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Asset Acceptance LLC v. Pham

Court of Appeals of Oklahoma, Division IV

July 7, 2016

ASSET ACCEPTANCE LLC, Plaintiff/Appellee,
v.
HUNG T. PHAM and HOA V. TO, Defendants/Appellants.

          Mandate Issued: 04/11/2018

          APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA HONORABLE STEVE STICE, TRIAL JUDGE

          Tracy Cotts Reed, Keith A. Daniels, LOVE, BEAL & NIXON, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant

          Daniel J. Gamino, DANIEL J. GAMINO & ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Defendants/Appellants

          JANE P. WISEMAN, PRESIDING JUDGE

         ¶1 Defendants Hung T. Pham and Hoa V. To appeal the trial court's denial of their petition to vacate default judgment. After review, we find the trial court erred when it refused to vacate the default judgment. Accordingly, we reverse the decision of the trial court and remand for further proceedings. [1]

         FACTS AND PROCEDURAL HISTORY

         ¶2 This appeal arises from a collection action. In April 2009, Defendants purchased a home entertainment center from Hoffmans Furniture in Moore, Oklahoma, using a Wells Fargo Financial National Bank/Marquis Furniture, Inc., credit card account. [2] The total cost of the entertainment center, including the delivery fee, was $2, 999.98. Defendants made their "last payment" to Wells Fargo Financial National Bank (Wells Fargo) for the entertainment center in April 2010 when the payoff was $1, 894.98. Defendants, however, paid only $1, 649.98, intentionally deducting $245 from the payoff for the cost of repairing damages allegedly caused by the delivery person and for loss of use. The remaining balance on the account was later assigned to Plaintiff Asset Acceptance LLC. [3]

         ¶3 Asset Acceptance LLC filed a petition for indebtedness against Defendants on January 27, 2012, alleging that Defendants had defaulted on their Wells Fargo Financial National Bank/Marquis Furniture, Inc., credit card account and owed $1, 325.47, plus interest, court costs, and a reasonable attorney fee. It appears Defendants were served with the petition for indebtedness and a summons on March 1, 2012. [4] Each summons contained the following language:

You have been sued by the above-named plaintiff, and you are directed to file a written answer to the attached petition in the office of the court clerk of CLEVELAND County[, ] located at, District Court of Cleveland County 200 South Peters Avenue, Norman, OK 73069-6070, within thirty-five (35) days after service of this summons upon you exclusive of the day of service. Within the same time, a copy of your Answer must be delivered or mailed to the attorney for the Plaintiff. Failure to respond, in writing, within thirty-five (35) days, will result in default judgment being entered against you.
No request will be made to the Court for a Judgment in this case until the expiration of 35 days after your receipt of this Petition and Summons. If you dispute the debt and/or request the name and address of the original creditor in writing within the 35-day period that begins with the receipt of the Petition and Summons, all collection efforts, including our proceeding with this lawsuit, will cease until we respond as required by law.

(Emphasis in original.) Defendants did not enter an appearance or file any answer, motion, pleading or written response in the case. However, on March 30, 2012, they sent Plaintiff via certified mail/return receipt requested a letter disputing the debt and enclosing prior relevant correspondence with Wells Fargo. Plaintiff's counsel's response letter dated April 10, 2012, provided the name of the current creditor, the name and address of the original creditor, Defendants' account number, the date the account was placed with Plaintiff's counsel for collection, and the principal balance claimed to be owed. The April 10 letter in closing stated: "This information is provided in response to your request for debt validation. We will proceed with this matter. If you would like to discuss settlement options, please advise." Defendants responded by letter dated May 1, 2012, emphasizing that the debt was still disputed and expressing concern regarding the figures provided by Plaintiff's counsel. Plaintiff did not respond to this letter, and communication between the parties then apparently ceased.

         ¶4 The trial court granted default judgment by journal entry of judgment filed October 29, 2012. In its separate certificate of mailing, Plaintiff stated it sent a copy of the judgment to Defendants by first class U.S. mail, postage prepaid, on November 8, 2012.

         ¶5 In mid-January 2014, Plaintiff began garnishing Defendant Pham's wages to satisfy the default judgment. Pham filed a claim for exemption and a request for hearing in connection with the garnishment, contending that his wages were exempt from garnishment because the debt had already been paid. At the claim for exemption hearing, the trial court took the matter under advisement and stayed the garnishment. No further action was taken until July 2014, when the trial court filed an order setting a second claim for exemption hearing on August 20, 2014.

         ¶6 Following the hearing, Defendants, on August 28, 2014, filed a petition to vacate the default judgment pursuant to 12 O.S. § 1031 (4), (7), and (9). Defendants also on that day filed an answer and counterclaim, in which they denied Plaintiff's claims, asserted affirmative defenses, and alleged that Plaintiff was liable under the Oklahoma Consumer Protection Act and under the Fair Debt Collection Practices Act. [5]

         ¶7 In response, Plaintiff filed a motion to dismiss the petition to vacate and a motion to strike the answer and counterclaim. Attached to the motion to dismiss as an exhibit was a copy of the certificate of mailing filed in the case on November 9, 2012, showing Plaintiff mailed a copy of the judgment to each Defendant on November 8, 2012. Plaintiff argued that dismissal was proper because: (1) Defendants failed to have summons issued and served in conjunction with the petition to vacate as required by 12 O.S. § 1033; (2) Defendants' proceeding to vacate under 12 O.S. § 1031 (9) was barred by the applicable one-year statute of limitations; (3) Defendants' petition failed "to provide facts to support an allegation of fraud in obtaining judgment" as required by 12 O.S. § 1031 (4); and (4) Defendants had not "shown any 'unavoidable casualty or misfortune, preventing the party from prosecuting or defending' their interests, in conformity with 12 O.S. § 1031 (7)." Plaintiff moved to strike Defendants' answer and counterclaim because such a filing '"after the time permitted by the Oklahoma Pleading Code and without leave of court is a nullity, having no procedural effect.'" Durant Civic Foundation v. The Grand Lodge of Oklahoma of the Independent Order of Odd Fellows, 2008 OK CIV APP 54, ¶ 8, 191 P.3d 612.

         ¶8 Defendants filed an objection to the motion to dismiss maintaining they had complied with the requirements of 12 O.S.2011 § 1033 and attaching original returns of summons as proof. [6] They also contended that the default judgment should be vacated pursuant to 12 O.S.2011 § 1031 (4) and (7) because Plaintiff's counsel did not disclose "to the Court any of the contemporaneous correspondence received from the Defendants" or "advise[ ] Defendants of the setting for default judgment or provide[ ] Defendants with any advance notice thereof."

         ¶9 The trial court subsequently heard oral arguments. By order filed November 12, 2014, the trial court granted Defendants thirty days to brief the issues raised and Plaintiff the option to respond within 15 days thereafter. Defendants complied on December 9, 2014, arguing that the trial court should vacate the default judgment because "opposing counsel obtained the default judgment by failing to inform the Court of [Defendant] Pham's [correspondence with] opposing counsel" in violation of Rule 3.3 of the Rules of Professional Conduct. Plaintiff filed a brief in response to ...


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