United States District Court, D. Colorado
Brooke Jackson, United States District Judge
order addresses defendant's motion for summary judgment
[ECF No. 28]. For the reasons given below, the motion is
case involves alleged violations of the Fair Debt Collection
Practices Act (FDCPA). Mr. David Hamilton is a Colorado
resident and resides in Arapahoe County. ECF No. 1, ¶ 4.
Capio Partners, LLC (Capio) is a Texas business that manages
and collects accounts receivable for other companies. ECF No.
28 at 4, ¶ 1. Capio purchased Mr. Hamilton's account
from CP Medical LLC, and on May 6, 2015 Capio mailed a letter
to Mr. Hamilton regarding the account. Id. at 5. The
parties do not dispute the contents of the letter or that the
letter was the initial communication between the parties.
See ECF No. 1, ¶ 10; ECF No. 28 at 5,
¶¶ 5-8. Although the date of receipt is unclear,
Mr. Hamilton admits he received the letter. ECF No. 1, ¶
9. Capio's letter offered to settle its debt claim,
stating in relevant part:
We have been authorized to extend to you a special offer of
settlement for $180.00. This offer will save you 40%. If you
choose to accept this offer, payment must be received in this
office on or before 05/21/2015.
This settlement offer and the deadline for accepting it do
not in any way affect your right to dispute this debt and
request validation of this debt during the 30 days following
your receipt of this letter as described on the reverse side.
If you do not accept this settlement offer you are not giving
up any of your rights regarding this debt.
ECF No. 28, Ex. A, at 1. The back of the letter provided
notice of Mr. Hamilton's rights as required by 15 U.S.C.
§ 1692g(a). See ECF No. 28 at 5, ¶ 8;
ECF No. 30 at 2.
April 4, 2016 Mr. Hamilton filed a complaint alleging that
Capio violated the FDCPA. ECF No. 1, ¶ 15. Mr. Hamilton
contends that Capio's settlement offer overshadows and is
inconsistent with the notice of his rights, violating 15
U.S.C. § 1692g(b). Id. ¶ 12.
September 7, 2016 Capio filed a motion for summary judgment.
ECF No. 28. Capio reads the complaint to raise a claim only
under § 1692g(b). See Id. at 14. Capio then
asserts that whether a notice is overshadowed or contradicted
is question of law, and that as a matter of law the letter
did not violate § 1692g(b). Id. at 8. In his
brief in opposition to Capio's motion for summary
judgment, Mr. Hamilton responds that the issue of
overshadowing is a question of fact for the jury. ECF No. 30
at 9. Additionally, Mr. Hamilton argues that his complaint
set forth ample facts to state claims for violations of 15
U.S.C. §§ 1692d, 1692e, and 1692f. ECF No. 30 at
Court may grant summary judgment if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party has the burden to show that there is
an absence of evidence to support the nonmoving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). The nonmoving party must “designate specific
facts showing that there is a genuine issue for trial.”
Id. at 324. A fact is material “if under the
substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
material fact is genuine if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. The Court
will examine the factual record and make reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Concrete Works of Colorado, Inc. v. City
& Cnty. of Denver, 36 F.3d 1513, 1517 (10th Cir.
enacted the FDCPA in 1977 “to eliminate abusive debt
collection practices by debt collectors.” 15 U.S.C.
§ 1692. The FDCPA regulates interactions between
consumer debtors and “debt collectors.”
Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.
2002). Accordingly, a defendant can be held liable only if it
is a debt collector within the meaning of the FDCPA.
James v. Wadas, 724 F.3d 1312, 1315-16 (10th Cir.
2013). The FDCPA defines a debt collector as “any
person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is
the collection of any debts . . . .” 15 U.S.C. §
1692a. Capio is in the business of collecting debts and Capio
mailed a letter to Mr. Hamilton for the purpose of collecting
his debt, so Capio is a debt collector subject to the
FDCPA's requirements. See ECF No. 28 at 4-5,
courts review FDCPA claims under an objective
“least-sophisticated-consumer” standard. See
Ferree v. Marianos, 129 F.3d 130, at *1 (10th Cir. 1997)
(unpublished); see also Jensen v. Pressler &
Pressler, 791 F.3d 413, 419 (3d Cir. 2015); Russell
v. Absolute Collection Servs., Inc., 763 F.3d 385, 394
(4th Cir. 2014); LeBlanc v. Unifund CCR Partners,
601 F.3d 1185, 1194 (11th Cir. 2010); Donohue v. Quick
Collect, Inc., 592 F.3d 1027, 1033 (9th Cir. 2010);
Barany-Snyder v. Weiner, 539 F.3d 327, 333 (6th Cir.
2008); Taylor v. Perrin, Landry, deLaunay &
Durand, 103 F.3d 1232, 1236 (5th Cir. 1997); Russell
v. Equifax A.R.S.,74 F.3d 30, 34 (2d Cir. 1996);
cf. Pollard v. Law Office of Mandy L. Spaulding, 766
F.3d 98, 103 n.4 (1st Cir. 2014) (using a similar