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Moore v. Express Recovery Services, Inc.

United States District Court, D. Utah, Northern Division

January 2, 2019

MITCHELL MOORE and ANTONIA MOORE, Plaintiffs,
v.
EXPRESS RECOVERY SERVICE, INC., Defendant.

          ORDER AND MEMORANDUM DECISION

          TENA CAMPBELL U.S. DISTRICT COURT JUDGE

         Plaintiffs Antonia and Mitchell Moore[1] allege that Defendant Express Recovery Service (ERS), a debt collection agency, violated the Fair Debt Collection Practices Act (FDCPA, or Act), 15 U.S.C. § 1692 et seq., when it sent a collection letter that failed to identify their original creditors, and instead used the generic term “Your Creditors.” The Moores and ERS have filed cross-motions for summary judgment. The Moores contend that ERS committed a material violation of the FDCPA. ERS contend that its failure to name the original creditors was too minor an error to violate the FDCPA. ERS also raises the bona fide error defense as an alternate grounds for summary judgment, contending that its violation was unintentional and made despite procedures designed to prevent such an error.

         For the reasons set forth below, the court finds that ERS committed a material violation of the FDCPA, but that disputed material facts preclude summary judgment on ERS' bona fide error defense.

         BACKGROUND

         This case arises from five outstanding medical bills that the Moores owed to two creditors-Utah Imaging Associates and the University of Utah Healthcare. Between 2011 and 2016, these creditors assigned the five accounts to ERS for collection. Utah Imaging Associates assigned the first account in 2011, and two additional accounts in 2013. University of Utah Healthcare assigned two additional accounts to ERS, both in Mitchell's name, in 2016.

         On June 16, 2016, Jackie Gutierrez, a collection specialist with ERS, called Antonia to discuss all five outstanding accounts. During the call, Ms. Gutierrez discovered that Antonia and Mitchell were married at the time Mitchell had incurred his debts with University of Utah Healthcare, so Ms. Gutierrez added Antonia as a responsible party on the two most recent accounts. On June 17, 2016, Ms. Gutierrez sent validation letters to Antonia for the two accounts, which named the original creditor (University of Utah Healthcare) and listed the amount owed on each of the two accounts (ERS had already sent similar validation letters to the Moores for the three older Utah Imaging Associate accounts in 2011 and 2013, shortly after they were assigned).

         The trouble occurred when, in addition to the two validation letters, Ms. Gutierrez also sent Antonia an “IQ letter” listing the total amount owed on the three older Utah Imaging Associates accounts. An IQ letter lists the total amount of all monies owed by a debtor, and is only to be sent when a debtor requests a payoff balance. And unlike validation letters, which name the original creditor, IQ letters tabulating multiple accounts will, by default, simply reference “Your Creditors.”[2]

         The Moores allege that ERS' IQ letter violates the FDCPA because it failed to identify the original creditor. ERS contends that the omission of the original creditor's name, while perhaps a technical violation of the FDCPA, is not a material violation because Ms. Gutierrez discussed all five outstanding accounts the day before she sent the IQ letter. ERS also contends that even if the omission is material, it was unintentional and resulted from a bona fide error.

         ANALYSIS

         I. Summary Judgment Standard

         Summary judgment is appropriate “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(a). A fact is “material” when, under the applicable substantive law, it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if the evidence might lead a reasonable jury to return a verdict for the nonmoving party. Id.

         “The movant bears the initial burden of proving that no genuine issues of material fact exist for trial.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Once the movant meets its burden, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (internal quotation omitted). In a case such as this, where both parties have filed cross-motions for summary judgment, the court must “must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor.” Fox v. TransAm Leasing, Inc., 839 F.3d 1209, 1213 (10th Cir. 2016) (internal quotation omitted).

         II. The Moores' FDCPA Claim

         The FDCPA prohibits a debt collector from, among other things, using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Section 1692e includes a nonexclusive list of sixteen practices that amount to violations, including “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or obtain information concerning a consumer.” Id. § 1692e(10). A debt collector can violate these provisions by misstating or failing to state the original creditor on a collection letter. See, e.g., Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 1121 (9th Cir. 2014); Isham v. Gurstel, Staloch & Chargo, P.A., 738 F.Supp.2d 986, 996 (D. Ariz. 2010); Heathman ...


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