UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHNNY O’CONNOR, )
)
Plaintiff, )
)
vs. ) Case No. 4:11CV2187SNLJ
)
CREDIT PROTECTION ASSOC. LP., )
)
Defendant. )
MEMORANDUM
Plaintiff, on behalf of himself and others similarly situated, has sued defendant alleging
claims under the federal Fair Debt Collection Practices Act (FDCPA) relating to the defendant’s
efforts (2 letters) to collect a debt allegedly owed to Charter Communications (a non-party).
Plaintiff’s complaint includes allegations of various violations of 15 U.S.C. §§1692d-f ,
including but not limited to, defendant’s failure to identify itself as a debt collector, threatening
to report the alleged debt to credit reporting agencies, and engaging in harassing, oppressive,
and/or abusive conduct in connection with the collection efforts. This matter is before the Court
on the defendant’s motion for summary judgment [18], filed December 18, 2012; plaintiff’s
motion for partial summary judgment with respect to an alleged claim under 15 U.S.C. §1692g
[22], filed December 27, 2012; plaintiff’s motion for stay of summary judgment for newly
discovered evidence [28], filed January 17, 2013; and, defendant’s motion for leave to cite
additional authority [32], filed April 12, 2013. All responsive pleadings have now been filed and
the matters are ripe for disposition.
The appropriate standard for consideration of all motions for summary judgment is as
follows:
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Young v. Credit Protection Association, Case No. 4:12CV981HEA.1
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Summary judgment is proper if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law. The movant bears the
initial responsibility of informing the district court of the basis for
its motion, and must identify those portions of the record which it
believes demonstrate the absence of a genuine issue of material fact.
If the movant does so, the nonmovant must respond by submitting
evidentiary materials that set out specific facts showing that there is
a genuine issue for trial. On a motion for summary judgment, facts
must be viewed in the light most favorable to the nonmoving party
only if there is a genuine dispute as to those facts. Credibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of
a judge. The nonmovant must do more than simply show that there
is some metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine issue for
trial. Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine
issue for trial.
Torgerson v. City of Rochester, 643 F.3d. 1081, 1085 (8th Cir.2011)( internal citations and
quotations omitted); see also, Jackson v. United Parcel Service, Inc., 643 F.3d. 1031, 1042 (8th
Cir. 2011)(citing Torgerson, supra.).
Before addressing the facts and legal issues before the Court, there are a few matters that
need to be addressed preliminarily. Firstly, plaintiff seeks to stay this Court’s ruling on the
summary judgment proceedings due to the deposition of a corporate designee of Charter
Communications in another case , and the alleged production of a certain deposition agreement1
between the defendant and Charter. Plaintiff seeks the stay in order to obtain certain evidence
which he believes would support his claim that the defendant did not have the authority to report
the alleged debt to the credit reporting agencies.
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Plaintiff’s motion for a stay will be denied. Plaintiff filed this motion over four (4)
months after discovery closed in this case. Plaintiff’s counsel has filed other cases such as the
one before the Court, including the case involving the subject deposition and agreement, and has
offered no justifiable excuse for not seeking the same or similar discovery in this case. It is
undisputed that defendant, in the instant case, responded fully to all discovery tendered to it by
the plaintiff. Plaintiff never sought an extension of the discovery deadline in this case, nor filed a
proper Rule 56(d)(2) motion for this Court to hold a ruling on the defendant’s summary judgment
motion in abeyance until such time plaintiff could take additional discovery. Plaintiff’s motion
for stay [28] lacks merit and will be denied.
Secondly, the plaintiff has filed for partial summary judgment on an alleged §1692g claim
of “overshadowing.” Defendant counters that the plaintiff’s summary judgment motion is
untimely, and furthermore, raises a new claim not alleged in his complaint. Finally, defendant
contends that if the Court should consider this “new claim,” plaintiff has failed to put forth
sufficient evidence to support it. Plaintiff counters that §1692g is not a new claim because he
plead that the defendant’s actions may have violated any of the FDCPA rules §§ 1692 a-j,
including §1692g. He further claims that by pleading the letters and dates he received them, this
is “all the evidence Plaintiff needs to prove an overshadowing violation here.” Plaintiff’s
Response [22], pg. 7. Plaintiff concludes that because the defendant has never moved to dismiss
the alleged §1692g claim, defendant is precluded from making a challenge to it now.
The Court has carefully reviewed the plaintiff’s complaint. In his “facts” section, he cites
to the contents of the first collection letter of September 6, 2011, and claims that this letter fails
to clearly identify the defendant as a debt collector and threatens to turn plaintiff’s debt over to
the credit reporting agencies if plaintiff did not immediately pay the alleged debt. Plaintiff’s
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Complaint [3], ¶¶9-14. Plaintiff then contends that the defendant sent the September 6, 2011
letter knowing or should have known that the debt was not owed because plaintiff has contacted
Charter, resolved the debt, and Charter informed defendant of the resolution. Plaintiff’s
Complaint [3], ¶¶16-18. Plaintiff then avers that a second collection letter of September 14,
2011 was sent to the plaintiff with a lower revised alleged debt amount. Plaintiff again avers that
the debt was not owed, and that the defendant had wrongfully threatened to report the debt to the
credit reporting agencies. Plaintiff’s Complaint [3], ¶¶19-22.
Plaintiff’s Complaint contains a single count I entitled Violations of Fair Debt Collection
Practices Act. In this Count, plaintiff states generally that in its attempts to collect the alleged
debt, “Defendant has committed violations of the FDCPA, 15 U.S.C. 1692a-j, et. seq., including
but not limited to, the following . . . .” Plaintiff’s Complaint [3], ¶24. Plaintiff then specifically
lists the following alleged violations:
a. Defendant failed to identify itself as a debt collector and falsely
characterized itself as a credit bureau or other type of agency. 15 U.S.C.
§1692d, e;
b. Defendant attempted to collect an unauthorized amount. 15 U.S.C.
§1692f(1);
c Defendant threatened to take action, specifically credit reporting, that
it could not legally take and that it did not intend to take. 15 U.S.C.
§1692d, e, f;
d. Defendant engaged in conduct that the natural consequence of which
is to harass, oppress, or abuse Plaintiff in connection with the collection
of a debt. 15 U.S.C. §1692d-f;
e. Defendant communicated a false impression of the character, amount,
and legal status of the debt. 15 U.S.C. §1692e; and
f. Defendant used unfair and unconscionable practices to attempt to
collect the debt. 15 U.S.C. §1692f.
Plaintiff’s Complaint [3], ¶¶24a-f.
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The term “overshadowing” generally refers to collection letters, which technically2
comply with the FDCPA, but use language, typeface, or other means to confuse the debtor or
disguise the debtor’s validation rights. Jones v. The CBE Group, Inc., 215 F.R.D. 558, 566
(D.Minn. 2003).
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Nowhere in this complaint does plaintiff aver any facts whatsoever alleging an
“overshadowing” claim. He specifically alleges violations of §1692d-f; yet fails to specifically2
allege a violation of §1692g. There is nothing in this complaint which sets out a claim for a
violation of §1692g other than a generalized boilerplate statement that defendant violated the
FDCPA 15 U.S.C. §§1692a-j. This boilerplate language, especially in light of the facts averred
and the identification of specified violated sections of §1692 (other than §1692g) fails to put the
defendant, or this Court, on notice that plaintiff is making a §1692g claim of “overshadowing.”
Consequently, the plaintiff failed to raise a claim of §1692g violation in his complaint, and
cannot raise same in his “response” or a “cross-motion for partial summary judgment.” Thus,
plaintiff’s cross-motion for partial summary judgment [22] will be denied.
Finally, the Court must address the substance of the plaintiff’s “statement of
uncontroverted material facts” and his affidavit in support. Plaintiff’s Exhibits [22-1 and 23].
Most of his “statement of uncontroverted facts” and his affidavit relate to his communications
and alleged resolution of his debt with Charter Communications. He further opines that he
resolved the debt with Charter and it is belief that Charter communicated this “fact” to the
defendant. Finally, plaintiff contends that he has a audio recording of his alleged conversation
with a Charter representative about the debt owed and has filed same with the Court. Plaintiff’s
Exhibit [22-4].
The problem here is that plaintiff’s communications with Charter and what he believed
Charter told defendant is irrelevant as to the issues raised in the defendant’s summary judgment
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motion. Charter is not a party to this case and whatever problems plaintiff had in moving from
place to place, and getting new cable service started or reinstated is simply irrelevant to any issue
present in this case, or more importantly, to the issues raised in the defendant’s summary
judgment motion. As for the CD, plaintiff has failed to authenticate it and there is nothing before
this Court which qualifies the CD as an admissible exhibit before this Court. Furthermore, the
CD only relates to a conversation allegedly between the plaintiff and a Charter representative.
Plaintiff’s own affidavit fails to attest that this conversation involved the defendant, or was
transmitted to the defendant (prior to the lawsuit being filed), or that defendant was made aware
of a “complete resolution” of the debt (by plaintiff) prior to the transmission of either or both of
the collection letters. Therefore, the Court will review the plaintiff’s statement of uncontroverted
facts, his affidavit, and the CD and give them only such weight and consider them only so far as
they address any legal issue properly before this Court.
As for the defendant’s motion to cite additional authority, this motion will be granted.
The additional authority is the memorandum opinion entered by a fellow district court involving
the same defendant and considering the same issues. The Court has reviewed this well-reasoned
opinion and finds same instructive as to the issues presently before this Court.
In light of the above findings, the Court determines that the following facts are largely
undisputed and material to the issues before this Court.
The plaintiff, at all times relevant to this cause of action, was a cable customer of Charter
Communications. As a customer of Charter, plaintiff incurred a debt owed to Charter for
services rendered. On September 6, 2011 Charter forwarded the plaintiff’s debt in the total
amount of $381.81 to defendant CPA for collection. The debt owed of $381.81 represented
$331.00 for 1 item of unreturned equipment (a DVR) and $50.81 for a service balance.
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Defendant’s Exhibit 1, pg. CPA002. Defendant is a Texas limited partnership engaged in the
business of the collection of consumer debt in Missouri and other states using the mail and
telephone.
In the course of its collection debt business, defendant maintains collection notes
regarding the activity that takes place on each account. Collection efforts via telephone calls and
conversations, and written correspondence are recorded in the collection notes for each particular
collection account. Defendant’s Exhibit 2 - Declaration of Lisa Pearson Duan. The collection
notes are created and maintained in the regular course of business and such entries are made
contemporaneously with the events they memorialize. Duan Declaration.
When an account is placed with CPA for collection, it is assigned a reference number.
CPA assigned reference number #1651206476 to plaintiff’s account. Where a debtor does not
pay his debt within a proscribed time-period, CPA will continue its efforts to collect the debt,
which may include furnishing information regarding the account to the credit bureaus. Duan
Declaration. Under normal circumstances, if the plaintiff had not paid his debt, and had not
initiated this lawsuit, his account would have been furnished to the credit bureaus. Duan
Declaration. On the other hand, if plaintiff had paid his debt, collection efforts would have
ceased. Duan Declaration.
On September 6, 2011 defendant sent the plaintiff a collection notice. The notice states:
“This is an attempt to collect a debt by a debt collector and any information obtained will be used
for that purpose.” Defendant’s Exhibit 3 - collection letter dated September 6, 2011. The
September 6th letter identifies Charter Communications as the Creditor. It informs the plaintiff
that Charter’s records indicate that plaintiff’s account is past due in the amount of $381.81 which
includes 1 non-returned piece of equipment valued at $331.00. In bold letters is the statement
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“Save $331.00 by returning your leased equipment today!” Defendant’s Exhibit 3. The letter
further identifies defendant as a “professional collection agency retained by Charter
Communications and is authorized to take all appropriate steps to collect this debt.” The letter
further provides various ways that the plaintiff can pay the debt, and a phone number plaintiff can
call to make a payment by phone. Finally, the letter sets our certain rights retained by the
plaintiff under the FDCPA, and what additional information certain identified states require
defendant to provide. Defendant’s Exhibit 3. As for the FDCPA information, the letter states the
following:
The Fair Debt Collection Practices Act requires that we, as the debt
collector, inform you that; unless you, within thirty days after receipt
of this initial notice, dispute the validity of the debt, or any portion thereof,
the debt will be assumed valid by the debt collector. If you notify the
debt collector in writing within the thirty-day period that the debt, or
any portion thereof, is disputed, the debt collector will obtain verification
of the debt or a copy of judgment against you and mail it to you. If
requested in writing within thirty days, the debt collector will also
provide you with the name and address of the original creditor, if
different from the current creditor.
Defendant’s Exhibit 3 (emphasis added).
On September 14, 2011 the plaintiff called Charter to tell it that he had returned the
equipment in question (a DVR). Charter informed plaintiff that the outstanding debt included
both the DVR and the service charge balance. The matter of the DVR was resolved and Charter
informed defendant that the subject equipment had been returned.
On September 14, 2011 defendant updated the plaintiff’s account to reflect the return of
the equipment, and sent plaintiff a second collection letter stating the outstanding debt balance of
$50.81 only. The September 14th letter again identified Charter Communications as the Creditor
and a “Balance Due” of $50.81. The letter thanks plaintiff for the return of the “item” and that
the return leaves a balance of $50.81 due and owing. Defendant’s Exhibit 3. The letter further
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states that partial payments are only accepted if prior arrangements had been made with either
Charter or defendant CPA; and if so, plaintiff was to return the remittance portion of the letter
indicating the amount and date of the next scheduled payment, and return with the current
payment. If no prior arrangement had been made regarding partial payment of the debt, payment
in full was requested to settle the account. Defendant’s Exhibit 3. Plaintiff was informed that no
arrangements would be allowed for more than thirty (30) days between each payment. Finally,
plaintiff was informed that “[I]f your next payment is not received in that time frame, we will
proceed with further collection activity which could jeopardize your credit standing.”
Defendant’s Exhibit 3. The remainder of the letter set out the same payment methods, phone
number(s) and recitation of rights as the September 6, 2011 letter had done.
Plaintiff did not pay the debt as set out in the September 14, 2011 collection notice.
Plaintiff never sent written correspondence to CPA disputing the debts. He never responded to
either the September 6th or September 14th letters, never disputed either debt amounts in writing
to CPA, nor did he ever request verification (in writing) of either debt amounts. Instead, plaintiff
filed the instant lawsuit. Once notified of the instant lawsuit, CPA ceased all collection efforts
regarding the alleged debt of $50.81.
The purpose of the FDCPA is “to protect consumers from abusive debt collection
practices and to protect ethical debt collectors from competitive disadvantage.” Quinn v. Ocwen
Fed. Bank, FSB, 470 F.3d. 1240, 1246 (8th Cir. 2006); Peters v. Gen.,Serv. Bureau, 277 F.3d.
1051 1054 (8th Cir. 2004); White v. BAC Home Loans Servicing LP., 2011 WL 1483919, *7
(E.D. Mo. April 19, 2011) citing Quinn, supra.; Peters, supra.; see also, Rollins v. Portfolio
Recovery Associates, LLC, 2012 WL 6051999, *2 (W.D.Mo. April 25, 2012) citing Strand v.
Diversified Collection Serv., 380 F.3d. 318-19 (8th Cir. 2004). Under the FDCPA, debt
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collectors are prohibited, among other things, from the false representation of the character,
amount, or legal status of any debt; using conduct that constitutes harassment, oppression, or
abuse; using false, deceptive or misleading misrepresentations; engaging in unfair or
unconscionable means to collect the debt; and, taking or threatening to take any action that
cannot legally be taken. 15 U.S.C. §§1692d, e, and f.
In order to establish a violation of the FDCPA, a plaintiff must demonstrate that 1)
plaintiff has been the object of collection activity arising from a consumer debt; 2) the defendant
attempting to collect the debt qualifies as a debt collector under the Act; and 3) the defendant has
engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA. Pace
v. Portfolio Recovery Associates LLC, 872 F.Supp.2d. 861, 864 (W.D.Mo. 2012); Campbell v.
Credit Protection Association LP, 2013 WL 1282348, *4 (E.D.Mo. March 27, 2013)(citing Pace,
supra.).
Within the Eighth Circuit, FDCPA claims are viewed from the “unsophisticated
consumer” perspective. Strand, at 317-18 (8th Cir. 2004); Peters, at 1055; Freyermuth v. Credit
Bureau Services, Inc., 248 F.3d. 767, 771 (8th Cir. 2001); Duffy v. Landberg, 215 F.3d. 871, 873
(8th Cir. 2000); Campbell, 2013 WL 1282348, at *5; Rollins, 2012 WL 6051999, at *3. This
standard is “designed to protect consumers of below average sophistication or intelligence
without having the standard tied to the very last rung on the sophistication ladder.” Strand, at
317 citing Duffy, supra. “The standard protects the uniformed or naive consumer, yet also
contains an objective element of reasonableness to protect debt collectors from liability for
peculiar interpretations of collection letters.” Strand, at 317-18 citing Peters, supra.; Caw v.
Portfolio Recovery Associates, 2013 WL 30567, *2 (W.D.Mo. Jan. 2, 2013). The
“unsophisticated consumer” test is a practical test designed to protect debt collectors from
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liability for “bizarre or idiosyncratic interpretations of collection notices” and “statements that
are merely susceptible of an ingenious misreading do not violate the FDCPA.” Peters, at 1055-
56 (internal quotations and citations omitted). Furthermore, mere speculation that a collection
letter confuses the unsophisticated consumer is insufficient for a FDCPA plaintiff to survive
summary judgment. Campbell, 2013 WL 1282348, at *5 citing Durkin v. Equifax Check Serv. ,
406 F.3d. 410, 415 (7th Cir. 2005). “‘Thus, when the letter itself does not plainly reveal that it
would be confusing to a significant fraction of the population, the plaintiff must come forward
with evidence beyond the letter and beyond his own self-serving assertions that the letter is
confusing in order to create a genuine issue of material fact for trial. Such additional or
‘extrinsic evidence’ may be satisfied through evidence such as consumer surveys or expert
testimony.’” Campbell, 2013 WL 1282348, at 5 quoting Durkin, supra.)(internal citations
omitted).
Finally, where the legal implications of statements made in a collection letter are
disputed, the dispute constitutes a question of law that may be resolved by the Court on a
dispositive motion. See, Peters, at 1056; Campbell, supra. (district court applied
“unsophisticated consumer” test to resolve disputes in connection with FDCPA plaintiff’s claim
that collection letter was misleading and/or deceptive in challenge to defendant’s summary
judgment motion); Schroeder v. First National Collection Bureau, 2011 WL 2960259, *2
(D.Minn. July 21, 2011)(district court cites Peters, supra. in applying “unsophisticated
consumer” test to resolve disputes in connection with FDCPA plaintiff’s claims that collection
letters were misleading and/or deceptive in challenge to defendant’s motion for judgment on the
pleadings).
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The remaining identified illegal conduct involves telephone calls by a debt collector3
which is not an issue in this case.
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15 U.S.C. §1692d
Under the FDCPA, debt collectors are prohibited from “engag[ing] in any conduct the
natural consequence of which is to harass, oppress, or abuse any person in connection with the
collection of a debt.” §1692d. A non-exhaustive list of prohibited conduct includes using or
threatening to use “violence or other criminal means to harm the physical person, reputation, or
property of any person;” using “obscene or profane language or language the natural consequence
of which is to abuse the hearer or reader;” publishing a list of consumers who allegedly refuse to
pay debts (except as to credit reporting agencies or persons meeting the requirements of §1681);
and/or advertising for sale any debt in order to coerce payment of the debt. §1692d(1)-(4).3
At issue in this case are two (2) letters: one sent to plaintiff by defendant on or about
September 6, 2011 and another sent to plaintiff by defendant on or about September 14, 2011.
Plaintiff has failed to set forth any evidence demonstrating that sending two (2) collection
notices, especially wherein the second notice recognizes that part of the debt has been paid and is
informing the consumer of the balance due, constitutes harassing, oppressive, or abusive conduct
by defendant CPA.
Furthermore, the record is completely devoid of any evidence that either or both of these
letters contain any statements which could be remotely (and reasonably) construed as threatening
violence to procure payment of the debt, contain obscene or profane language intended to
intimidate the plaintiff into paying the debt; contain any threat to publish plaintiff’s name as
person refusing to pay a debt; or qualify as an advertisement for the sale of the plaintiff’s debt to
Charter as coercion to pay the debt. The record lacks any indicia of the type of conduct raising a
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triable question of fact under §1692. As such, summary judgment will be granted to the
defendant on any and all §1692d claims as contained in the plaintiff’s complaint.
15 U.S.C. §1692e
Under the FDCPA, a debt collector is prohibited from using “any false, deceptive, or
misleading representation or means in connection with the collection of any debt.” 15 U.S.C.
§1692e. Additionally, debt collectors are forbidden from falsely representing “the character,
amount, or legal status of debt;” from threatening “to take any action that cannot legally be taken
or that is not intended to be taken;” and, from failing to affirmatively identify itself as a debt
collector in any communication with the debtor. §1692e(2)(A); §1692e(5); §1692e(11).
Plaintiff contends that defendant has violated the above-referenced provisions because 1)
the substance of the collection letters and defendant’s name in and of itself fails to disclose the
defendant as a “debt collector;” 2) defendant misrepresented the “true amount” of the debt owed
by plaintiff; 3) statements in the collection letters led the plaintiff to believe that defendant would
report the alleged debt to the credit reporting agencies if plaintiff did not pay immediately the
entire alleged debt.
Plaintiff asserts that the collection letters failed to disclose the defendant as a “debt
collector” and that furthermore, the name “Credit Protection Association, LP” fails to clearly
disclose the defendant as a “debt collector.” Both assertions fail as contrary to established law.
Two other district courts have explicitly addressed the issue of the defendant’s name and
held that the name “Credit Protection Association” was not misleading or deceptive under the
FDCPA. Dunlap v. Credit Protection Association, LP, 419 F.3d. 1011, 1012 (9th Cir. 2005);
Campbell, 2013 WL 1282348, *7 (district court holds that the name “Credit Protection
Association, LP” does not violate the FDCPA citing Dunlap, supra.). This Court adopts the
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reasoning and holdings of these fellow courts and finds that the name “Credit Protection
Association, LP” does not violate §1692e(11).
Furthermore, the Court finds that the letter themselves clearly identify the defendant as a
debt collector. Both letters contain the same statement: “This is an attempt to collect a debt by a
debt collector and any information obtained will be used for that purpose.” A very similar
statement was found by the Eighth Circuit to pass the “unsophisticated consumer” test and be
sufficient to convey to even an unsophisticated consumer that the letter is from a “debt
collector.” Volden v. Innovative Financial Systems, Inc., 440 F.3d. 947, 955 (8th Cir. 2006).
Additionally, the letters clearly identify defendant CPA as “a professional collection agency”
retained by Charter to “take all appropriate steps to collect this debt.” Finally, the letters provide
a “Notice of Important Rights” which starts out with the statement “The Fair Debt Collection
Practices Act requires that we, as the debt collector, inform you that . . . .”
The plaintiff has offered nothing more than his own self-serving assertions that the letter
“confused” him. He has presented no affirmative or extrinsic evidence whatsoever that the
letters would reasonably confuse an “unsophisticated consumer” as to the identity and/or the
business of the defendant. As the “unsophisticated consumer” test is a practical test involving an
element of reasonableness, this Court finds that the subject letters effectively convey the fact that
they are from a debt collector and thus do not violate §1692e(11).
Next, plaintiff contends that defendant violated §1692e(5) because the letters caused him
to believe that if he did not pay the entire debt immediately, the debt would be reported to the
credit bureaus. He believes that certain statements within the letters constitute impermissible
threats to inform the credit bureaus of the debt which he contends CPA was not authorized to do
so by Charter.
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Again, §1692e(5) prohibits a debt collector from threatening to take any action that it
cannot legally take or that the debt collector does not intend to take; and any such “threat”
constitutes a false, deceptive or misleading representation. Furthermore, §1692e(9) prohibits a
debt collector from making it appear that it has been authorized to report the debt to the credit
bureaus when in fact it has been prohibited from doing so by the creditor.
Here, plaintiff contends that CPA’s collection letters contained the following statements
which made him believe that it would “imminently report the cable debt on his credit report:”
1) “ALWAYS PROTECT YOUR CREDIT RATING”
(September 6, 2011 letter)
2) that CPA was retained by Charter and “is authorized to take all
appropriate steps to collect this debt.”
(September 6, 2011 letter)
3) that CPA, upon plaintiff’s failure to make timely payments, would
“proceed with further collection activity.”
(September 14, 2011 letter)
Defendant avers, and plaintiff offers no evidence to the contrary, that 1) it does furnish
information regarding its collection accounts to credit reporting agencies; and 2) does so when
the debtor fails to pay in full the outstanding debt. Defendant avers that it would have reported
the cable debt in the event that plaintiff did not pay the debt; however, due to the filing of the
lawsuit all collection efforts ceased. Consequently, the statements as contained in the collection
letters were true; i.e. not false. Furthermore, failure to pay a legitimate debt owed “generally will
result in a negative impact on one’s credit report.” Pace, at 867.
Nowhere in either of the letters does CPA make any statement which remotely threatens
to report his debt to the credit bureaus. At best, phases such as “take all appropriate steps” and
“further collection activity” benignly imply that the plaintiff should pay his debt to protect his
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credit rating. Such implications do not constitute a §1692e(5) violation. See, Dunlap, at 1012-
13; Pace, at 867.
Although it is unclear from the plaintiff’s pleadings whether he is making an independent
claim of a violation of §1692e(9), such a claim has been addressed by a fellow district court and
denied. In Campbell, supra. the Court found that a similar collection letter from CPA “did not
assert or in any way mention that Charter had authorized the referenced credit report. Therefore,
no rational reading of the Letter could lead a debtor to conclude that Defendant was representing
that it had such authorization.” Id., at *8. Furthermore, the Court found that “Plaintiff offers no
evidence that Charter prohibited Defendant from filing a credit report as part of Defendant’s debt
collection activities on Charter’s behalf.” Id., at *8. The same lack of affirmative evidence by
plaintiff O’Connor exists in the instant case. All plaintiff has offered to the Court is a mere claim
of confusion and a general assertion that the letters raise a material issue of disputed fact. The
Court disagrees. The Court finds that no material issues of fact exist as to plaintiff’s §1692e(5)
and (9) claims, and defendant CPA is entitled to summary judgment as a matter of law.
The plaintiff next contends that defendant violated §1692e(2)(A) by falsely representing
the “character, amount, or legal status of debt.” He contends that he had settled the debt with
Charter; thus, he did not owe $381.81 as stated in the collection letters. Plaintiff’s “evidence” of
this “settlement” is a tape-recording he made on September 14, 2011 between himself and a
representative of Charter; and his affidavit. Plaintiff’s argument is meritless.
Firstly, the undisputed fact is that Charter referred a debt totaling $381.81 to CPA for
collection. It is also undisputed that the total debt amount of $381.81 included $331.00 for
unreturned equipment (a DVR) and $50.81 for services. The September 6th letter clearly
indicates that collection was being sought for the $331.00 debt as to the unreturned equipment.
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Plaintiff did not dispute the debt in writing which would have required CPA to verify the debt
and perhaps more clearly delineate what the debt covered. Instead, plaintiff contacted Charter
and tape-recorded a conversation he had with it. It is undisputed that plaintiff never tendered a
copy of this tape-recording to defendant until he filed this lawsuit and in connection with
discovery efforts by defendant. Thus, defendant was unaware of the contents of the conversation
at the time of the September 14th letter.
Charter informed CPA that the equipment had been returned; thus, leaving an outstanding
debt for the $50.81 services balance. Plaintiff offers no evidence to the contrary. His tape-
recording makes no mention of any dispute regarding the $50.81 service balance. He only avers
that he “intended” to dispute the entire debt; that “he may have been confused;” and that he
“believed he was disputing the entire debt.” Plaintiff’s Response [22], pgs. 12-13; Plaintiff’s
Affidavit. Plaintiff’s self-serving statements that he intended to dispute the entire debt and/or
that once the equipment was returned he owed Charter nothing simply fails to adequately
challenge defendant’s summary judgment motion.
Plaintiff never disputed the debt in writing as required under the FDCPA. §1692g(b).
Since he never disputed the debt in writing, CPA was under no legal obligation to verify the debt
to plaintiff. Defendant CPA was entitled to rely on Charter’s information as to the debt owed.
See, Clark v. Capital Credit and Collection Services, 460 F.3d. 1162, 1174 (9th cir.
2006)(internal citations omitted). It is undisputed that Charter initially referred a debt totaling
$381.81 to CPA; that this debt included $331.00 for unreturned equipment and $51.81 for service
balance. This was reflected in the September 6, 2011 letter. Although plaintiff contends that he
“intended to dispute the entire debt” he offers no affirmative evidence that the entire debt had
been settled with Charter. Instead, the record shows that Charter informed CPA that the
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equipment had been returned, leaving an outstanding debt of $50.81 for service balance. CPA
acknowledged the return of equipment and put plaintiff on notice of the $50.81 service balance
debt. Again, instead of disputing in writing to CPA of this remaining debt, plaintiff filed a
lawsuit.
The evidence before this Court is that CPA relied upon information given to it by Charter
as to plaintiff’s debt. Charter first informed CPA that the debt totaled $381.81 representing
$331.00 for unreturned equipment and $50.81 for service balance - this is reflected in the
September 6, 2011 letter. Charter then informed CPA that the equipment had been returned
leaving the service balance debt. The September 14, 2011 letter acknowledges the return of the
equipment and puts plaintiff on notice of the outstanding service balance debt. Plaintiff could
have disputed this outstanding debt in writing to CPA which would have caused CPA to verify
the debt (or complete settlement of the debt as claimed by plaintiff). However, again, plaintiff
chose not to do so. There is nothing before the Court showing that CPA made any false
representations as to the character, amount, or legal status of the debt owed by plaintiff in either
the September 6, 2011 or September 14, 2011 collection letters. Defendant is entitled to
judgment as a matter of law on plaintiff’s §1692e(2)(A) claim.
In summary, there are no material issues of fact in dispute and defendant is entitled to
judgment as a matter of law on all of the plaintiff’s §1692e claims as contained in his complaint.
15 U.S.C. 1692f
Section 1692f prohibits a debt collector from using “unfair or unconscionable means to
collect or attempt to collect any debt.” Several examples of “unfair or unconscionable means”
are identified in §1692f. None of these identified examples are present in the instant case.
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Plaintiff does not present any facts or examples of defendant’s conduct which he
maintains violates §1692f. Plaintiff fails to present any argument whatsoever as to how either
the September 6, 2011 or September 14, 2011 letter constitutes a violation of §1692f.
Bare assertions that plaintiff did not owe the debts reflected in the letters or that he was
“confused” by the letters is inadequate to support his §1692f claim. In the absence of facts and
supporting evidence, plaintiff fails to raise a triable issue that defendant engaged in unfair or
unconscionable conduct in violation of §1692f. See, Caw, 2013 WL 30567, at *3; Rollins, 2012
WL 6051999, at *4. Thus, defendant is entitled to judgment as a matter of law on plaintiff’s
§1692f claim as contained in his complaint.
Accordingly, there are no existing material issues of fact and defendant is entitled to
judgment as a matter of law on all FDCPA claims as contained in plaintiff’s complaint.
Dated this 23rd day of September, 2013.
UNITED STATES DISTRICT JUDGE
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