United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING MOTIONS FOR
N. Parrish, United States District Court Judge.
the court are three motions for summary judgment: (1) a
motion brought by defendant Dale Hitesman, [Docket 34], (2) a
motion brought by defendants Poulsen and Skousen P.C., Robert
Poulsen, and Robert Reitz, [Docket 40], and (3) a motion
brought by plaintiff David Sexton, [Docket 46]. The court
DENIES the defendants' motions for summary judgment. The
court also DENIES Sexton's motion for summary judgment.
the defendants and the plaintiff have brought motions for
summary judgment. In this section, the court recites the
facts of the case relevant to the defendants' motions by
resolving all disputes in favor of the plaintiff.
owned a mobile home. He lived in it with his disabled son,
who is legally blind and suffers from cerebral palsy. In 2008
Sexton leased a site for his home from Evergreen Village.
During the period of time relevant to this lawsuit, he paid
$461 per month in rent for the lot.
March 17, 2017, Evergreen Village served two inconsistent
notices on Sexton. The first was a seven-day notice to cure a
rule violation. It alleged that Sexton owned two unapproved,
restricted-breed dogs that had attacked another resident.
This document notified Sexton that he had seven days to cure
the rule violation by removing the dogs. Otherwise, Evergreen
Village would commence eviction proceedings. The seven-day
notice stated that Sexton was required to continue paying
second document was a notice of lease termination. This
document alleged that Sexton had violated a provision of the
lease prohibiting “behavior by a resident . . . that
substantially endangers the security, safety, well-being, or
health of other persons in the park” by owning a
dogthat had attacked another resident of the
park. This second document stated that Sexton's lease
agreement would be terminated upon service of the notice and
that Sexton was required to “immediately” remove
his mobile home and all residents thereof from the park.
notices were signed by Evergreen Village's attorney,
Poulsen. Contrary to the allegations contained in these
notices, Sexton was not the owner or caretaker of the dog
referenced in these two notices.
9, 2017, Poulsen, on behalf of Evergreen Village, filed a
complaint against Sexton for unlawful detainer. Sexton
received service of the complaint on May 11, 2017. The
complaint alleged that Sexton began to unlawfully detain the
premises on March 23, 2017, because he had failed to cure the
violations referenced in the seven-day notice and had not
vacated the premises. The complaint requested immediate eviction
and an award of treble damages under Utah Code §
78B-6-811 in the amount of $46.10 per day-or about triple the
daily rent for the mobile home site. Given that Utah Code §
78B-6-811(2)-(3) permits an award for triple the rent due
under a lease “if the alleged unlawful detainer is
after default in the payment” of rent, the complaint
implicitly alleged that Sexton was behind on his rent
payments and that Evergreen Village had been damaged by the
allegations of the complaint were not true. Sexton did not
own or control the dog at issue, and he had not failed to
cure the violations asserted in the seven-day notice.
Moreover, he had continued to pay the amounts due under the
lease and did not owe triple damages for unpaid rent starting
on March 23, 2017. After receiving the summons and complaint,
Sexton spoke to an Evergreen Village manager who told him
that as long as he did not allow the dog at issue to return
to the property, Evergreen would stop the eviction
proceedings. Relying upon this representation, Sexton did not
respond to the complaint.
31, 2017, a Utah state court entered a default judgment
against Sexton. The judgment awarded “Treble damages
from March 23, 2017 to May 25, 2017” in the amount of
$2, 719.90,  attorney fees in the amount of $650, and
court costs in the amount of $395. The total default judgment
was for $3, 764.90 with treble damages accruing at the rate
of $46.10 per day until Sexton removed his mobile home and
his family from Evergreen Village. On the same day, the court
entered an order of restitution. The order commanded Sexton
to vacate the lot he rented from Evergreen Village, remove
his personal property, and restore possession of the premises
to Evergreen Village within 15 days. The order further
authorized a constable or sheriff “at Plaintiff's
direction [to] enter the premises by force using the least
destructive means possible to remove the Defendant(s), any
personal property, and any persons claiming a right to
occupancy from Defendant(s).” Under Utah law, a mobile
home is personal property unless it is permanently affixed to
real property and other conditions have been met. Uta h Code
§ 70D-2-401. Because Sexton's mobile home was not
permanently affixed, it was Sexton's personal property.
16, 2017, Constables Reitz and Hitesman went to Sexton's
mobile home and ordered him and his son to immediately leave.
They represented that Sexton and his son were no longer
allowed to enter the mobile home and that Sexton no longer
owned it because it belonged to Evergreen Village as a result
of the court's order. Reitz and Hitesman threatened to
have Sexton and his son arrested if they returned to the
property for any reason. Intimidated by these
representations, Sexton and his son left the home as ordered.
Reitz and Hitesman then forcibly entered the mobile home and
changed the locks so that Sexton could not retrieve his
property. Sexton was willing and able to comply with the
court's order by removing the trailer but the
Constables' threats to have him arrested prevented him
from doing so.
19, 2017, Poulsen filed an application for writ of execution
to seize Sexton's mobile home in order to collect the $3,
764.90 due under the default judgment. The application
represented that the mobile home had an estimated value of
$1, 000. Poulsen also filed a document styled as a
“praecipe” with the court. This document, signed
by Poulsen, instructed any constable or sheriff to change the
locks on the mobile home and to take possession of personal
property found in the home to be sold at a constable sale,
even though the constables had already done so. On June 22,
2017, the court clerk entered a writ of execution directing
any constable or sheriff to collect the default judgment
“and to sell enough of Defendant's non-exempt
personal property and real property” to satisfy the
and constables Reitz and Hitesman advertised a
constable's sale for the mobile home to occur on July 11,
2017. On July 5, 2017, Sexton objected to the writ of
execution, arguing that the mobile home and most of his
personal property was exempt from execution under Utah law.
The court then ordered Poulsen and the constables to cease
efforts to sell the home.
early August 2017, Sexton found a buyer willing to purchase
the mobile home for $18, 000 and remove it from Evergreen
Village. When Sexton attempted to remove the mobile home,
constables Reitz and Hitesman were summoned to Evergreen
Village. They arrived and prevented the sale. The constables
asserted that they had the right to prevent Sexton from
removing or selling the home and threatened to arrest Sexton
if he tried to remove the home.
August 17, 2017, Sexton's father went to Poulsen's
office to pay off the default judgment. He tendered a check
for $3, 764.90 to individuals in Poulsen's office. He was
also prepared to deliver a separate check for interest or any
other amounts to fully satisfy the judgment. Poulsen's
office staff declined to accept the check. Throughout this
process, Poulsen did not return phone calls or provide an
amount needed to pay off the judgment.
early September 2017, Sexton sued Evergreen Village, Poulsen,
Poulsen's law firm, constable Reitz, and constable
Hitesman for violations of the federal Fair Debt Collection
Practices Act (F D C PA) and the Utah Consumer Sales
Practices Act (U C S PA). Sexton voluntarily dismissed the
claims against Evergreen Village. Hitesman filed a motion for
summary judgment for the claims against him. Poulsen, Poulsen
and Skousen P.C., and Reitz filed a separate motion for
summary judgment. Finally, Sexton filed a motion for summary
judgment arguing that he should prevail on his claims as a
matter of law.
THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
defendants assert that they are entitled to summary judgment
on the two claims asserted against them. The court first
addresses the defendants' arguments regarding the FDCPA
claim. It then turns to the UCSPA claim.
The FDCPA Claim
passed the F D C PA “ to eliminate abusive debt
collection practices by debt collectors.” 15 U.S.C.
§ 1692(e). “Because the FDCPA . . . is a remedial
statute, it should be construed liberally in favor of the
consumer.” Johnson v. Riddle, 305 F.3d 1107,
1117 (10th Cir. 2002).
asserts that the defendants violated three provisions of the
FDCPA. First, he argues that they engaged in “conduct
the natural consequence of which is to harass, oppress, or
abuse [him] in connection with the collection of a
debt.” § 1692d. Second, Sexton contends that the
defendants used “false, deceptive, or misleading
representation[s] or means in connection with the collection
of [a] debt.” § 1692e. Third, he alleges that the
defendants used “unfair or unconscionable means to
collect or attempt to collect [a] debt.” § 1692f.
defendants argue that they cannot be held liable under the
FDCPA for a variety of reasons. The court ...