Schuerkamp v. Afni, Inc.
Filing
42
ORDER: Granting Motion for Summary Judgment 16 . This action is dismissed. Signed on 11/16/2011 by U.S. District Judge Michael R. Hogan. (jw)
<![CDATA[
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
MONICA SCHUERKAMP,
Case No. 10-6282-HO
Plaintiff ,
ORDER
vs.
AFNI, INC.,
Defendant.
Plaintiff,
defendant
Afni,
Monica
Inc.
Schuerkamp,
asserting
Collection Practices Act
(FDCPA).
brings
violations
this
of
action against
the
Fair
Debt
Afni seeks summary judgment
contending it committed no violations of the Act.
Afni is a debt; collection agency which reports delinquent
DirecTV accounts to consumer reporting agencies.
On May 27, 2010,
DirecTV assigned an account to Afni for collection.
ORDER - page 1
The assigned
account listed Monica Schueraamd in Portland, Oregon.
Afni uses LexisNexis Risk Solutions batch products to find the
most
current
address
to
send
initial
notices
to
debtors.
LexisNexis uses public records to identify updated addresses.
Afni
provided LexisNexis the name Monica Schueraamd along with a last
known
address in Portland, Oregon, a social security number, and
a home phone number.
LexisNexis reported back to Afni the address
of 2937 NE Newcastle PI., Corvallis, Oregon 973304118.
Since the social security numbers purportedly matched and the
person listed at the address (plaintiff Monica Schuerkamp) closely
resembled the debtor's name, Afni sent the notice to the Corvallis
address addressed to Monica Schueraamd on about May 28, 2010.
The notice read in part:
This account has been placed with our agency for
collection.
We are requesting your assistance in
resolving this matter. We may report information about
your account to credit bureaus.
If you have any questions, please contact our office toll
free at (866)352-0472 Monday through Friday 7am-9pm CST.
For proper credit on your account, please write this
number 30041303 on your payment.
Unless you notify this office within 30 days after
receiving this notice that you dispute the validity of
the debt or any portion thereof, this office will assume
the debt is valid. If you notify this office in writing
within 30 days from receiving this notice that you
dispute the validity of the debt or any portion thereof,
this office will: obtain verification of the debt or
obtain a copy of a judgement and mail you a copy of such
judgement or verification. If you request this office in
writing within 30 days after receiving this notice, this
office will provide you with the name and .address of the
original creditor,' if different from the current
ORDER - page 2
creditor. This is an attempt to collect a debt.
Any
information obtained will be used for the purpose. You
have the right to inspect your credit. This letter is
from a debt collector.
Exhibit A (attached to Complaint (#1)).
the
account
number
for
Monica
The payment coupon listed
Schueraamd
and
listed
Monica
Schueraamd as the addressee.
On or about June 8, 2010, plaintiff called Afni and stated she
never lived at the address for the DirecTV account and did not go
by the name Monica Schueraamd.
According to plaintiff, Afni told
her to call DirecTV to report that this was not her account.
Deposi tion of Monica
w. Schuerkamp (attached to Declaration of
Jeffrey I. Hasson (#37) as Exhibit B) at p. 21.
report about the debt to DirecTV.
Afni made a fraud
On June 14, 2010, Afni closed
the account at DirecTV's request and took no further action on the
account.
Afni
asserts
that
the
notice
it
sent
complied with the
requirements of the FDCPA, and that even if there were a violation,
it is entitled to the bona fide error defense.
In addition, Afni
contends that plaintiff lacks standing to bring this action.
~
Standing
plaintiff
asserts
violations
of
1692g (a) (2), 1692e (5), and 1692e (2) (A),
15
U.S.C.
§§
1692g(b),
The statutes regulate the
interactions a debt collector can have with a consumer.
ORDER - page 3
Afni
asserts that plaintiff is not a consumer as defined by the FDCPA.
A "consumer" is "any natural person obligated or allegedly
obligated to pay any debt."
15 U.S.C. § 1692a(3).
A "debt" is
"any obligation or alleged obli9ation of a consumer to pay money
arising
out
of
a
transaction
in
which
the
money,
property,
insurance, or services which are the subject of the transaction are
primarily for personal, family, or household purposes, whether or
not such obligation has been reduced to judgment."
15 U.S.C.§
1692a(5).
Plaintiff Monica Schuerkamp is not obligated to pay the debts
of the debtor listed in the notice, Monica Schueraamd.
account belonged to Monica Schueraamd.
The DirecTV
Plaintiff does not know
whether the underlying transaction for the account was primarily
for personal, family or household use.
15 U.S.C. 1692(g) requires debt collectors to provide certain
information to the "consumer," and to take certain actions in
response to "consumer" requests or notices.
prohibits
a
debt
collector
from
using
15 U.S.C. § 1692e
false
or
misleading
representations in connection with a "debt."
Summary judgment is not appropriate as to the standing issue
because there are issues of fact as to whether plaintiff was a
"person
allegedly obligated to pay [the] debt" referred to by
the DirecTV account.
The record reflects that defendant obtained
information indicating that a
ORDER - page 4
pe~son
with plaintiff's name lived at
the Corvallis address and that the last name was similar enough to
merit sending the notice to that address, given that the social
security numbers matched.
Accordingly, an inference that plaintiff
is a consumer protected by the statutes at issue could be made.'
As to the whether the account was primarily for personal, family,
or household purposes, further development of the facts would be
necessary given that plaintiff does not have access as to the
purpose of the account.
basis
of
standing
is
Accordingly,
denied.
summary judgment on the
However,
sUl1U1lary
judgment
is
appropriate for the reasons stated below.
~
FDCPA Requirements
J.ll.
Section 1692 (gl (al
15 U.S.C.
(a)
Not~ce
§
l692(g) provides in part;
of debt; contents
Within five days after the initial communication with a
consumer in connection with the collection of any debt,
a debt collector shall, unless the following information
is contained in the initial communication or the consumer
has paid the debt, send the consumer a written notice
containing-
(2) the name of the creditor to whom the debt
is owed;
lIn addition, the liability section casts liability on "any debt collector who fails to comply
with any provision of this subchapter with respect to any person.... " 15 U.S.C. § 1692k
(emphasis added).
ORDER - page 5
Plaintiff asserts that defendant failed to effectively convey
the "current" creditor.
The Notice lists "afni" in large bold
letters at the top and also lists Afni, Inc. along with its address
across the top.
The notice itself states that "this account has
been placed with our agency for collection," and that "[t 1his
letter is
from a debt collector."
There is no dispute that
plaintiff understood that Afni was the debt collector.
listed,
under creditor,
The notice
DirecTV, and also included the DirecTV
account number and instructions to make checks payable to DirecTV
and included DirecTV's address.
"Creditor"
means any person who offers or extends credit creating a
debt or to whom a debt is owed, but such term does not
include any person to the extent that he receives an
assignment or transfer of a debt in default solely for
the purpose of facilitating collection of such debt for
another.
15 U.S.C. § 1692a(4).
There is no legitimate dispute that the notice contained the
name of the creditor to whom the debt was owed.
Plaintiff argues,
however, that the disclosure was overshadowed by the language that
the "account has been placed with our agency for collection."
While it is true that
[tl he statute is not satisfied merely by inclusion of the
required ... notice; the notice Congress required must be
conveyed effectively to the debtor. It must be large
enough to be easily read and sufficiently prominent to be
noticed~even
by the least sophisticated debtor ...•.
Furthermore, to be effective, the notice must not be
overshadowed or contradicted by other messages or notices
ORDER - page
6
appearing in the
collection agency.
initial
communication
from
the
Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222,
1225 (9th Cir. 1988).
No matter how unsophisticated a debtor is,
the listing of DirecTV could not be missed.
The notice also
clearly indicated that Afni was a debt collector and did not
overshadow the notice that DirecTV was the creditor.
trier of fact could conclude otherwise.
No reasonable
See Hasbrouck v. Arrow
Financial Services LLC, 2011 WL 1899250, at *3-4 (N.D.N.Y. May 19,
2011)
(The "unsophisticated consumer" isn't a dimwit. She may be
"uninformed,
naive,
[and]
trusting, "but she has
"rudimentary
knowledge about the financial world" and is "capable of making
basic logical deductions and inferences.")
In addition, plaintiff
has not presented any evidence beyond her own counsel's speculation
that the required notice fails.
See id. at *4:
Mere
speculation
that
a
document
confuses
the
unsophisticated debtor is not enough to survive a motion
for summary judgment filed by a debt collector .... The
debtor must establish evidence of confusion with more
than his own self-serving assertions.
The motion for summary judgment is granted as to the section
1692g (a) (2) claim.
l1l
Section 1692g(b)
15 U.S.C. 1692g(b) prnvides in part:
If the consumer notifies the debt collector in writing
within the thirty-day period described in subsection (a)
of this section that the debt, or any portion thereof, is
ORDER - page 7
disputed, or that the consumer requests the name and
address of the original creditor, the debt collector
shall cease collection of the debt, or any disputed
portion thereof, until the debt collector obtains
verification of the debt or a copy of a judgment, or the
name and address of the original creditor, and a copy of
such verification or judgment, or name and address of the
original creditor, is mailed to the consumer by the debt
collector. Collection activities and communications that
do not otherwise violate this subchapter may continue
during the 30-day period referred to in subsection (a) of
this section unless the consumer has notified the debt
collector in writing that the debt, or any portion of th~
debt, is disputed or that the consumer requests the name
and address of the original creditor. Any collection
activities and communication during the 30-day period may
not overshadow or be inconsistent with the disclosure of
the consumer's right to dispute the debt or request the
name and address of the original creditor.
Plaintiff contends
threats
of
disclosure
credit
regarding
that
harm,
the
notice
actually
disputing
the
itself,
by
including
overshadowed
the
required
debt.
15
See
U.S.C.
§
l692g(a) (4) (notice shall include a statement that if the consumer
notifies the debt collector in writing within the thirty-day period
that the debt,
or any portion thereof,
is disputed,
the debt
collector will obtain verification of the debt or a copy of a
judgment. against the consumer and a copy of such verification or
judgment will be mailed to the consumer by the debt collector).
Although the record only supports a finding that defendant did
in fact cease Collections activities following the phone call from
plaintiff and that plaintiff did not dispute the debt in writing,
plaintiff argues that the threat overshadows the dispute disclosure
and is itself the violation.
ORDER - page 8
The purported threat is the statement
that
"We may report information about your account to credit
bureaus."
There is insufficient evidence to support a finding that
the least sophisticated consumer would be misled or that such
language would overshadow the right to dispute the debt.
~,
Cruz v.
(N.D.Cal.
MRC Receivables Corp.. ,
2008)
(notice stating,
563 F.Supp.2d 1092,
among other ·things,
~
1097
that
"a
negative credit report reflecting on your credit record may be
submitted" was not misleading or unfair to the least sophisticated
consumer.) .
The motion for summary judgment as to the section
1692g(b) claim is granted.
111
Section 1692e
15 U.S.C.
§
1692e provides in part:
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt. Without limiting the general
application of the foregoing, the following conduct is a
violation of this section:
(2) The false representation of-(A) the character, amount, or legal
status of any debt; or
(B)
any
services
rendered
or
compensation which may be lawfully
received by any debt collector for
the collection of a debt.
(5) The threat to take any action that cannot
legally be taken or that is not intended to be
ORDER - page 9
taken.
Plaintiff contends that defendant violated section l692e by
stating that she owes a debt she does not owe and by threatening to
report the debt to the credit bureau.
Although, as noted above, there is an issue of fact as to
whether plaintiff has standing because she may qualify as a person
allegedly obligated for a debt, there is no dispute that the notice
itself named Monica
security number.2
Schueraamd and did not
include
a
social
Plaintiff has not provided sufficient evidence
demonstrating that the representation that Monica Schueraamd owed
a debt was false.
Plaintiff also argues that
even if the notice is not viewed as a communication to
Plaintiff because her name is not listed on the letter,
Defendant did eventually state that Plaintiff owed the
debt by refusing to immec\iately cease collection, instead
ordering Plaintiff to dispute the debt again, this time
with the original creditor.
Plaintiff's Response (#28) at p. 6.
However,
plaintiff
testified
that
what
she
remembered
regarding the call to Afni was that all Afni did was give her
information to call DirecTV to report this was not her account.
Schuerkamp Deposition (attached to Response (#28) as Exhibit B) at
21t was the purported matching social security number, along with the similar name, that
prompted both LexisNexis and defendant to conclude that plaintiff's address was the correct
address for the debtor. Had the social security number beeR included in the notice, plaintiff
might have reasonably concluded that she was the target of the notice and that defendant falsely
stated that she was the debtor.
.
ORDER - page 10
p. 21.
There is no evidence to support an inference that Afni
communicated to plaintiff that she owed a debt to Afni or DirecTV.
The only other communication to plaintiff's address is a letter
from
Afni
relating
that
the
account
had
been
disputed
as
fraudulently established and to call DirecTV to process such claim.
In addition, defendant made a fraud report to DirecTV.
Given
the evidence in the record, a trier of fact could only conclude
that defendant made no threats to plaintiff via letter or phone and
that once plaintiff disputed the debt by notifying defendant that
she was not the named debtor,
activity.
defendant ceased all collection
Accordingly, defendant is entitled to summary. judgment.
The court need not reach the bona fide error defense.
CONCLUSION
For the reasons stated above, Defendant's motion for summary
judgment (#16) is granted and this action is dismissed.
DATED this
ORDER - page 11
I~~
day of November, 2011.
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