ABDUL K. KALLON, District Judge.
Daniel 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.
Under 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)).
The 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 non-moving 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).
The 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. 1975).
This 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.
Over a 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,
The 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 § 1692k(c)).
Turning to the specifics here, Lawson's § 1692e claim is based on the third letter ICS sent,
Likewise, 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))).
These 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.
The 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.
The parties dispute whether ICS's "reliance" defense is a valid defense to liability, independent of the bona fide error defense. ICS notes correctly that several federal appellate courts have recognized that, "if a debt collector reasonably relies on the debt reported by the creditor, the debt collector will not be liable for any errors." Clark v. Capital Credit & Collections, 460 F.3d 1162, 1177 (9th Cir. 2006).
The court is also not persuaded by ICS's contention that it need not raise the bona fide error defense to argue reliance,
ICS also contends that, pursuant to 15 U.S.C. § 1692g, it was entitled to assume the validity of Lawson's purported debt, which Lawson failed to dispute within thirty days. Doc. 33 at 5-6, 10.
Id. at 393-94 (quoting 15 U.S.C. § 1692k and S.Rep. No. 382, 95th Cong. at 4 (1977) (emphasis in original)). Other circuit courts have similarly concluded that plaintiffs need not dispute the validity of a debt pursuant to § 1692g in order to state a claim under § 1692e.
Alternatively, ICS argues that it is entitled to the bona fide error defense afforded to it by § 1692k(c). Lawson contends, as an initial matter, that the defense is unavailable because ICS raised it for the first time in its combined response/reply brief, and waived it by "disclaiming" it in its initial brief in support of its motion for summary judgment. Doc. 40 at 7-8. "While `[m]any district courts in the Eleventh Circuit reject new arguments raised in reply briefs,' this rule is designed to prevent any prejudice that might result when a party is deprived of the opportunity to respond to new arguments." Mt. Hebron Dist. Missionary Baptist Ass'n of AL, Inc. v. Sentinel Ins. Co., No. 3:16-CV-658-ECM-GMB, 2018 WL 6822621, at *1 (M.D. Ala. Oct. 24, 2018) (quoting Pattee v. Ga. Ports Auth., 477 F.Supp.2d 1272, 1274 (S.D. Ga. 2007)). Here, however, Lawson was not "deprived of the opportunity to respond." In fact, Lawson raised the defense first when he argued that ICS could not satisfy it in his combined initial/response brief, and then responded to the defense in his own reply brief when ICS raised the defense. See doc. 35 at 13-17. Furthermore, the court rejects Lawson's contention that ICS "disclaimed" the defense by contending in its initial brief that its reliance defense was sufficient to preclude liability, or by objecting to Lawson's interrogatories. See docs. 8 at 6; 33 at 7; 40 at 8; 40-1 at 3.
As for the defense itself, to establish it, ICS "must show by a preponderance of the evidence that its violation of the Act: (1) was not intentional; (2) was a bona fide error; and (3) occurred despite the maintenance of procedures reasonably adapted to avoid any such error." Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352 (11th Cir. 2009) (citation omitted); see 15 U.S.C. § 1692k(c).
The first prong of the inquiry is satisfied, as it is undisputed that ICS did not intend to make "false . . . representations" in violation of § 1692e and that it lacked actual notice of the discharge of the debt in bankruptcy. See doc. 33-1 ¶¶ 8, 11. To satisfy the second and third prongs of the defense,
Lawson challenges the bona fide error defense by arguing, first, that ICS's procedures were unreasonable because the account data submitted to Lexis-Nexis contained Lawson's outdated Tennessee address, and likely caused the erroneous results. Doc. 35 at 16; 40 at 10. Lawson, however, has presented no support for this contention. Instead, based on this record, the contention is based on speculation or entails that the court accepts Lawson's assumption that search databases are static and do not track subsequent moves a person makes. But "[s]peculation does not create a
Therefore, ICS has shown, by a preponderance of the evidence, that its violations resulted from a good-faith, reasonable error, notwithstanding its implementation of procedures "reasonably adapted" to avoid mistakenly collecting on discharged debts, including (1) employing Lexis-Nexis' automated "bankruptcy search" based on the account information it received from Comcast, and (2) promptly closing any accounts flagged as containing bankruptcy proceedings. See, e.g., Ross, 480 F.3d at 497 (finding that debt collector's use of a bankruptcy search performed by another firm, followed by promptly ceasing collection of any debt for which it was notified had been discharged, was a reasonable procedure under the third prong).
Accordingly, ICS' motion for summary judgment, doc. 33, is due to be granted, and Lawson's motion for summary judgment, doc. 35, is due to be denied, because ICS has satisfied the bona fide error defense under 15 U.S.C. § 1692k(c). The court will issue a separate order consistent with this opinion.
Moreover, even if it struck Deal's declaration, Lawson would have still failed to raise a genuine issue of material fact as to whether Comcast identified Lawson's address as the Tennessee address when it referred Lawson's account to ICS. Although Lawson contends that the subpoena response from Comcast proves otherwise, Comcast's response merely indicates that Lawson never received Comcast service at the Tennessee address and does not state that Lawson never lived at that address. See doc. 41-5 at 1 ("Comcast has no information for Daniel L. Lawson with service at . . . [the Tennessee address]"). Significantly, ICS's "account history" for Lawson's account lists the Tennessee address as "Last Client Address" and indicates that the "source" of the address was Comcast. See doc. 33-1 at 8, 4; 47-1 at 1-2. In other words, ICS has presented evidence independent of Deal to show that it had a valid basis for believing that Lawson lived at the Tennessee address.
"Daniel Lawson:
Your offer to settle the balance of $388.00 owed to Comcast for the reduced amount of $252.20 has been accepted. Please promptly send your payment to take advantage of this reduced settlement agreement.
Upon receipt of your $252.20, our office will update your account balance as settled in full. In the event that this account information has been forwarded to the national credit reporting bureaus, those files will also be updated appropriately. You have the right to inspect your credit file in accordance with federal law.
If payment is not received according to this settlement agreement, our office will resume collection of the entire balance of $388.00.
We are a debt collector attempting to collect a debt and any information obtained will be used for that purpose. This does not contain a complete list of the rights consumers have under Federal, State, or Local laws." Doc. 1-6 at 1.
15 U.S.C. § 1692e(8).
Rule 30(b)(6) requires the discovering party to provide a notice or subpoena naming an organization "as a deponent" and "describ[ing] with reasonable particularity the matters for examination." Fed. R. Civ. P. 30(b)(6). In turn, the organization "has an affirmative duty to provide a witness who is able to provide binding answers on behalf of the corporation." QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012). Here, although Lawson's deposition notice mentions Rule 30(b)(6) along with Rule 30(b)(1), the notice is deficient because it does not describe any "matters on which examination is requested" and because it names Selbitschka as the deponent rather than ICS. See Fed. R. Civ. P. 30(b)(6); doc. 37-1 Operative Plasterers' & Cement Masons' Int'l Ass'n of U.S. and Canada AFL-CIO v. Benjamin, 144 F.R.D. 87, 89 (N.D. Ind. 1992) (finding deposition notices defective under Fed. R. Civ. P. 30(b)(6) because they gave "no indication, apart from the bare recitation of Rule 30(b)(6), that the deponents were expected to testify on behalf of [plaintiff-organization]."). Accordingly, the court concludes that Selbitschka's deposition was given pursuant to Rule 30(b)(1), not Rule 30(b)(6). This distinction makes no difference here, however, because Selbitschka's declaration tracks his deposition testimony as to the bankruptcy scrub.
