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Austin v. Frederick J. Hanna & Assocs., P.C.

United States District Court, N.D. Georgia, Atlanta Division

December 23, 2014

EDUARDO G. AUSTIN, individually and as a Class Representative for all other similarly situated, Plaintiff,
v.
FREDERICK J. HANNA & ASSOCIATES, P.C., Defendant

For Eduardo G. Austin, individually and as Class Representative for all others similarly situated, Plaintiff: James W. Hurt, Jr., LEAD ATTORNEY, Hurt, Stolz, LLC - Ath. Ga, Athens, GA; Steven Howard Koval, LEAD ATTORNEY, The Koval Firm, LLC, Atlanta, GA.

For Frederick J. Hanna & Associates, P.C., Defendant: Philip Wade Savrin, LEAD ATTORNEY, Freeman Mathis & Gary, LLP, Atlanta, GA; William H. Buechner, Jr., Freeman Mathis & Gary, Atlanta, GA.

ORDER

HONORABLE STEVE C. JONES, UNITED STATES DISTRICT JUDGE.

This matter appears before the Court for consideration of the magistrate judge's July 10, 2014 Non-Final Report and Recommendation (" R& R") (Doc. No. [18]), in which the Honorable Janet F. King, United States Magistrate Judge, recommended that Defendant Frederick J. Hanna & Associates, P.C.'s Rule 12(b)(6) motion to dismiss (Doc. No. [9]) be granted in part as to Plaintiff's claim pursuant to 15 U.S.C. § 1692f and be denied in part as to all other claims asserted in the Complaint.

The facts and procedural history are stated in the R& R and incorporated by reference. In summary, Plaintiff has filed a complaint alleging violations of the Fair Debt Collection Practices Act (" FDCPA"), specifically, 15 U.S.C. § § 1692d, 1692e, 1692e(2), 1692e(10), 1692f, and 1692f(1). Doc. Nos. [1]; [6]. Plaintiff contends that (1) Defendant's conduct harassed, oppressed and abused consumers violating § 1692d [Id. ¶ 76]; Defendant misrepresented the legal status of the alleged debts by filing garnishment actions for interest on the amounts previously paid into the registry of the courts and by misrepresenting the amounts of the alleged debts violating § § 1692e and 1692e(2) [Id. ¶ ¶ 77-79]; (3) the same actions violated § 1692e(10) [Id. ¶ ¶ 80-81]; (4) Defendant's filing of garnishment actions for interest on the amount paid into court registries, misstating the amount of the debts and attempting to collect debts not owed violated § 1692f [Id. ¶ ¶ 82-83]; and (5) Defendant's attempt to collect interest that was not expressly authorized by agreement or permitted by law violated § 1692f(1) [Id. ¶ ¶ 84-85].

On July 24, 2014, Defendant filed timely objections to the R& R. Said objections are as follows:

1. The R& R's conclusion that post-judgment interest stopped accruing three years before the Court disbursed the garnished funds to Hanna is contrary to controlling Georgia law.
2. The R& R improperly refused to dismiss Plaintiff's FDCPA claims on the ground of First Amendment Immunity to litigate disputed question of law.

3. The R& R improperly failed to dismiss Plaintiff's claims under 15 U.S.C. § 1692d.

When such objections are filed, the Court must " make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). After conducting this review, the Court " may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Additionally, the Court may " receive further evidence or recommit the matter to the magistrate judge with instructions." Id.

The Court will address Defendant's objections in turn.

I. Objection # 1

As noted in the R& R, Defendant contends that Plaintiff's amended complaint (seeking relief pursuant to the FDCPA) should be dismissed because, as a matter of law, Plaintiff cannot state a cause of action based on filing of a second garnishment action that sought post-judgment interest on an unpaid debt. Defendant argues that the post-judgment interest was authorized by Georgia law, O.C.G.A. § 7-4-12. Doc. No. [18], p. 8.

As stated in the R& R, pursuant to O.C.G.A. § 7-4-12, " '[a]ll judgments in [Georgia] shall bear annual interest upon the principal amount recovered' and . . . '[t]his post-judgment interest is due from the date the judgment is entered until the date the judgment is paid.'" Doc. No. [18], p. 10.

The issue here is, when was the judgment paid, i.e., on October 11, 2010 when Plaintiff's employer paid into the Fulton County court's registry the last of his garnished wages, totaling the amount owed of $3, 312.02 or on October 3, 2013, ...


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