[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15435 ELEVENTH CIRCUIT
JUNE 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-01935-CV-T-26-MSS
AHMET HEPSEN,
Plaintiff-Appellee,
versus
RESURGENT CAPITAL SERVICES, LP, et al.,
Defendants,
J.C. CHRISTENSEN AND ASSOCIATES, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 17, 2010)
Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
After a bench trial, Defendant-Appellant J.C. Christensen & Associates, Inc.
(“JCC”) appeals the district court’s denial of summary judgment and separate entry
of a $500 judgment in favor of Plaintiff Ahmet Hepsen on his claims under the Fair
Debt Collection Practices Act (the “FDCPA”). After review, we affirm.
I. BACKGROUND
This case involves a debt that appears to have begun life as a credit card debt
and was subsequently acquired at least twice by follow-on creditors. The last
creditor assigned the debt to a debt collection agency. That debt collection agency
sent the debt to Defendant JCC, also a debt collection agency, which demanded
payment from Hepsen. Hepsen claims JCC violated the FDCPA by naming the
wrong creditor and wrong debt amount.
A. JCC’s Collection Activities
On October 26, 2006, Defendant JCC received an account to collect from its
client Resurgent Capital Services (“Resurgent”). Resurgent initially sent a first
collection amount of $2,024.17, representing the purported principal balance.
Later the same day, Resurgent sent an adjustment in the amount of $664.01,
denoted an “interest adjustment,” for a total debt of $2,679.18. JCC’s tracking
records for the debt show that JCC’s “client” was Resurgent and the debt was sent
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“Regarding: PROVIDIAN NATIONAL B.”
Defendant JCC acts as a debt-collection conduit for its clients. JCC’s policy
is to send a demand letter to the debtor listing JCC’s client as the “creditor.” JCC
maintains policies and procedures for reporting debt disputes to its clients and
instructing employees on how to handle dispute and verification requirements of
the FDCPA, including a two-week training program for new employees. JCC
maintains an electronic record of collection activity and uses daily and monthly
monitoring to evaluate compliance with the FDCPA. JCC uses a system called
Artiva to verify totals and agreement of electronic information provided by its
clients.
Defendant JCC however does not independently verify the existence or
amount of debt received from its clients. JCC’s compliance director testified that
JCC has no way of knowing whether the initial information it receives from its
clients is correct. JCC’s prior dealings with Resurgent indicated that money
collected on Resurgent’s behalf was, in fact, owed to another entity called LVNV
Funding LLC.
On October 27, 2006, Defendant JCC mailed a demand letter to Hepsen.
The letter lists “RESURGENT CAPITAL SERVICES” as the “CREDITOR(S)”
and states the full amount owed is “$2,679.18.” The JCC letter offers Hepsen the
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option of paying off the debt in full as a lump sum of $1,071.67. The JCC letter
also contains this notification about the validity of the debt:
Unless you notify this office within thirty days after
receiving this notice that you dispute the validity of this
debt or any portion thereof, this office will assume the
debt is valid. If you so notify this office in writing within
30 days from receiving this notice that you dispute the
validity of this debt or any portion thereof, this office
will: obtain verification of the debt or obtain a copy of a
judgment, if any, and mail you a copy of such judgment
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 creditor.
On November 16, 2006, Hepsen wrote a letter to JCC stating that he “never
had an account with Resurgent Capital Services” and never dealt with JCC, and
requesting documents verifying his responsibility for the debt and a copy of the
request or other document showing that JCC received a referral for the debt from
another firm. Hepsen did not specifically dispute the amount of debt owed or
request the name of the original creditor.
Defendant JCC received Hepsen’s dispute letter on November 21, 2006.
JCC recorded Hepsen’s account as “disputed” in its internal log and ceased all
collection activity on Hepsen’s account. On November 30, 2006, JCC forwarded
Hepsen’s dispute letter to Resurgent for validation of the debt. JCC never again
contacted Hepsen. JCC did not receive a response or debt validation from
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Resurgent. On December 8, 2006, Defendant JCC closed Hepsen’s account and
returned the debt to Resurgent.
On December 21, 2006, Resurgent sent a demand letter to Hepsen
purporting to validate the debt and demanding that Hepsen pay a total debt of
$1,955.30, reflecting a principal balance of $1,369.16 and accrued interest. The
letter lists the “CURRENT CREDITOR” as LVNV Funding LLC and the
“PREVIOUS CREDITOR” as OSI/Gulf State Credit and identifies Resurgent as a
“professional debt collector.” It also states: “The account of AHMET HEPSEN
acquired from OSI/Gulf State Credit is now owned by LVNV Funding LLC.”
B. Hepsen’s Lawsuit
On October 25, 2007, Hepsen filed this action against Defendant JCC.1
Hepsen’s two-count complaint alleges violations of the FDCPA through JCC’s
false representation of the amount of the debt owed, 15 U.S.C. § 1692e(2)(A), and
of the creditor of the debt, 15 U.S.C. § 1692e(10), and violations of the Florida
Consumer Collection Practices Act (“FCCPA”). Fla. Stat. § 559.72(9).
Both parties moved for summary judgment. JCC sought summary judgment
based on, inter alia, the “bona fide error” defense. Hepsen moved for summary
1
Originally, Hepsen also sued Resurgent, LVNV Funding LLC, and an individual.
Hepsen subsequently dismissed Resurgent and LVNV and receded from his claims against the
individual, leaving JCC the sole defendant.
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judgment on his FDCPA claims and argued that the “bona fide error” defense did
not apply to JCC.2
The district court denied both summary judgment motions. The district
court determined that factual disputes existed over whether JCC demanded the
correct amount of debt or maintained adequate procedures designed to avoid
FDCPA violations. The district court also found a fact issue over whether JCC
intentionally mis-named Hepsen’s creditor.
C. Bench Trial
The parties proceeded to a bench trial, at which Hepsen and two JCC
employees testified. After issuing findings of fact, the magistrate judge concluded:
(1) that JCC’s demand letter incorrectly stated the amount owed by Hepsen and
mis-identified the name of Hepsen’s creditor; and (2) that JCC was not entitled to
the bona fide error defense because it was unable to show it “maintained
procedures reasonably adapted to avoid misstating the amount of debt in its
demand letter to Plaintiff.” The district court imposed $250.00 in damages for
2
Hepsen also moved to amend his complaint to add a claim under a different subsection
of the state-law FCCPA. The district court denied this amendment. Hepsen subsequently filed
notice that he was receding from that additional FCCPA claim. In its summary judgment order,
the district court noted that Hepsen effectively was pursuing only his FDCPA claims, and the
action proceeded on those FDCPA claims alone. Hepsen does not challenge those rulings or
argue that state-law claims remain in the case, and thus we address only his federal FDCPA
claims.
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each violation of the FDCPA, for a total of $500.00.3
Defendant JCC filed this timely appeal.4
II. DISCUSSION
A. Summary Judgment Errors
Defendant JCC argues the district court erred in finding genuine issues of
material fact as to whether the account balance in JCC’s demand letter to Hepsen
was inaccurate and in concluding that JCC was not entitled to the FDCPA’s “bona
fide error” defense. Upon de novo review, we affirm.5
“The [FDCPA, 15 U.S.C. §§ 1692 et seq.] provides a civil cause of action
against any debt collector who fails to comply with the requirements of the Act . . .
. ” Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352 (11th Cir.
2009). The FDCPA generally prohibits debt collectors from using “any false,
deceptive, or misleading representation or means in connection with the collection
of any debt,” 15 U.S.C. § 1692e, and the use of “unfair or unconscionable means to
3
The FDCPA provides that an individual plaintiff can receive actual damages, statutory
damages up to $1,000, costs, and reasonable attorney’s fees. Edwards v. Niagara Credit
Solutions, Inc., 584 F.3d 1350, 1352 (11th Cir. 2009) (citing 15 U.S.C. § 1692k(a)(1)-(3)).
4
Hepsen does not appeal the district court’s denial of his summary judgment motion.
5
We review a district court’s denial of summary judgment de novo, taking all evidence in
the light most favorable to the non-movant. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.
2002). Summary judgment is appropriate if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Galvez v. Bruce, 552 F.3d 1238, 1241
(11th Cir. 2008).
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collect or attempt to collect any debt.” Id. § 1692f. “The FDCPA does not
ordinarily require proof of intentional violation and, as a result, is described by
some as a strict liability statute.” LeBlanc v. Unifund CCR Partners, 601 F.3d
1185, 1190 (11th Cir. 2010) (citing 15 U.S.C. § 1692k; Ellis v. Solomon and
Solomon, P.C., 591 F.3d 130, 135 (2d Cir. 2010)).
JCC first asserts the district court erred in finding genuine issues of material
fact over whether its demand letter to Hepsen stated an inaccurate debt balance, in
violation of §§ 1692e(2)(A) and 1692e(10). Section 1692e(2)(A) prohibits “false
representation of . . . the character, amount, or legal status of any debt.” 15 U.S.C.
§ 1692(e)(2)(A). Section 1692e(10) similarly prohibits “[t]he use of any false
representation or deceptive means to collect or attempt to collect any debt or to
obtain information concerning a consumer.” Id. § 1692e(10). We analyze the
FDCPA by beginning with the language of the statute itself. Hawthorne v. Mac
Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). We use a “least-
sophisticated consumer” standard to consider whether a debt collector’s
communication violates § 1692e, presuming that the “least-sophisticated
consumer” possesses a rudimentary amount of information about the world and a
willingness to read a collection notice with some care. LeBlanc, 601 F.3d at 1194.
At the summary judgment stage, the evidence before the district court was
8
that JCC demanded its initial amount of $2,679.18 without verifying the existence
or amount of the debt, that JCC was unable to verify the debt after Hepsen disputed
it, and that when Resurgent later responded to Hepsen’s dispute, it demanded
$1,955.30, an amount different from JCC’s initial demand. The record before the
district court on summary judgment did not indisputably establish the correct debt
actually owed by Hepsen, even if that number can be ascertained. Rather, the
district court was presented with differing factual accounts of Hepsen’s debt. The
district court thus did not err in denying JCC’s summary judgment motion because
JCC had not shown undisputed evidence that its demand letter stated the accurate
debt amount.
Defendant JCC also argues the district court’s ruling was erroneous because
the FDCPA does not require a debt collector to verify debts from its clients before
sending a demand to a debtor. JCC is correct in part. Under § 1692g(b), if a
consumer notifies the debt collector in writing of a dispute within 30 days of
receiving the demand notice, “the debt collector shall cease collection of the debt . .
. until the debt collector obtains verification of the debt . . . , or the name and
address of the original creditor, and a copy of such verification . . . , or name and
address of the original creditor, is mailed to the consumer by the debt collector.”
15 U.S.C. § 1692g(b). Thus a debt collector is not required to take some other
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affirmative step if the consumer disputes the debt. Shimek v. Weissman, Nowack,
Curry & Wilco, P.C., 374 F.3d 1011, 1014 (11th Cir. 2004). The plain language of
§ 1692g(b) requires only that a debt collector cease collection of the debt if it is
disputed, unless the debt collector verifies the debt or the name and address of the
original creditor and mails that information to the debtor. JCC did this. But §
1692g(b) does not modify the previous section of the FDCPA, § 1692e, prohibiting
a debt collector from attempting to collect an inaccurate debt, so JCC still could be
liable for sending the demand letter to Hepsen even if the FDCPA does not
explicitly require that JCC verify the debt before sending a demand.
However, the FDCPA provides defendants with a “bona fide error” defense,
insulating debt collectors from liability even when they have failed to comply with
the Act’s strict requirements. Edwards, 584 F.3d at 1352. The bona fide error
defense provides: “A debt collector may not be held liable . . . if the debt collector
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.” 15 U.S.C. § 1692k(c).
A defendant asserting the bona fide error defense must show its violation of
the FDCPA: (1) was unintentional; (2) was a “bona fide” error; and (3) occurred
despite the existence of procedures reasonably adapted to avoid violations of the
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FDCPA. Edwards, 584 F.3d at 1353. A panel of this Court previously defined
“bona fide error” as an error “‘made in good faith[, from] a genuine mistake, as
opposed to a contrived mistake.’” Id. at 1353 (quoting Kort v. Diversified
Collection Servs., Inc., 394 F.3d 530, 538 (7th Cir. 2005)). “To be considered a
bona fide error, the debt collector’s mistake must be objectively reasonable.” Id.
JCC argues it satisfied the requirements of the bona fide error defense. We
agree with the district court that genuine disputes of material fact existed over
whether JCC satisfied the defense. Even if JCC satisfied the first two elements of
the bona fide error defense (that its violation was unintentional and resulted from a
“bona fide” error), JCC also had to show undisputed evidence that it maintained
procedures reasonably adapted to avoid violations of the FDCPA. Edwards, 584
F.3d at 1353. JCC maintained procedures to check numerical errors of the debts it
received from its clients, but JCC had no procedures in place to verify that debts
were, in fact, accurate. JCC did not contact Resurgent to verify that the debt
existed before sending its demand letter to Hepsen. The district court correctly
found at the summary judgment stage that JCC had not shown undisputed evidence
that its procedures were reasonably adapted to avoid violating the FDCPA.
B. Trial Errors
Defendant JCC next argues that the district court erred in entering judgment
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against JCC, for two reasons: (1) the district court’s fact finding that the debt
balance in JCC’s demand letter to Hepsen was inaccurate is not supported by the
trial evidence; and (2) the district court wrongly concluded that JCC was not
entitled to the bona fide error defense.6
We reject JCC’s argument that Hepsen failed to present evidence that the
account balance in JCC’s demand letter was inaccurate. At trial, Hepsen testified,
as did JCC’s compliance manager and one of Resurgent’s legal analysts. The trial
testimony was consistent with the evidence presented at the summary judgment
stage. Resurgent’s legal analyst testified that Resurgent sometimes demands less
than the full amount of debt owed, that its demand of $1,955.30 from Hepsen
reflected a decision to demand less than the full interest owed on the debt, and that
$1,369.16 was the principal originally acquired by LVNV from OSI/Gulf State
Credit. JCC was aware of Resurgent’s practice of demanding less than the full
amount of interest.
The evidence at trial showed that the amount demanded by JCC was
reflected in Resurgent’s referral balance of a principal of $2,024.17 and $655.01 in
6
We review a district court’s judgment from a bench trial applying de novo review to the
district court’s conclusions of law and clear error review to the district court’s findings of fact.
HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir. 2005). “[W]e may
reverse the district court’s findings of fact if, after viewing all the evidence, we are ‘left with the
definite and firm conviction that a mistake has been committed.’” Id. (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)).
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interest, for a total debt of $2,679.18. However, at the time LVNV acquired
Hepsen’s debt from OSI/Gulf State Credit, the original principal balance was
$1,369.16. Resurgent later demanded $1,955.30 from Hepsen, reflecting the
original principal balance plus a discounted amount of accrued interest. This
difference between the amount demanded by JCC and the amount later demanded
by Resurgent, on behalf of the creditor LVNV, supports a reasonable inference that
JCC’s demand was inaccurate. Thus, the district court’s finding of fact that JCC
incorrectly stated the debt in its demand letter is supported by sufficient evidence.
We also find no error in the district court’s legal conclusion that JCC’s
demand letter violated the FDCPA. The facts, as found by the district court, show
the actual amount of debt held by Resurgent at the time of its transfer to JCC was a
total of $1,369.16 plus accrued interest, not the $2,024.17 plus interest demanded
by JCC. That finding is supported by the evidence presented at trial and is not
clearly erroneous. The district court’s conclusion that JCC violated the FDCPA
through this inaccurate demand, even if unintentionally, is not in error.
The essence of JCC’s argument on appeal is that it should be entitled to the
bona fide error defense as to both the amount of debt and the identity of the
creditor. The district court concluded that JCC’s errors were not “bona fide”
because its practice of naming its client as the “creditor,” even when it had
13
information suggesting the debt may be owed to other entities, was not reasonable.
The district court also concluded that JCC did not show it maintained adequate
procedural safeguards designed to prevent inaccuracies.
JCC has not shown reversible error in the district court’s conclusion that
JCC did not satisfy the requirements of the bona fide error defense. JCC’s
misstatements to Hepsen appear to have been unintentional, entitling JCC to the
bona fide error defense if its mistakes were objectively reasonable and occurred
despite the existence of adequate procedures to avoid mistakes. As did the district
court, we conclude JCC’s practice of naming its client as the “creditor” was not an
objectively reasonable mistake. JCC knew from its prior dealings with Resurgent
that money demanded by Resurgent actually was owed to LVNV Funding LLC,
and JCC was aware that Hepsen’s debt to Resurgent was related to an account with
Providian National Bank. JCC’s practice of identifying Resurgent as the “creditor”
did not apprize Hepsen of other information about his debt of which JCC was
aware.
JCC also did not maintain adequate procedures reasonably adapted to avoid
violations of the FDCPA. JCC’s policy was to take information directly from its
clients, error-check that information using a computer program designed to catch
mathematical irregularities (but not unverified debts), and forward that information
14
to debtors for collection. JCC did not establish that its policies guard against
collection of inaccurate debts, because it had no policy in place to verify the
existence or amount of debts before sending demand notices. JCC correctly notes
that the FDCPA does not impose an affirmative obligation on debt collectors to
independently verify debts, but that lack of affirmative obligation does not also
protect a debt collector who attempts to collect an inaccurate debt. JCC has not
shown its procedures were reasonably adapted to avoid violating the FDCPA and
thus has not satisfied the requirements for the bona fide error defense.
C. Rule 50 Error
JCC’s final argument is that the district court erred in denying JCC’s Rule
50 motion for a directed verdict because Hepsen did not establish his debt was a
“consumer debt” entitled to the protections of the FDCPA. See Fed. R. Civ. P. 50.
As the Court has explained and as Rule 50 clearly states, a Rule 50 motion applies
only in civil cases tried to a jury. Falanga v. State Bar of Ga., 150 F.3d 1333, 1338
n.12 (11th Cir. 1998); Fed. R. Civ. P. 50(a)(1).7 Thus, Rule 50 does not apply here.
7
In any event, JCC’s Rule 50 motion had no merit. The FDCPA applies solely to debts
arising from “consumer transactions,” Hawthorne, 140 F.3d at 1371, which the FDCPA defines
as “any obligation or alleged obligation 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). The district court determined that Hepsen had
shown his debt was a “consumer” debt because it was related to a Providian National Bank credit
card in his name, connected to his home address, and not used for business. JCC did not rebut
this evidence.
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AFFIRMED.
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