claim was not viable for collateral relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA applicability to attorney litigation conduct | Hemmingsen argues M & K’s summary-judgment filings contained false statements. | M & K asserts statements reflected real positions and facts; no deception. | FDCPA claims dismissed on merits; statements not false or misleading. |
| Scope of 1692e/1692d against litigation statements to court | Hemmingsen contends statements to the court were false and deceptive to obtain relief. | M & K contends facts supported by law and records; not deceptive. | Not actionable as to direct misrepresentation to the debtor; court affirmed dismissal. |
| Effect of Heintz and case-law on attorney-debt collector actions | Hemmingsen argues broader application of § 1692e to attorney representations. | Defendant urges careful, case-by-case application; broad rule would undermine remedies. | Court declined broad rule; adopted case-by-case approach for litigation-related conduct. |
| Minnesota § 418.071 claim viability in collateral action | Hemmingsen seeks treble damages for deceit in litigation. | Statutory remedy not available in collateral action; must be in the underlying proceeding. | Affirmed dismissal; statute not extendable to collateral action. |
Key Cases Cited
- Heintz v. Jenkins, 514 U.S. 291 (1995) (FDCPA applies to attorneys in debt collection litigation; exemptions repealed)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605 (2010) (conduct-regulating provisions; caution in applying to attorneys)
- O'Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938 (7th Cir. 2011) (false statements to third party may implicate § 1692e)
- Volden v. Innovative Financial Systems, Inc., 440 F.3d 947 (8th Cir. 2006) (misrepresentation to third party not actionable when not to plaintiff)
- Smith v. Chaffee, 232 N.W.2d 515 (Minn. 1930) (attorney deceit trebled damages under § 418.071 in proceeding where deceit occurred)