Midland Funding, LLC v. Pipkin

IN THE UTAH COURT OF APPEALS

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Midland Funding, LLC, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20110788‐CA
)
v. ) FILED
) (July 12, 2012)
Kenneth Pipkin, )
) 2012 UT App 185
Defendant and Appellant. )

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Fifth District, St. George Department, 110500860
The Honorable Eric A. Ludlow

Attorneys: Kenneth Pipkin, Hildale, Appellant Pro Se
Grady R. McNett, Draper, for Appellee

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Before Judges Voros, Davis, and Christiansen.

DAVIS, Judge:

¶1 Kenneth Pipkin, representing himself pro se, appeals the trial court’s grant of
summary judgment in favor of Midland Funding, LLC (Midland). Pipkin argues that
Midland’s request for summary judgment should have been denied because Midland
failed “to establish a prima facie case” or, alternatively, because there was a material
dispute of fact as to the existence of the debt Midland alleged Pipkin owed.1 We affirm.

1
Pipkin also argues that the Fair Debt Collection Practices Act (FDCPA), see
generally 15 U.S.C.A. §§ 1692‐1692p (2009 & Supp. 2012), precluded Midland from filing
a collection action against Pipkin until Pipkin received information that he timely
requested from Midland regarding the debt in accordance with the terms of the initial
collection letter Midland sent Pipkin. The letter stated that Midland would “suspend
[its] efforts to collect the debt (through a lawsuit, arbitration or otherwise) until [it]
mail[ed] the requested information to [Pipkin],” pursuant to the FDCPA. See generally
id. § 1692g(b) (2009) (“If the consumer notifies the debt collector in writing within the
thirty‐day period described in subsection (a) of this section that the debt, or any portion
thereof, is disputed, or that the consumer requests the name and address of the original
creditor, the debt collector shall cease collection of the debt, or any disputed portion
thereof, until the debt collector obtains verification of the debt or a copy of a judgment,
or the name and address of the original creditor, and a copy of such verification or
judgment, or name and address of the original creditor, is mailed to the consumer by
the debt collector.”); id. § 1692k(a) (“[A]ny debt collector who fails to comply with any
provision of this subchapter with respect to any person is liable to such person . . . .”).
While Midland’s alleged failure to comply with the FDCPA may subject it to liability
under the act, such failure is not a defense to liability for the underlying debt. See Balsly
v. West Mich. Debt Collections, Inc., No. 3:11cv642–DJN, 2012 WL 628490, at *12 (E.D. Va.
Feb. 27, 2012) (mem.) (“Pursuant to the FDCPA, [the alleged debtor] has a right to
pursue his claim regardless of whether he is found liable on the debt . . .—the two rights
are not coterminous.”); United States v. Iwanski, 805 F. Supp. 2d 1355, 1359 (S.D. Fla.
2011) (“[A] violation of th[e FDCPA] does not relieve Defendant of his obligation to pay
the underlying debt.”); Vitullo v. Mancini, 684 F. Supp. 2d 760, 765 (E.D. Va. 2010)
(mem.) (“Nothing in the FDCPA suggests, explicitly or implicitly, that debtors might
seek declaratory judgments cancelling or extinguishing accrued debts, in lieu of
damages, for FDCPA violations . . . .”); see also Schroyer v. Frankel, 197 F.3d 1170, 1178
(6th Cir. 1999); Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); McCartney v. First City
Bank, 970 F.2d 45, 47 (5th Cir. 1992) (“‘The [FDCPA] is designed to protect consumers
who have been victimized by unscrupulous debt collectors, regardless of whether a
valid debt actually exists.’” (quoting Baker v. G.C. Servs. Corp., 677 F.2d 775, 777 (9th Cir.
1982))); Torres v. ProCollect, Inc., No. 11–cv–02989–LTB, 2012 WL 1969280, at *3 (D. Colo.
(continued...)

20110788‐CA 2
¶2 “We review the district court’s decision to grant summary judgment for
correctness, granting no deference to the [district] court.” Swan Creek Vill. Homeowners
Ass’n v. Warne, 2006 UT 22, ¶ 16, 134 P.3d 1122 (alteration in original) (internal
quotation marks omitted). Where, as here,

a motion for summary judgment is made and supported as
provided in [rule 56 of the Utah Rules of Civil Procedure], an
adverse party may not rest upon the mere allegations or
denials of the pleadings, but the response, by affidavits or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.

Utah R. Civ. P. 56(e). Additionally, “[e]ach fact set forth in the moving party’s
memorandum is deemed admitted for the purpose of summary judgment unless
controverted by the responding party.” Id. R. 7(c)(3)(A). “Thus, the party opposing the
motion bears the burden of establishing a factual dispute to overcome summary
judgment.” Monavie, LLC v. Iverson, 2012 UT App 141, ¶ 2, 708 Utah Adv. Rep. 10 (per
curiam). Further, although a pro se litigant “should be accorded every consideration
that may reasonably be indulged,” we will ultimately hold him “to the same standard
of knowledge and practice as any qualified member of the bar.” Golden Meadows Props.,
LC v. Strand, 2010 UT App 257, ¶ 3, 241 P.3d 375 (mem.) (internal quotation marks
omitted), cert. denied, 247 P.3d 774 (Utah 2011).

¶3 Here, we accord Pipkin several indulgences, overlooking inadequate briefing
and marshaling concerns to reach the merits of his appeal. Cf. id. ¶ 3 n.2 (according the
pro se litigant several indulgences, including overlooking the fact that the “briefs,
though thoroughly researched, lack[ed] focus and coherence and [were] littered with

1
(...continued)
June 1, 2012) (mem.); Kolker v. Duke City Collection Agency, 750 F. Supp. 468, 471 (D. N.M.
1990) (mem.). Furthermore, because Pipkin only barely referenced the FDCPA in his
previous filings—i.e, his Answer does not contain any reference to the FDCPA, though
he presents this argument as a defense to Midland’s claims—his argument that he never
received the requested documentation is not appropriately before this court.
Accordingly, we do not address Pipkin’s FDCPA arguments.

20110788‐CA 3
unsupported factual allegations”). Nonetheless, Pipkin’s memorandum opposing
summary judgment (the opposition memo) still failed to raise a genuine question of
material fact.

¶4 As the party opposing summary judgment, Pipkin was required to “set forth
specific facts showing that there is a genuine issue for trial.” See Archuleta v. Galetka,
2011 UT 73, ¶ 43, 267 P.3d 232. Pipkin has not done so here. In its entirety, the
opposition memo stated that the affidavit Midland submitted in support of summary
judgment was “irrelevant” because it did “not provide documented evidence of [the]
alleged debt,” and then repeated the same few assertions—that Pipkin had not been
provided with the information he had previously requested from Midland regarding
the debt, that the “alleged debt [was] null and void,” and that because Pipkin had “no
access to information regarding [the] alleged debt [he could not] determine [the]
validity of [the] alleged debt”—before concluding that Midland’s claims were
“specious, frivolous, [and] without foundation or merit.” Pipkin’s repeated assertions
that he has not been provided with the documentation he requested do not raise a
genuine issue of material fact as to Midland’s claim that Pipkin owes $6,148.03, plus
accrued interest, on a credit account serviced by Midland. We are also not persuaded
that Pipkin was unable to effectively oppose Midland’s summary judgment motion
until he received the information he requested from Midland; the information Midland
provided in its initial debt collection letter was detailed enough for Pipkin to effectively
oppose summary judgment. Pipkin could have submitted affidavits that would have
created a genuine issue of material fact or moved for a continuance under rule 56(f) of
the Utah Rules of Civil Procedure; because Pipkin failed to do so, the trial court’s ruling
is affirmed.2 See Utah R. Civ. P. 56(f) (permitting the trial court to continue a motion for

2
Pipkin also argues that the trial court erred by not considering his FDCPA claim,
see supra note 1, when granting summary judgment to Midland. We disagree. Even
assuming Pipkin has a claim under the FDCPA, see Antoine v. J.P. Morgan Chase Bank,
757 F. Supp. 2d 19, 22‐23 (D. D.C. 2010) (“Under the FDCPA a debt collector must send a
written notice to an alleged debtor containing, among other things, the amount of the
debt and statements that the consumer may dispute the debt in writing and may
request written verification. Section 1692g does not require that this information be
received by the debtor, however. Instead, it explicitly states that a notice must be sent
. . . .” (citation omitted)), his argument still fails to dispute Midland’s assertion that
(continued...)

20110788‐CA 4
summary judgment and allow for further discovery). See generally id. R. 56(e)
(explaining the means by which a party can oppose summary judgment).

____________________________________
James Z. Davis, Judge

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¶5 WE CONCUR:

____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge

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Michele M. Christiansen, Judge

2
(...continued)
Pipkin defaulted on his credit obligations to the tune of $6,148.03, plus interest.

20110788‐CA 5