United States District Court, D. Colorado
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
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