Goodman v. Asset Acceptance, LLC

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         Plaintiff brings this action under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., asserting Defendants violated the act when they sent a letter seeking to collect an alleged debt which was time-barred. The matter is now before the Court on Defendants' Motion for Summary Judgment (the “Motion”) (ECF No. 41) seeking an order in their favor on this action. The Motion is now fully brief. Upon consideration of the Motion, the relevant court records, and the applicable law, and being otherwise fully advised, the Court finds and orders as follows.

         I. BACKGROUND

         Plaintiff Aaron Goodman is in the masonry business and has been for more than 22 years. In 2001, Plaintiff obtained a Gordon's Jewelers Citibank credit card and purchased something in that store (the “Loan”).^[1] At some point in time, the Loan was sold to Defendants.

         In January 2012, Defendants entered into a Consent Decree with the Federal Trade Commission (“FTC”) where, among other things, Defendants agreed to make the following disclosure when collecting on debt where the debt is past the date for obsolescence under the Fair Credit Reporting Act, 15 U.S.C. § 1681c: “The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it, and we will not report it to any credit reporting agency.” U.S. v. Asset Acceptance, LLC, Consent Decree, No. 8:12-cv-00812-T-27EAJ (M.D. Fla. Jan. 31, 2012), ECF No. 5, p. 13.

         In March 2013 Defendants sent Plaintiff a collection letter. In the letter, as required by the Consent Decree, the following disclosure was made: “The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it, and we will not report it to any credit reporting agency.” (ECF No. 41-5.) Plaintiff took no action on the letter. He put it in his desk and essentially forgot about it until after he filed this lawsuit. This letter is not the one complained of in this case.

         In September 2015, Defendants entered into a Consent Order with the Consumer Financial Protection Bureau (“CFPB”). In the Matter of Encore Capital Group, Inc., Administrative Proceeding No. 2015-CFPB-0022, found at https://www.consumerfinance.gov/ policy-compliance/enforcement/actions/encore/ (last visited December 13, 2019) (“Consent Order”). Pursuant to the Consent Order, Defendants agreed to include the following statement for consumer accounts where the debt is time-barred and generally cannot be included in a consumer report: “The law limits how long you can be sued on a debt and how long debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau.” (Consent Order, pp. 38-39.)

         In June 2018, Defendants sent Plaintiff the collection letter (the “Letter”) at issue. In that Letter, as required by the Consent Order, Defendants made the following disclosure (the “Disclosure”): “The law limits how long you can be sued on a debt and how long debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau.” (ECF No. 41-6 (italics in original).) When Plaintiff received this letter, he was upset by its age, looked up the statute of limitations, believed the statute had run, and contacted a lawyer. Plaintiff made no payment nor did he make any promise to make any payment. Plaintiff does not contend, nor could he, that Defendants sued him or threatened to sue him if he did not pay the Loan.

         Based on the Letter, Plaintiff filed this lawsuit asserting two claims under Section 1692e of the FDCPA. The second claim is identified as a class action claim but no motion has ever been filed to certify any class. Defendants have moved for summary judgment alleging Plaintiff cannot show they violated the FDCPA.

         II. LEGAL STANDARD

         Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party 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- 70 (10th Cir. 1994). 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 is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). “The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted). The facts, however, must be considered in the light most favorable to the nonmoving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).

         III. ANALYSIS

         A. Elements of the FDCPA Claim

         Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(d). In order to establish his claim under the FDCPA, Plaintiff must prove the following:

(1) Plaintiff is a “consumer” under 15 U.S.C. § 1692a(3);

(2) The “debt” arises out of a transaction entered into primarily for personal, family, or household purposes, 15 U.S.C. § 1692a(5);

(3) Defendants are “debt collectors” within the meaning of 15 U.S.C. § 1692a(6); and

(4) Defendants violated a provision of 15 U.S.C. § 1692e.

See Rhodes v. Olson Associates, P.C., 83 F.Supp.3d 1096, 1103 (D. Colo. 2015) (citation omitted). In this case, Defendants contend Plaintiff cannot establish the second and fourth requirements, i.e., that the Loan was entered “primarily for personal, family, or household ...