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Sexton v. Poulsen and Skousen P.C.

United States District Court, D. Utah

March 19, 2019



          Jill N. Parrish, United States District Court Judge.

         Before 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.


         Both 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.

         Sexton 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.

         On 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 rent.

         The 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 dog[1]that 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.

         Both 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.

         On May 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.[2] 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.[3] 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 missed payments.

         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.

         On May 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, [4] 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.

         On June 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.

         On June 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 judgment.

         Poulsen 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.

         In 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.

         On 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.

         In 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 assert that they are entitled to summary judgment on the two claims asserted against them.[5] The court first addresses the defendants' arguments regarding the FDCPA claim. It then turns to the UCSPA claim.

         A. The FDCPA Claim

         Congress 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).

         Sexton 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.

         The defendants argue that they cannot be held liable under the FDCPA for a variety of reasons. The court ...

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