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Litigant misses trial court’s SHOUTING

July 28, 2015

An Indiana man disputing with an Indiana law firm over the collection of his credit card debt was reminded by the 7th Circuit Court of Appeals that capital letters included in a court order should not be ignored.

Grant Bentrud, who owed Capital One Bank $10,955.20 in credit card debt, tried to stall a decision from the Hendricks Superior Court by asking for arbitration. The Indiana law firm of Bowman Heintz Boscia & Vician P.C., which was representing Capital One, had filed for summary judgment on Oct. 1, 2012, after nearly 10 months in court, but Bentrud responded by invoking the arbitration provision in his credit card agreement with Capital One.

However, a hiccup came when the American Arbitration Association did not agree to do the arbitration because Capital One had previously failed to comply with its policy regarding consumer claims. What, exactly, happened next is unclear but, in the end, Bentrud failed to meet the 30-day deadline to initiate arbitration.

About five weeks after the deadline had passed, Bowman Heintz filed a second motion for summary judgment. Hendricks Superior Court granted summary judgment in favor of Capital One and Bentrud moved his case to federal court, arguing the law firm committed multiple violations of the Fair Debt Collections Practices Act during its collection efforts.

When the U.S. District Court for the Southern District of Indiana granted summary judgment in favor of Bowman Heintz, Bentrud appealed.

Bentrud argued the second motion for summary judgment, which was made after he had elected to pursue arbitration of the debt claim, was an unfair or unconscionable means of attempting to collect a debt. And, as such, it was a violation of the FDCPA. He argued once the arbitration provision was invoked, Bowman Heintz was forever barred from resuming the litigation in court.

The 7th Circuit characterized Bentrud’s argument as attempting to “transform the FDCPA into an enforcement mechanism for the arbitration provision in his credit card agreement.”

However, the 7th Circuit pointed out the state court’s stay which set the 30-day deadline also included language that once the deadline passed, the stay was “AUTOMATICALLY DISSOLVED.”

In a footnote, the 7th Circuit explained that a judicial order with key phrases in capital letters is the literary equivalent to shouting and litigants disobey the order at their peril.

Then the 7th Circuit scolded Bentrud, noting if Bowman Heintz had not resumed the litigation it would not have been providing effective representation to its client, Capital One.

“Bentrud, then, would have Bowman Heintz choose between dismissal for failure to prosecute and a possible malpractice claim from Capital One, on the one hand, and a potential, albeit uncertain, FDCPA violation, on the other. That is an easy choice for Bowman Heintz,” Judge Michael Kanne wrote for the court. “In filing its second motion for summary judgment, Bowman Heintz made the only choice that a reasonable advocate in its position would have made. And that choice does not equate to an unfair or unconscionable means of attempting to collect a debt.”

The case is Grant E. Bentrud v. Bowman Heintz Boscia & Vician, P.C., 14-2384.




 

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