UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TRUDY B. AMOND,
Plaintiff-Appellant,
v.
No. 97-2582
BRINCEFIELD, HARTNETT &
ASSOCIATES, P.C.; MICHAEL T.
TOMPKINS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-97-1274-A)
Argued: December 3, 1998
Decided: March 22, 1999
Before MURNAGHAN and MICHAEL, Circuit Judges, and
HERLONG, United States District Judge for the District of South
Carolina, sitting by desigation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Peter Louis Sissman, Arlington, Virginia, for Appellant.
Danny Mark Howell, SCHRAUB & COMPANY, CHARTERED,
P.L.C., Alexandria, Virginia, for Appellees. ON BRIEF: J. Jonathan
Schraub, Paige A. Levy, SCHRAUB & COMPANY, CHARTERED,
P.L.C., Alexandria, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
After state court litigation with a bank over a car loan, Trudy
Amond sued the bank's lawyers, Michael T. Tompkins and his firm,
Brincefield, Hartnett & Associates, P.C. (Brincefield, Hartnett), in
federal court, alleging violations of the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692 et seq., and state tort law. The dis-
trict court granted summary judgment for the lawyers. We affirm.
I.
In August 1993 Amond bought a Mazda 626 from a new car dealer
and signed a retail installment sales contract to finance her purchase
over five years. The dealer then assigned Amond's note to American
Investment Bank, N.A. (the Bank). Amond made monthly payments
to the Bank until January 1995. After Amond stopped making pay-
ments, the Bank repossessed the car. In May 1995 the Bank sold the
car on terms that Amond contends were commercially unreasonable
and that unfairly reduced the sale price of the car. Because the car's
sale price did not cover the outstanding balance on the loan, the Bank
asserted a deficiency claim against Amond.
In December 1995 the Bank sued Amond on this deficiency in the
Fairfax County General District Court in Virginia. Amond filed a
counterclaim against the Bank, alleging violations of the FDCPA.
Tompkins and the Brincefield, Hartnett firm represented the Bank in
this state court action. After a bench trial in December 1996 the state
court awarded judgment to Amond on the Bank's claim for the defi-
ciency because the Bank was unable to rebut Amond's assertion that
the Bank had sold her car as a less expensive model. The state court
found for the Bank on Amond's FDCPA counterclaim, dismissing it
with prejudice. The Bank filed a timely appeal of the judgment deny-
ing its deficiency claim. Under Virginia law this appeal served to
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annul completely the trial court judgment against the Bank. See
Addison v. Salyer, 40 S.E.2d 260, 263 (Va. 1946). Amond attempted
to appeal the dismissal of her FDCPA claim against the Bank, but her
appeal was untimely. Later, the Bank took a voluntary nonsuit on its
claim against Amond.
In early 1997 Amond wanted to buy a condominium in Virginia
Beach, Virginia, and sought a mortgage loan to finance the purchase.
She found a willing lender, but the lender conditioned approval of the
loan on Amond's resolving a matter on her credit report, that is, the
Bank's asserted claim of $11,777 on the old car loan. Amond dis-
puted the Bank's claim and contacted the Bank, demanding that it
reinvestigate the matter and delete the debt from her credit record.
Tompkins responded on behalf of his client, the Bank, confirming that
the stated balance on the loan was accurate. Because of this outstand-
ing item on her credit report, Amond was unable to obtain the loan
to buy the condominium.
Amond then sued Tompkins and the Brincefield, Hartnett firm in
federal court. She claimed that the lawyers violated the FDCPA by
attempting to collect a debt that was not owed and by verifying an
$11,777 balance on the loan that was in error. She also asserted state
law claims for defamation and intentional interference with economic,
business, and contract expectancy. The district court granted summary
judgment for the defendants, and Amond now appeals.
II.
We review the district court's grant of summary judgment de novo.
If the papers filed in district court show there is no "genuine issue as
to any material fact," summary judgment is proper. See Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-51
(1986).
Amond's claim against Tompkins and Brincefield, Hartnett essen-
tially rests on two points. She first contends that the lawyers knew the
debt was uncollectible because a state court had already ruled for her
on the Bank's action to collect the deficiency. She then asserts that
even if she is liable for a deficiency on the car loan, the outstanding
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balance verified by the Bank and confirmed to her by the lawyers was
overstated.
Amond's first argument is entirely without merit. As a matter of
Virginia law the Bank's appeal of the state court judgment completely
nullified the judgment. See Thomas Gemmell, Inc. v. Svea Fire & Life
Ins. Co., 184 S.E. 457, 458 (Va. 1936) (holding that the effect of such
an appeal "is not only to suspend but to destroy the effect of [the]
judgment . . . . It makes it as though no judgment had been rendered.
The cause is considered still pending, no regard is had to the judg-
ment . . . and the rights of the parties are the same as they would be
in any other suit pending in the courts of record."). Therefore, no legal
obstacle prevented the Bank from continuing to press its claim for the
deficiency. In the federal action Amond continued to assert that the
loan deficiency was the result of the Bank's selling the car in a com-
mercially unreasonable manner. The district court held that this alle-
gation was irrelevant to Amond's claim against the lawyers. It noted
that this charge concerned events that took place before the lawyers
became involved in the case, that the lawyers had no duty to investi-
gate the facts surrounding the sale of the car, and that the lawyers had
evidence that rebutted Amond's charges. We agree with the district
court that Amond has failed to present a genuine issue of material fact
on this question.
Amond's second argument also fails. She contends that the law-
yers, in representing the Bank, overstated the amount of the defi-
ciency. The district court concluded that the lawyers had no reason to
question the amount of the debt they were attempting to collect for
their client. The court said that the lawyers "cannot be held liable for
what appears to be an honest dispute regarding the amount of the
debt, so long as there exists a colorable factual basis for the higher
amount claimed by their client." It noted that the high interest rate on
the car loan and attorneys' fees could account for the substantial
increase in Amond's outstanding balance.* Given these factors, the
court concluded that the increase in the size of the debt "is not suffi-
ciently surprising to put defendants on notice that their client -- the
lender -- may be falsely representing the amount of the debt owed
_________________________________________________________________
*The deficiency amount rose from approximately $6,800 in December
1995 to $12,000 in April 1997.
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by plaintiff." The record reveals no other evidence suggesting that
Tompkins and Brincefield, Hartnett attempted to collect a debt they
knew to be overstated or legally discharged. We therefore find no
error in the district court's conclusions on this point.
Amond further contends that even if the lawyers did not intention-
ally attempt to collect an overstated debt, they were not entitled to
rely blindly on the Bank's statement of the amount. She argues that
lawyers who act as debt collectors have a heightened duty to investi-
gate the validity and amount of the debts they seek to collect. Such
duty, she contends, derives from both the FDCPA and a lawyer's
duties under Rule 11 of the Federal Rules of Civil Procedure. Under
Rule 11 lawyers filing papers with a court must certify that those
papers are well grounded in fact, legally tenable, and not presented
for an improper purpose. See Fed. R. Civ. P. 11; Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 393 (1990). This certification must be
based on a reasonable inquiry by the lawyers. Id . Amond claims that
the Rule 11 duty of reasonable inquiry should extend to any activity
by a lawyer that constitutes debt collection under the FDCPA, thereby
diminishing the ability of lawyer-debt collectors to rely on the repre-
sentations of their clients.
Lawyers who regularly engage in consumer debt collection activity
are subject to the limitations of the FDCPA, even where their conduct
involves litigation. See Heintz v. Jenkins, 514 U.S. 291, 299 (1995).
However, they are not subject to any special, higher duty under the
FDCPA solely by virtue of their status as lawyers. As the Seventh
Circuit has explained:
The Act reads that debt collectors are not liable for attempt-
ing to collect validly certified amounts owed their client. It
does not say that the collector's status as an attorney should
add a requirement of independent legal analysis for each
aspect of the creditor's claim . . . . To interpret the FDCPA
as not to treat lawyers and debt collectors equally would
contort the statute's meaning, and ignore Congress' drafting
and the Supreme Court's interpretation.
Jenkins v. Heintz, 124 F.3d 824, 833-34 (7th Cir. 1997).
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The Seventh Circuit further explained:
While a letter sent by an attorney after a lawsuit is filed
arguably presupposes that the attorney-collector has put on
a new hat and is now a litigator, not a collector, the Act still
defines him as a collector, and the Supreme Court has con-
fined the litigator to the standards of a collector. Filing a
lawsuit does not insulate a lawyer from the restrictions of
the Act, nor does it expose him to standards under the Act
not applied to non-lawyer collectors.
Id. at 833.
Of course, Rule 11 (and equivalent state law sanction provisions)
applies to lawyers when they act in their capacity as litigators (as
opposed to debt collectors). Conduct by lawyers that violates the
established norms of Rule 11 remains subject to sanction. However,
we will not combine Rule 11 with the FDCPA to create a heightened
duty of investigation for lawyer-debt collectors engaging in ordinary
debt collection activity.
We conclude that the district court properly rejected Amond's sec-
ond argument on the ground that the lawyers had a"colorable factual
basis" for the deficiency claim asserted against Amond.
III.
Amond asserts in her appeal brief that she was denied sufficient
additional time for discovery in district court. We recognize that sum-
mary judgment is only appropriate after the opposing party has had
adequate time for discovery. See Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). However, Amond did not
request any additional discovery on a disputed question of material
fact before the entry of summary judgment.
One day before the district court rendered judgment, Amond's law-
yer filed a declaration seeking additional discovery as to whether
Tompkins knew that Amond was applying for a mortgage loan. That
same day Tompkins responded that he knew about Amond's loan
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applications, thereby conceding the fact that Tompkins had sought
discovery on. The district court therefore had no reason to delay the
entry of summary judgment. Only after the entry of judgment did
Amond file another declaration requesting more discovery. This dec-
laration was, of course, untimely. We have previously noted that "[a]
party may not simply assert in its brief that discovery was necessary
and thereby overturn summary judgment when it failed to comply
with the requirements of Rule 56(f) to set out reasons for the need for
discovery in an affidavit." Hayes v. North State Law Enforcement
Officers Ass'n, 10 F.3d 207, 215 (4th Cir. 1993) (quoting Sweats
Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1567 (Fed. Cir.
1987)). We therefore conclude that Amond's discovery claim is with-
out merit.
The judgment of the district court is
AFFIRMED.
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