United States District Court, N.D. Alabama, Northwestern Division
K. KALLON, UNITED STATES DISTRICT JUDGE
Lawson brings this action under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq., against I.C. System (“ICS”) for
making false representations in connection with the
collection of a debt. See doc. 1. At issue here is
ICS's attempts to collect a debt Lawson successfully
discharged in bankruptcy. The parties have filed
cross-motions for summary judgment, docs. 33 and 35, which
are fully briefed and ripe for consideration, docs. 37 and
40. After reading the briefs, reviewing the evidence, and
considering the relevant law, the court finds that ICS has
established that it is entitled to the bona fide error
defense and, as such, is entitled to summary judgment, and
Lawson's motion is due to be denied.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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. “Rule 56 mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (alteration in original). At summary
judgment, the court must construe the evidence and all
reasonable inferences arising from it in the light most
favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also
Anderson, 477 U.S. at 255. Any factual disputes will be
resolved in the non-moving party's favor when sufficient
competent evidence supports the non-moving party's
version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002).
However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th
Cir. 1989)). Moreover, “[a] mere ‘scintilla'
of evidence supporting the opposing party's position will
not suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252)).
moving party bears the initial burden of proving the absence
of a genuine issue of material fact. Id. at 323. The
burden then shifts to the nonmoving party, who is required to
“go beyond the pleadings” to establish that there
is a “genuine issue for trial.” Id. at
324 (internal quotations omitted). A dispute about a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
simple fact that both sides have filed a motion for summary
judgment does not alter the ordinary standard of review.
See Chambers & Co. v. Equitable Life Assurance
Soc., 224 F.2d 338, 345 (5th Cir. 1955) (explaining that
cross-motions for summary judgment “[do] not warrant
the granting of either motion if the record reflects a
genuine issue of fact”). Rather, the court will
consider each motion separately “‘as each movant
bears the burden of establishing that no genuine issue of
material fact exists and that it is entitled to judgment as a
matter of law.'” 3D Med. Imaging Sys., LLC v.
Visage Imaging, Inc., 228 F.Supp.3d 1331, 1336 (N.D.Ga.
2017) (quoting Shaw Constructors v. ICF Kaiser
Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004)).
“[C]ross motions for summary judgment will not, in
themselves, warrant the court in granting summary judgment
unless one of the parties is entitled to judgment as a matter
of law on facts that are not genuinely disputed.”
Bricklayers, Masons & Plasterers Int'l Union v.
Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir.
case arises out of a dispute over a debt collector's
attempts to collect a debt that was no longer owed. While
living on Smith Street in Florence, Alabama, Lawson incurred
a debt to Comcast. Doc. 35-1 ¶ 3. Lawson subsequently
filed a petition for Chapter 13 bankruptcy, which he then
converted to Chapter 7. See doc. 35-1 ¶ 3;
In re: Lawson, No. 14-82442-CRJ7 (Bankr. N.D. Ala.
Dec. 23, 2015), ECF Nos. 1, 31. The amended Schedule F listed
the Comcast debt, and the bankruptcy court sent notice of
Lawson's petition to Comcast. See docs. 1-2;
1-3. Ultimately, the court discharged Lawson's debts, and
sent the requisite notice to Comcast and the various credit
agencies. See docs. 1-4; 1-5.
year after the discharge, Comcast placed Lawson's account
balance of $388.00 with ICS, via a file transfer, for
collection. Docs. 33-1 at 1-2, 4, 16; 35-2 at 5; 47-2 at 1.
Comcast provided a Waynesboro, Tennessee address for Lawson,
doc. 47-2 at 2; see docs. 47-1 at 2; 33-1 at 8,
also did not notify ICS that the bankruptcy court had
discharged Lawson's debt, doc. 33-1 ¶ 8. On the same
date it received the account, ICS relayed Lawson's
information to Lexis-Nexis to perform a “bankruptcy
scrub, ” which involved a search of Lexis-Nexis'
“bankruptcy and deceased database to identify any
matching records.” Doc. 35-2 at 8. The search did not
reveal Lawson's bankruptcy petition or discharge. Doc.
33-1 ¶ 10. Thereafter, ICS sent an initial collection
letter to Lawson at the Tennessee address, which contained
the written notice required by 15 U.S.C. §
1692g(a). Doc. 33-1 ¶ 12. Lawson never received
this letter because he had not resided at that address
“since at least 2013.” Doc. 35-1 ¶¶
3-4. ICS sent a second letter to Lawson at the Tennessee
address, and then sent two more letters to Lawson in
Florence, Alabama. Doc. 35-2 at 6. Concurrent with the
letters, ICS reported the purported debt to the various
credit agencies. Docs. 33-1 ¶ 13; 35-2 at 6; 1-5 at 1.
Lawson never responded to ICS's letters or otherwise
disputed the purported debt, and filed the present action
instead. See doc. 33-1 ¶¶ 12, 14.
Whether ICS Made False Representations in Connection with
the Collection of a Debt
FDCPA aims, in part, to “eliminate abusive debt
collection practices by debt collectors[.]” 15 U.S.C.
§ 1692(e). Towards this end, the Act prohibits a debt
collector from “us[ing] any false, deceptive, or
misleading representation or means in connection with the
collection of any debt, ” 15 U.S.C. § 1692e,
including “the false representation of the character,
amount or legal status of any debt, ” id.
§ 1692e(2)(A). Furthermore, “the FDCPA typically
subjects debt collectors to liability even when violations
are not knowing or intentional.” Owen v. I.C. Sys.,
Inc., 629 F.3d 1263, 1271 (11th Cir. 2011).
“Nevertheless, a debt collector's knowledge and
intent can be relevant-for example, a debt collector can
avoid liability if it ‘shows by a preponderance of
evidence that the violation was not intentional and resulted
from a bona fide error notwithstanding the maintenance of
procedures reasonably adapted to avoid any such
error.'” Crawford v. LVNV Funding, LLC,
758 F.3d 1254, 1259 n.4 (11th Cir. 2014) (quoting 15 U.S.C
to the specifics here, Lawson's § 1692e claim is
based on the third letter ICS sent,  and the decision to report
the debt as delinquent to credit agencies. Docs. 1 at 4; 35
at 9. In analyzing the claims related to the letter, the
court must “employ the ‘least sophisticated
consumer' standard.” LeBlanc, 601 F.3d at
1193 (citations omitted). “The least sophisticated
consumer can be presumed to possess a rudimentary amount of
information about the world and a willingness to read a
collection notice with some care.” Id. at
1194. This standard is an objective test that
“protect[s] naive consumers, . . . [but] also prevents
liability for bizarre or idiosyncratic interpretations of
collection notices by preserving a quotient of
reasonableness.” Id. Viewed under the
“least sophisticated consumer” standard, the
court agrees with Lawson that the letter makes false
representations in connection with the collection of a debt
by demanding payment for a debt Lawson discharged in
bankruptcy. See Ross v. RJM Acquisitions Funding
LLC, 480 F.3d 493, 495 (7th Cir. 2007) (“Dunning
people for their discharged debts . . . is prohibited by the
[FDCPA], which so far as relates to this case prohibits a
debt collector . . . from making a false representation of
the character, amount, or legal status of any debt.”
(citations and quotations omitted)); Randolph v. IMBS,
Inc., 368 F.3d 726, 728 (7th Cir. 2004) (“A demand
for immediate payment while a debtor is in bankruptcy (or
after the debt's discharge) is ‘false' in the
sense that it asserts that money is due, although, because of
the automatic stay (11 U.S.C. § 362) or the discharge
injunction (11 U.S.C. § 524), it is not.”);
Bacelli v. MFP, Inc., 729 F.Supp.2d 1328, 1332 (M.D.
Fla. 2010) (quoting Randolph, 368 F.3d at 728)).
reporting Lawson's purported debt to the credit agencies,
which ICS admits it did, see docs. 33-1 ¶ 13;
1-5, also constitutes “false . . . representation[s] .
. . in connection with the collection of [a] debt.” 15
U.S.C. § 1692e. Moreover, “§ 1692e is . . .
read to bar ‘any' prohibited representation,
regardless of to whom it is directed, so long as it
is made ‘in connection with the collection of any
debt.'” Miljkovic, v. Shafritz &
Dinkin, P.A., 791 F.3d 1291, 1301 (11th Cir. 2015)
(citation omitted) (emphasis in original). Thus, although the
credit reports were directed to the credit agencies instead
of Lawson, they constitute “false . . .
representation[s]” to the credit agencies because they
“erroneously state the amount of the debt owed”
by Lawson and “incorrectly identify the holder of the
alleged debt.” See Miljkovic, 791 F.3d at
1306. Furthermore, the testimony of ICS's Vice President
Michael J. Selbitschka that ICS reported the debt as
delinquent due to its “statement of work” with
Comcast, see doc. 35-2 at 7, establishes that ICS
reported the debt “in connection with the collection
of” Lawson's purported debt. See Caceres v.
McCalla Raymer, LLC, 755 F.3d 1299, 1302 (11th Cir.
2014) (noting that “if a communication conveys
information about a debt and its aim is at least in part to
induce the debtor to pay, it falls within the scope of the
Act.” (citing Romea v. Heiberger &
Assocs., 163 F.3d 111, 116 (2d Cir. 1998))).
findings establish that ICS made “false . . .
representation[s] . . . in connection with the collection of
a debt.” See 15 U.S.C. § 1692e. ICS
resists these findings by arguing that, based on
Montgomery v. Florida First Financial Group, No.
6:06-CV-1639-ORL-31KRS, 2008 WL 3540374, at *5-6 (M.D. Fla.
2008), finding a violation of § 1692e would
“render the specific provisions in § 1692e(8)
meaningless.” Doc. 37 at 13. But the court in
Montgomery held only that a debt collector's
threats to arrest the plaintiff violated § 1692e(4),
rather than § 1692d, noting that, “because §
1692e(4) specifically addresses misrepresentations regarding
arrest for nonpayment of a debt, to construe the same act as
violative of the general provisions of § 1692d would
render it superfluous.” Id. at *6. Neither
provision of the FDCPA is at issue here. Moreover, the
language and structure of § 1692e indicate ICS's
credit reporting activity can violate the general provision
of § 1692e, notwithstanding subsection (8)'s focus
on communications regarding credit information. See
Milijkovic, 791 F.3d at 1301 (“Section 1692e
broadly prohibits ‘any false, deceptive, or
misleading representation or means in connection with
the collection of any debt[, ]” and
proceeds to “list examples of conduct that would
violate § 1692e.” (emphasis in original)). And,
“[t]he plain text of § 1692e . . . makes clear
that the examples of violations under that section are not
meant to ‘limit the general application'”
of the broad prohibition contained in its first sentence.
McCamey v. Capital Mgm't, Servcs., LP, No.
5:17-cv-1429-UJH-VEH, 2018 WL 3819828, at *1 n.1 (N.D. Ala.
Aug. 10, 2018) (quoting § 1692e). Thus, while subsection
(8) provides an example of conduct related to credit
information that violates § 1692e, it does not preclude
the general application of the first sentence of § 1692e
to a debt collector's misrepresentations in reporting a
debt. See id.
Whether ICS's Reliance on Comcast's
Representations Bars Its Liability.
court turns next to ICS's contentions that it did not
violate § 1692e because: (1) it “had the right to
rely on Comcast to determine the validity of the debt at
issue, ” and (2) it was entitled to assume the validity
of the debt when Lawson failed to dispute it within thirty
days of receiving the notice required by § 1692g(a).
Doc. 33 at 4. The court addresses these contentions in turn.
Whether ICS had the right ...