Hicken v. Arnold, Anderson & Dove, PLLP, 137 F. Supp. 2d 1141 (D. Minn. 2001)

*1142 Thomas J. Lyons, Jr., Little Canada, MN, counsel for plaintiff.

Michael A. Klutho, Christopher R. Morris, Shalanda D. Ballard, Bassford, Lockhart, Truesdell & Briggs, Minneapolis, MN, for defendants.

DOTY, District Judge.

This matter is before the court on the defendants' motion for summary judgment. Based on a review of the file, record, and proceedings herein, the court grants defendants' motion.

Plaintiff Scott Hicken ("Hicken") and his wife were divorced in 1995. Prior to entry of the divorce decree, Hicken negotiated a marital termination agreement with his wife's attorney, which divided the assets and liabilities of the marriage. The agreement was approved and accepted by the Dakota County District Court and incorporated into the final judgment and decree.

Following the divorce, Hicken's ex-wife retained Arnold, Anderson & Dove, P.L.L.P. and attorney Richard Schieffer (collectively "defendants") to enforce the terms of the decree. Schieffer filed a post-decree motion regarding distribution of the marital estate and also sent letters to Hicken's attorney discussing the divorce decree and pending motion. The Dakota County District Court granted the motion and entered judgment against Hicken pursuant to the divorce decree. Hicken then brought suit against Schieffer and his law firm claiming defendants' efforts on behalf of Hicken's ex-wife to enforce the terms of the divorce decree violated the Fair Debt Collection Practices Act. Defendants move for summary judgment, arguing that the Act does not apply.

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party bears the burden of demonstrating to the court that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A fact is material only when its resolution affects the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A factual dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. See id. at 250, 106 S. Ct. 2505.

On a motion for summary judgment, all evidence and inferences are to be viewed in a light most favorable to the nonmoving party. See id. at 255, 106 S. Ct. 2505. The nonmoving party, however, may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. See Celotex, 477 U.S. at 324, 106 S. Ct. 2548. Moreover, if a plaintiff cannot support each essential element of its claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. See id. at 322-23, 106 S. Ct. 2548. With this standard at hand, the court considers the defendants' motion for summary judgment.

Congress enacted the Fair Debt Collection Practices Act (FDCPA) in 1977 as an amendment to the Consumer Credit Protection Act "to protect consumers from a host of unfair, harassing, and deceptive debt collection practices without imposing unnecessary restrictions on ethical debt collectors." S.Rep. No. 95-382, at 1-2 *1143 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696. The FDCPA defines "debt" as

any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

15 U.S.C. § 1692a(5) (emphasis added). As the plain language of the statute indicates, not all obligations to pay are considered debts subject to the FDCPA. Rather, the FDCPA may be triggered only when an obligation to pay arises out of a consumer transaction. Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir. 1992) (holding that the FDCPA applies only to "consumer debts" incurred "primarily for personal, family, or household purposes"). At a minimum, the transaction must involve some kind of business dealing or other consensual consumer obligation. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir.1998); Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir.1997) ("[T]he FDCPA limits its reach to those obligations to pay arising from consensual transactions, where parties negotiate or contract for consumer-related goods or services").

Defendants contend that this case is factually analogous to the collection of child support payments, which courts have consistently held is not covered under the FDCPA. Mabe v. G.C. Servs. Ltd. Partnership, 32 F.3d 86 (4th Cir.1994); Battye v. Child Support Servs., Inc., 873 F. Supp. 103 (N.D.Ill.1994). In Mabe, the appellate court concluded that because child support payments were imposed by the state, they were not incurred in exchange for consumer goods and services and therefore did not trigger FDCPA coverage. 32 F.3d at 88. Similarly, in Battye, the district court dismissed plaintiff's complaint on the grounds that the child support obligation on which plaintiff's claim was based was "not incurred as a `consumer,' nor did it arise out of a `transaction' in which [plaintiff] obtained credit in order to pay for personal goods or services." 873 F. Supp. at 105-06.

Hicken rejects the analogy to these child support cases, pointing to a 1995 informal opinion letter from a member of the Federal Trade Commission staff which indicates that while child support and spousal support do not arise from a "transaction," a money or property award would be a "debt" if it were the result of an agreement between the parties. (Lyons Aff., Exh. 3). Hicken argues that because the marital termination agreement was "the product of a hard-bargained negotiation" between he and his ex-wife which altered the legal relations between them and imposed on Hicken a new financial obligation, it is a "transaction" covered by the FDCPA.

The court accepts that a negotiated marital settlement agreement is not analogous to a court's order for child support, which is typically based on a mathematical formula set out in the state statute. See, e.g., Minn.Stat. Ann. § 518.551, subd. 5. However, the dissolution of a marriage, with all of its attendant negotiations, is simply not a transaction between consumers. Hicken's property settlement obligations under the terms of the divorce decree did not arise out of a consensual consumer obligation or business dealing and therefore does not implicate a "transaction" within the meaning of the FDCPA. See Staub v. Harris, 626 F.2d 275, 278 (3rd Cir.1980) (holding that "at a minimum, the [FDCPA] contemplates that the debt has arisen as a result of the rendition of a service or purchase of property or other item of value"). Based on Hicken's failure to establish that the FDCPA applies, his *1144 claim must be dismissed on defendants' motion for summary judgment.^[1]

For the foregoing reasons, IT IS HEREBY ORDERED that defendants' motion for summary judgment is granted.

LET JUDGMENT BE ENTERED ACCORDINGLY.

[1] Defendants also contend that dismissal is proper because they are not debt collectors under the FDCPA. Based on the determination that the negotiated marital termination agreement does not constitute a "debt" under the Act, the court will not address this additional issue.