Timothy Parent v. Home Depot U.s.a., Incorporated

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3665
TIMOTHY PARENT, et al.,
Plaintiffs-Appellants,
v.
HOME DEPOT U.S.A., INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:09-CV-00951-WCG—William C. Griesbach, Judge.
ARGUED APRIL 13, 2012—DECIDED SEPTEMBER 24, 2012
Before BAUER, KANNE, and TINDER, Circuit Judges.
BAUER, Circuit Judge. Plaintiffs-appellants, Timothy
and Brenda Parent (“the Parents”), filed a lawsuit in
Wisconsin state court against Citibank and defen-
dant-appellee, Home Depot, for violations of the
Wisconsin Consumer Act (“the Act”). The case was re-
moved to district court where all claims against Citibank
were dismissed, as were multiple claims against Home
Depot. After discovery, the district court granted Home

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2 No. 11-3665
Depot’s motion for summary judgment on the remaining
claims. The Parents appealed; we affirm.
I. BACKGROUND
In August 2002, Brenda Parent applied for and re-
ceived a Home Depot credit card issued by Citibank. The
card bore Home Depot’s name and could only be used
for purchases at Home Depot. Brenda and her husband
Timothy, the owner of Crivitz Log Cabins LLC (“CLC”),
were the only authorized users of the card. In April 2005,
Dr. Lee Krahenbuhl, who also had a Citibank-issued
Home Depot credit card, entered into an agreement
with CLC to build a log cabin for speculative resale. A
log cabin package was purchased over the phone from
Home Depot for $9,761.64 and charged to Krahenbuhl’s
Home Depot credit card. The record indicates that the
log cabin package materials were approved by, delivered
to, and signed for by either Timothy Parent or another
authorized representative of CLC. CLC eventually built
and sold the log cabin.
Within a few months, the business relationship between
Krahenbuhl and CLC deteriorated, and Krahenbuhl
disputed the $9,761.64 charge with both Home Depot
and Citibank. In October 2005, Citibank investigated the
$9,761.64 charge on Krahenbuhl’s account. Based on its
findings, which included customer order forms and
documents bearing Timothy Parent’s signature, Citibank
transferred the charge from Krahenbuhl’s Home Depot
credit card to the Parents’ Home Depot credit card.

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No. 11-3665 3
By September 2006, CLC and Krahenbuhl were
litigating their dispute in Brown County Circuit Court.
Eventually they reached a settlement agreement through
mediation, which the Parents say they thought included
payment of the $9,761.64 credit card charge. It was not
until almost one year later, the Parents say, that they
became aware that the $9,761.64 charge had been trans-
ferred to their own Home Depot account. Over the
course of several months, the Parents challenged the
charge’s validity to both Citibank and Home Depot and
demanded that it be removed. Neither Citibank nor
Home Depot agreed and the charge remained.
Over time, the $9,761.64 balance accrued interest, re-
sulting in a total sum of approximately $21,000. The
Parents’ refusal to pay began to negatively impact their
credit and as a result they could no longer obtain the
credit they needed to operate their other business ven-
tures. In light of this, the Parents brought a lawsuit
in Wisconsin state court naming both Citibank and
Home Depot as defendants and asserting violations of
the Wisconsin Consumer Act. The Parents claimed that
the stress brought on by their financial setbacks resulted
in severe emotional distress, and that the damage done
to their credit together with the $9,761.64 charge,
entitled them to statutory and compensatory damages
exceeding $75,000. Citibank removed the suit to federal
court. On June 11, 2010, Citibank was dismissed from
the lawsuit.
Among the claims remaining against Home Depot were
violations of the following sections of the Wisconsin
Consumer Act:

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4 No. 11-3665
Wis. Stat. § 427.104(1)(j) which states, “[i]n attempting
to collect an alleged debt arising from a consumer
credit transaction or another consumer transaction . . .
where there is an agreement to defer payment, a debt
collector may not: . . . (j) [c]laim, or attempt to
threaten to enforce a right with knowledge or reason
to know that the right does not exist;
Wis. Stat. § 427.104(1)(c), which prohibits “[d]is-
clos[ing] or threaten[ing] to disclose information
adversely affecting the customer’s reputation for
credit worthiness with knowledge or reason to
know that the information is false”; and
Wis. Stat. § 421.108 which states, “[e]very agreement or
duty within chapters 421 to 427 imposes an obliga-
tion of good faith in its performance or enforcement.
‘Good faith’ means honesty in fact in the conduct or
transaction concerned and the observance of reason-
able commercial standards of fair dealing.”
After sufficient discovery, Home Depot moved for
summary judgment. The district court granted the
motion based on the Parents’ inability to present a triable
issue of fact. The district court ruled that the Parents
had failed to present sufficient evidence in support of
their claims that Home Depot had acted either directly
or indirectly in an attempt to collect a debt. The district
court’s ruling stated that Home Depot must have at-
tempted to collect a debt before a jury could find it guilty
of violating the aforementioned statutes.

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No. 11-3665 5
II. ANALYSIS
The Parents argue they submitted sufficient evidence
to proceed to trial and that the district court improperly
ruled in favor of Home Depot on summary judgment.
The critical issue on which the district court ruled, and
which we review first, is whether or not the Parents
presented sufficient evidence upon which a jury could
conclude that Home Depot was acting to collect a debt.
We then review whether Home Depot violated its obliga-
tion of good faith, and whether the district court’s
grant of summary judgment was based on improper
evidence.
We review a district court’s grant of summary judg-
ment de novo and draw all reasonable factual inferences
in favor of the nonmoving party. Mercatus Group, LLC v.
Lake Forest Hosp., 641 F.3d 834, 839 (7th Cir. 2011). “Sum-
mary judgment is appropriate if the pleadings, deposi-
tions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). “[T]he plain language of Rule 56(c)
mandates the entry of summary judgment . . . 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.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The
mere existence of a factual dispute is insufficient to over-
come a motion for summary judgment; instead the

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6 No. 11-3665
nonmovant must present definite, competent evidence in
rebuttal. Butts v. Aurora Health Care, Inc., 387 F.3d 921,
924 (7th Cir. 2004). As such, we will only reverse if we
find that a reasonable jury could have found in favor of
the Parents. See Mercatus, 641 F.3d at 839.
In its ruling on summary judgment, the district court
properly noted that the Parents’ first two claims, asserting
violations of Wis. Stat. §§ 427.104(1)(c) and (j), supra, at
a minimum required an attempt at debt collection by
Home Depot. The Act defines debt collection as “any
action, conduct or practice of soliciting claims for the
collection or in the collection of claims owed or due or
alleged to be owed or due a merchant by a customer.”
Wis. Stat. § 427.103(2). Similarly, the Act defines debt
collector as “any person engaging, directly or indirectly,
in debt collection, and includes any person who sells, or
offers to sell, forms represented to be a collection
system, device or scheme, intended or calculated to be
used to collect claims.” Wis. Stat. § 427.103(3).
To support their claim that Home Depot acted as a
debt collector, the Parents relied heavily on Patzka v.
Viturbo College, 917 F. Supp. 654 (W.D. Wis. 1996), claiming
that Home Depot and Citibank were engaged in an
agency relationship.
In Patzka, the plaintiff brought a lawsuit against
Viturbo College and the debt collection agency the
college hired, Security Credit. The plaintiff argued that
the defendants had attempted to collect unauthorized
interest and collection fees on the plaintiff’s student loan,
in violation of the Federal Fair Debt Collection Practices

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No. 11-3665 7
Act and the Wisconsin Consumer Act; the court granted
the plaintiff partial summary judgment. Patzka, 917
F. Supp. at 657. In Patzka, it was undisputed that Viturbo
College was considered a debt collector under the Wis-
consin Consumer Act. Id. at 661. The court defined
an agency relationship as one which “results from the
manifestation of consent by one person to another that
the other shall act on the person’s behalf and be subject
to the person’s control.” Id. The district court deter-
mined that Security Credit was an agent of Viturbo Col-
lege, in part because “[Viturbo College] require[d] that . . .
Security Credit collect the debt, that [Viturbo College]
received plaintiff’s payments from . . . Security Credit, and
[that Viturbo College] told . . . Security Credit to hold off
on its collection efforts and functioned as the primary
source of information about the plaintiff’s debt.” Id.
Viturbo College hired Security Credit to act on its behalf,
though Viturbo College actively involved itself in the
collection process too, even if only indirectly.
The Parents claim that the relationship between Home
Depot and Citibank was analogous to the one in Patzka.
It is not. Attached to their motion for summary judg-
ment, Home Depot submitted the affidavit of Elizabeth
Barnette, who testified on behalf of Citibank. In her
affidavit, Barnette clarified the relationship between
Citibank and Home Depot. She stated that it was Citi-
bank, and not Home Depot, that issued the Parents’
credit card, that owned and maintained the Par-
ents’ credit card account, that entered into the cardholder
agreement with the Parents, that assessed interest, and
that supplied information to credit reporting agencies.

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8 No. 11-3665
Thus, as the district court stated, the debt in question
is ultimately “owed to Citibank, not to Home Depot—
which did not extend any credit to [the Parents] itself.”
In response, the Parents argued that Home Depot
necessarily had a direct monetary interest in Citibank’s
recovery of the original $9,761.64 debt because of their
reliance on Citibank to be paid for the sale of merchandise,
specifically the log cabin materials. So, the Parents
claim any interactions between Home Depot and
the Parents qualified as an attempt to collect its debt.
But whether or not Home Depot relied on Citibank to
get paid for their sales is irrelevant; the Parents failed
to present any competent evidence that Home Depot
attempted to collect a debt from them. Without such
evidence, a reasonable jury could not conclude that
Home Depot violated the Wisconsin Consumer Act.
Next, the Parents argue that the district court improp-
erly granted summary judgment with respect to their
claim that Home Depot violated Wis. Stat. § 421.108. As
the district court stated, this section of the Wisconsin
Consumer Act imposes an obligation of good faith with
respect to the performance or enforcement of duties or
agreements within Chapters 421-427 of the Act. The
Parents argued at summary judgment, and argue again
on appeal, that Home Depot violated § 421.108 by lying
to the Parents, falsely informing Citibank about the
nature of their debt, and assisting Citibank in their
attempt to collect the $9,761.64 debt. Putting aside the
fact that the Parents do not point to any specific duty
which Home Depot had an obligation to perform or

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No. 11-3665 9
enforce in good faith, the Parents have failed to back up
their allegations of bad faith and dishonesty with
definite and competent evidence as required to survive
the motion for summary judgment. The district court’s
grant of summary judgment was proper.
In their final argument, the Parents state that the
district court improperly relieved Home Depot of
their burden of production and relied on inadmissible
evidence when ruling on summary judgment. Therefore,
the Parents claim, they were relieved of their burden of
proof. The Parents are incorrect. The district court did not
relieve Home Depot of their responsibility to “identify[]
those portions of [the record] which it believe[d]
demonstrate[d] the absence of genuine issue of material
fact,” nor did the court improperly rely on inadmissible
evidence, nor were the Parents then relieved of their
burden to produce evidence sufficient “to establish the
existence of an element essential to [their] case”; a task
with which they proved unsuccessful. See Celotex, 477
U.S. at 322-23. It is not necessary to determine the ad-
missibility of each piece of evidence attached to Home
Depot’s motion for summary judgment. Home Depot
argued that it was not liable for the specific violations of
the Wisconsin Consumer Act asserted in the Parents’
complaint because it never attempted to collect a debt,
nor was it ever the owner of the debt in question. When
ruling on the Parents’ motion for reconsideration, the
district court stated the primary reason for the grant of
summary judgment was the Parents’ failure to present
evidence to counter the motion.

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III. CONCLUSION
For the reasons stated herein, we AFFIRM the judgment
of the district court.
9-24-12

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