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Kiernan v. Alpine Credit, Inc.

United States District Court, D. Colorado

May 23, 2018



          Nina Y. Wang, Magistrate Judge.

         This matter comes before the court on Defendant Alpine Credit, Inc.'s (“Defendant” or “Alpine Credit”) Motion for Summary Judgment [#18, filed February 28, 2018]. The Motion is before the court pursuant to the Order of Reference dated July 17, 2017 [#10], 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. The court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law. For the following reasons, Alpine Credit's Motion for Summary Judgment is GRANTED.


         Plaintiff Rachel Kiernan commenced this action on June 9, 2017, asserting one claim for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., alleging that Alpine Credit has reported to a consumer reporting agency that Plaintiff is delinquent on an account that Plaintiff disputes. [#1]. Plaintiff further alleges that Alpine Credit is operating illegally in violation of 15 U.S.C. § 1692f, and is attempting to collect a debt using false, misleading or deceptive information in violation of 15 U.S.C. §1692e. Plaintiff asserts that Alpine Credit has violated, at a minimum, 15 U.S.C. §§ 1692e, 1692e(1), 1692e(10), 1692f, 1692f(1). Alpine Credit filed its Answer on June 24, 2017, [#6], and the court subsequently held a Scheduling Conference and set various pretrial dates and deadlines. See [#16, #17].

         On February 28, 2018, Alpine Credit filed the Motion for Summary Judgment asserting that Plaintiff has not produced her credit report or a copy of her letter of dispute, relevant to her first theory of liability, and that Alpine Credit by contrast has tendered a copy of its Colorado collection agency license, relevant to Plaintiff's second theory of liability. [#18]. In Response, Plaintiff reframes her theories of liability as follows:

the Defendant is operating illegally pursuant to a cancelled license in violation of 15 U.S.C. §1692f, ¶20 Complaint; the Defendant is attempting to collect a debt using false, misleading or deceptive information in violation of 15 U.S.C. §1692e, ¶22 Complaint; [] the Defendant is attempting to collect any amount not authorized by agreement or permitted by law in violation of 15 U.S.C. §1692f(1), ¶23 Complaint.

         [#19 at 1]. Plaintiff appears to concede that Alpine Credit has reported the debt as “disputed, ” and is operating with a current license. [#19 at 2-3]. Plaintiff contends, however, that Alpine Credit “continues to publish false, deceptive and misleading information (incorrect address and name of actual debt collector) on [her] consumer credit report” and that Alpine Credit fails to address in the Motion for Summary Judgment Plaintiff's allegation that it is “trying to collect an amount greater than that which is authorized by law or by agreement, ” by attempting to collect interest on the debts. [Id. at 2, 4]. Plaintiff then insists that “[w]hether the Defendant is violating 15 U.S.C. § 1692f using false, deceptive or misleading information is disputed and a question of fact.”[1] [Id. at 2].

         In Reply, Alpine Credit argues that Plaintiff's assertions regarding the use of an incorrect address and name and its attempt to collect interest constitute new theories not pled in the Complaint. [#22]. Alpine Credit also asserts an evidentiary challenge to the exhibit Plaintiff offers in support of her theory regarding Defendant's use of an incorrect address and name. See [id.] The court held a Final Pretrial Conference and entered a Pretrial Order on April 17, 2018. See [#25, #26].


         Summary judgment is appropriate only if “the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

         When, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying “a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citation omitted). “The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Id. at 670-71. Once the movant meets this initial burden, the nonmovant assumes the burden to put forth sufficient evidence to demonstrate the essential elements of the claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Conclusory statements based merely on speculation, conjecture, or subjective belief are not competent summary judgment evidence. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of his case or a denial of an opponent's allegation, ” or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).


         The Parties assert that the material facts are not disputed. See [#18, #19]. Scott Allely, the manager for Alpine Credit, attests that he incorporated Allegiant Receivables Solutions, Inc. (“Allegiant”) in April 2015 and obtained for the company a license as a Colorado collection agency. [#18-10 at ¶ 2]; see [#18-5 at 1]. In December 2015, Allegiant purchased the assets of Alpine Credit, and Alpine Credit “subsequently dissolved.” [#18-10 at ¶ 2]. Alpine Credit was licensed as a collection agency at the time of the purchase and “had been [licensed] for many years prior to the sale.” [Id.]; see [#18-5 at 2]. In January 2016, Mr. Allely caused a tradename affidavit to be filed with the Colorado Secretary of State making Alpine Credit a tradename of Allegiant. [#18-10 at ¶ 3]. At the time Allegiant purchased Alpine Credit's assets, Alpine Credit was located at 12191 W 64th Ave., Suite 210, Arvada, where it remains located. [Id. at ¶ 7]. This location was published on the internet, with telephone providers, and with the post office as Alpine Credit's address. [Id.]; see [#18-5; #18-6].

         Between 2012 and 2014, Plaintiff incurred financial obligations with the original creditors, Radiology Imaging Associates, Inc. and Medical Imaging of Colorado, and those obligations were placed with Allegiant for collection. [#18-10 at ¶¶ 2, 4]. Mr. Allely attests that in January 2016, “within the time provided for by the Administrator of the Colorado Fair Debt Collection Practices Act, he contacted Alpine's clients and resolicited the accounts for Radiology Imaging and Medical Imaging of Colorado as accounts of Allegiant d/b/a Alpine.” [Id. at ¶ 4]. These accounts resolicited as Allegiant d/b/a Alpine included four belonging to Plaintiff. [Id.] Mr. Allely attests that he reviewed the notes kept by Alpine Credit “as part of the assets Allegiant had purchased, ” and that those notes are “incorporated into those kept by Allegiant on the accounts of the former Alpine Credit.” [Id. at ¶ 5]; see [#18-4]. Mr. Allely also attests that he “reviewed the ...

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