Tara Peretto v. Michael W. Erickson, Utah County Constable’s Office, Rob Kolkman, Office of the Utah County Constable, LLC, Utah Process Inc., Constable Kolkman LLC, The Cherrington Firm, and John Does 1-5

Summary

The United States District Court for the District of Utah addresses cross-motions for summary judgment in Tara Peretto’s action alleging violations of the Fair Debt Collection Practices Act and fraud arising from efforts to collect a judgment through constables. The court concludes that the constable defendants were debt collectors under the FDCPA because their payment-plan communications and threats to seize property exceeded the authority granted by the writ of execution. The court also holds that the bona fide error defense does not apply to their legal interpretation of the FDCPA and finds that Plaintiff presented sufficient evidence of reasonable reliance for her fraud claim to proceed.

Holdings

1. The Kolkman Defendants were debt collectors subject to the FDCPA. Constable Kolkman was an officer of the State of Utah, but his collection activities were not performed in the course of official duties because the writ authorized seizure and sale of personal property, not voluntary payment plans, collection letters, or collection calls. Constable Kolkman LLC was not an officer of the state.
2. The bona fide error defense did not shield the Kolkman Defendants from liability for their incorrect interpretation of the FDCPA.
3. The Kolkman Defendants were not entitled to summary judgment on Peretto’s fraud claim because the timing of Peretto’s payments created a genuine dispute of material fact concerning reasonable reliance and detrimental injury.
4. Cherrington was not entitled to summary judgment on control, actual authority, Utah-law apparent authority, or ratification because material factual disputes remained. Cherrington was entitled to summary judgment on federal-law apparent authority because no evidence showed that Cherrington made representations to Peretto that the Constable Defendants acted on Cherrington’s behalf.
5. Cherrington was entitled to summary judgment on the joint venture theory because Peretto failed to address the theory in opposition and presented no supporting evidence.
6. Peretto was not entitled to summary judgment establishing violations of 15 U.S.C. § 1692e or its enumerated subsections because she applied incorrect legal standards concerning materiality and the reasonable-consumer test.

Questions Presented

1. Whether the Kolkman Defendants qualified as debt collectors under the FDCPA despite being a sworn constable and a constable-owned business entity.
2. Whether the official-duty exception to the FDCPA applied when the Constable Defendants sought voluntary payments and used collection communications rather than seizing and selling property under a writ of execution.
3. Whether the bona fide error defense applied to the Kolkman Defendants’ allegedly incorrect interpretation of the FDCPA.
4. Whether summary judgment was appropriate on Peretto’s fraud claim against the Kolkman Defendants.
5. Whether the Constable Defendants were Cherrington’s agents under federal or Utah law.
6. Whether Cherrington was entitled to summary judgment on actual authority, apparent authority, ratification, joint venture, or fraud theories.
7. Whether Peretto was entitled to summary judgment establishing FDCPA violations by the Kolkman Defendants.
8. Whether Peretto was entitled to summary judgment establishing Cherrington’s liability for the Constable Defendants’ conduct.

Disposition

other