105 So. 3d 1123
Miss. Ct. App.2012Background
- Trustmark sued Turner on Sept. 27, 2010 alleging she opened a credit-card account and owed $3,796.91.
- Turner denied the debt; Trustmark moved for summary judgment claiming no genuine issues of material fact.
- Turner filed a July 14, 2011 response arguing genuine issues as to debt and FDCPA compliance.
- Circuit court held a hearing on July 20, 2011 and granted Trustmark’s summary judgment on Aug. 25, 2011, awarding $5,711.32 plus interest and costs.
- Turner filed notice of appeal on Sept. 20, 2011.
- Standard of review is de novo for summary judgments; movant must show no genuine issue of material fact, with the nonmovant given the benefit of the doubt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Genuine issue of material fact as to Turner owing the debt | Turner argues genuine issues exist as to the debt. | Trustmark showed a sworn affidavit and statements; no dispute as to debt. | No genuine issue; summary judgment affirmed. |
| FDCPA notice attached to complaint complied as initial communication | Notice attachment to complaint violated 15 U.S.C. 1692g(a). | Notice attached to summons/complaint may constitute initial communication. | Issue without merit; FDCPA notice properly considered. |
Key Cases Cited
- Monsanto Co. v. Hall, 912 So.2d 134 (Miss. 2005) (de novo review for summary judgments; burden on movant)
- Hataway v. Nicholls, 893 So.2d 1054 (Miss. 2005) (summary judgment standard guidance)
- Price v. Purdue Pharma Co., 920 So.2d 479 (Miss. 2006) (burden shifting in summary judgment; nonmovant gets benefit of doubt)
- Am. Legion Ladnier Post No. 42 v. Ocean Springs, 562 So.2d 103 (Miss. 1990) (conflict of sworn statements can create issues of fact)
- Stuckey v. Provident Bank, 912 So.2d 859 (Miss. 2005) (denials in pleadings alone insufficient to raise issues without specific facts)
- Sprouse v. City Credits Co., 126 F.Supp.2d 1088 (S.D. Ohio 2000) (initial communications concept under FDCPA when attached to summons/complaint)
- Senftle v. Landau, 390 F.Supp.2d 463 (D. Md. 2005) (FDCPA initial communication considerations)