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Surber v. McCarthy, Burgess & Wolff, Inc.

United States District Court, S.D. Alabama, Southern Division

May 11, 2015

SARA SURBER, individually and on behalf of all similarly situated individuals, Plaintiff,


CALLIE V. S. GRANADE, District Judge.

McCarthy, Burgess & Wolff, Inc. ("Defendant") and Sara Surber ("Plaintiff") ask this Court to determine certain legal issues pursuant to the Fair Debt Collection Practices Act ("FDCPA") based on the underlying stipulated facts. (Doc. 34-1; Doc. 39-1). Defendant moved for summary judgment, and specifically asks the Court to decide whether Plaintiff incurred a "debt" as defined by the FDCPA. (Doc. 33, p. 3). Plaintiff responded to the motion for summary judgment, and asserts the "only thing at issue is whether the charge back' constitutes a transaction as that term is used in the FDCPA." (Doc. 38, p. 2). Defendant replied (Doc. 40), and filed a motion to strike Plaintiff's affidavit from her response. (Doc. 41). Plaintiff filed a response in opposition to Defendant's motion to strike. (Doc. 44). After careful consideration and for the reasons set forth below, Defendant's motion for summary judgment is due to be GRANTED, and Defendant's motion to strike is due to be DENIED.


The pertinent facts are not in dispute. In January 2012, Plaintiff entered into an "Agent Contract" with Banker's Life & Casualty Company ("Banker's Life") to sell insurance. (Doc. 39-1, p. 1). Banker's Life compensated Plaintiff by paying commission "as set forth in the attached Commission Schedules" to the contract. (Doc. 39-1, p. 5). The Commission Schedule and Commission Schedule Notes describe how commissions are "allowed on premiums paid for policies and riders approved and issued by [Banker's Life] and accepted by the applicant." (Doc. 39-1, p. 15). Plaintiff attests that if a policy lapsed before the policyholder paid the entire premium, Banker's Life "charged back" a pro-rata portion of the commission from Plaintiff. (Doc. 39-2, p. 1).

Banker's Life and Plaintiff terminated their contract on October 4, 2012. (Doc. 39-1, p. 1). Upon termination of the Agent Contract, Banker's Life alleged Plaintiff owed it an outstanding balance as a result of overpaid commissions, or "charge backs, " that she did not earn after customers failed to pay their insurance premiums. (Doc. 39-1, pp. 1-2). Banker's Life retained Defendant, a debt collection agency, to collect repayment of the alleged overpayment of unearned commissions from Plaintiff. (Doc. 39-1, p. 2). Defendant and Plaintiff agree that the "outstanding balance in dispute" "is not the result of an outstanding bill or debt owed for goods or services provided by [Banker's Life] to [Plaintiff]." (Doc. 39-1, p. 2). Plaintiff states she used her commission from Banker's Life for personal expenses, such as her "rent, cell phone bill, auto insurance, vehicle maintenance and repairs, gasoline, food, groceries, and other personal bills and expenses." (Doc. 39-2, p. 2). Defendant claims to have no knowledge upon which to admit this as a fact. (Doc. 39-1, p. 3). The parties ultimately disagree as to whether the FDCPA applies to the "charge backs" at issue.


The court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The substantive law applicable to the case determines what is material. Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004), cert. den., 534 U.S. 1081 (2005). If the nonmoving party fails to make "a sufficient showing on an essential element of her case with respect to which she has the burden of proof, " the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In evaluating the movant's arguments, the court must view all evidence and resolve all doubts in the light most favorable to the nonmovant. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). "If reasonable minds might differ on the inferences arising from undisputed facts, then [the court] should deny summary judgment." Hinesville Bank v. Pony Express Courier Corp., 868 F.2d 1532, 1535 (11th Cir. 1989) (citation omitted). The basic issue before the court then is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The mere existence of any factual dispute will not automatically necessitate denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton, 358 F.3d at 809.[1]


a. Motion to Strike

Defendant moves the Court to strike Plaintiff's affidavit (Doc. 41), which she submitted in response to Defendant's motion for summary judgment. (Doc. 39-2). Plaintiff's affidavit is brief, and it explains how Banker's Life compensated her and how she used her commission payments. (Doc. 39-2, pp. 1-2). Defendant argues the affidavit is outside the scope of the parties' stipulated facts. (Doc. 41, p. 2). Defendant also states, however, that "paragraph 16 of the Stipulation specifically references Surber's contentions with regard to the commission payments made to her by [Banker's Life] and it was acknowledged the Defendant... had no knowledge upon which to admit such facts to be true so they would not be deemed admitted." (Doc. 41, p. 2). Defendant further argues the parties discussed this issue in a conference call with the Magistrate Judge, and they agreed such facts would not be included within the Stipulation of Facts. (Doc. 41, p. 2).

In response, Plaintiff asserts the motion to strike is procedurally improper, and cites Federal Rules of Civil Procedure 7(a), 12(f), and 56(c)(4) to support her argument. (Doc. 44, p. 2). Plaintiff also notes Defendant did not cite a single rule or case law in its motion to strike. (Doc. 44, p. 2). Plaintiff further argues the parties were unable to stipulate to certain facts, and the Magistrate Judge instructed Plaintiff to file an affidavit at the summary judgment stage regarding the unstipulated facts. (Doc. 44, p. 3).

The Court finds that the affidavit is relevant and based on the personal knowledge of Plaintiff. The Court also finds the affidavit is not barred simply because the parties could not agree to the particular facts Plaintiff alleges in her affidavit. Moreover, the parties already state in their stipulated facts that Plaintiff used her commission primarily for personal, family, or household purposes, and Defendant cannot admit these facts as true because it does not know how Plaintiff spent her money. (Doc. 39-1, p. 3). Plaintiff merely provides more specificity about her expenses in her affidavit. (Doc. 39-2, p. 2). The Court acknowledges Defendant ...

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