[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13688 FEBRUARY 14, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:10-cv-20337-ASG
ISRAEL PONCE,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
BCA FINANCIAL SERVICES, INC.,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 14, 2012)
Before BARKETT, MARCUS and MARTIN, Circuit Judges.
PER CURIUM:
BCA Financial Services, Inc., (“BCA”), a company that specializes in the
collection of health care debt obligations, appeals from a final judgment awarding
Isreal Ponce $1000 in statutory damages on three claims brought under the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Ponce’s
claims stem from BCA’s attempt to collect an alleged unpaid medical debt in the
amount of $378.35.
On appeal, BCA argues that the district court erred in granting summary
judgment on Ponce’s claims that (1) BCA failed to send him written notice within
five days of BCA’s initial communication with him in violation of 15 U.S.C. §
1692g(a); (2) BCA’s representative, Iris Moreno, failed to state that she was
“confirming or correcting location information” concerning Ponce during her
telephone conversation with Ponce’s ex-wife in violation of 15 U.S.C. § 1692b(1);
and (3) Moreno falsely or misleadingly stated to Ponce that his insurance would
no longer take care of the medical debt in violation of 15 U.S.C. § 1692e. BCA
also argues that the district court erred in rejecting BCA’s bona fide error defense
as to each of these three claims. Finally, BCA argues that the district court’s
award of the maximum statutory damages of $1000 is too high given the de
minimus acts for which it was found liable.
We review the district court’s grant of summary judgment de novo.
FindWhat Investor Group v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir.
2011). We will affirm “when the evidence, viewed in the light most favorable to
the nonmoving party, presents no genuine issue of fact and compels judgment as a
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matter of law.” Swisher Intern., Inc. v. Schafer, 550 F.3d 1046, 1050 (11th Cir.
2008) (citing Fed. R. Civ. P. 56(a)). We find no reversible error.
The FDCPA requires that a debt collector must “[w]ithin five days after the
initial communication with a consumer . . . send the consumer a written notice”
containing specified information unless that information was already included in
the initial communication. 15 U.S.C. § 1692g(a). The district court concluded
that Moreno’s September 23, 2009 telephone call to Ponce was BCA’s “initial
communication” under 15 U.S.C. § 1692g(a). The court rejected BCA’s argument
that the letter BCA mailed to Ponce on November 18, 2008 constituted its “initial
communication” because it was sent to an address at which Ponce had not lived
for over eight months. While the plain language of the statute might not require
the debt collector to ensure actual receipt of the written notice, the plain language
does require the debt collector to send the written notice to a valid and proper
address where the consumer may actually receive it. We cannot say the district
court erred in determining that the September 2009 telephone call, and not the
November 18 letter, was the initial communication. Accordingly, we find no error
in the district court’s conclusion that Ponce’s claim under § 1692g is not barred by
the statute of limitations nor its conclusion that BCA violated § 1692g by not
sending written notice in accordance with § 1692g(a) within five days of
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Moreno’s telephone call to Ponce.
Next, the district court concluded that during her telephone call with
Ponce’s ex-wife, Moreno failed to comply with FDCPA’s mandatory requirement
that as a “debt collector communicating with any person other than [Ponce] for the
purpose of acquiring location information about [Ponce],” that she state that she
“is confirming or correcting location information concerning [Ponce].” 15 U.S.C.
§ 1692b. The district court rejected BCA’s argument that because Moreno was
not contacting a third-party in an attempt to track down Ponce that her telephone
call with Ponce’s ex-wife did not trigger § 1692b(1)’s requirements. The district
court noted that the undisputed transcript of the telephone call indicated that
Moreno asked Ponce’s ex-wife numerous times if she had a number where Moreno
could reach Ponce and that Moreno admitted that she never stated that she was
confirming or correcting Ponce’s location information. Accordingly, we see no
reversible error in the district court’s conclusion that BCA violated § 1692b(1).
The district court also concluded that Moreno’s statement to Ponce that
“sir, your insurance company will not go ahead and take care of this now,” in
response to Ponce’s question about why his health insurance did not pay the bill
violated’s FDCPA’s prohibition against the use of “false, deceptive, or misleading
representation or means in connection with the collection of any debt.” 15 U.S.C.
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§ 1692e(10). The district court rejected BCA’s argument that because it is not
disputed that no insurance company has paid the medical bill despite attempts by
the medical provider to obtain payment, Moreno’s statement was indeed true, and
therefore, cannot be deemed to have been false or misleading. The district court
noted that our circuit has evaluated FDCPA’s claims under the “least sophisticated
consumer” standard. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1175 (11th
Cir. 1985) (adopting the same standard for the FDCPA as that of the Federal Trade
Commission Act, which was meant to protect the public, including the “ignorant,
the unthinking, and the credulous”). Here, although Moreno based her statement
on her general experience about insurance claims, she had no particular
information to support her statement about Ponce’s insurance, and therefore, the
district court concluded that she based her statement on an assumption which was
meant to coax Ponce into paying the bill. We see no reversible error in the district
court’s conclusion that this statement would have been misleading to the least
sophisticated consumer and therefore violated § 1692e(10).
The district court also rejected BCA’s invocation of the bona fide error
defense on each of these three claims. To maintain the bona fide error defense, a
debt collector must show by a preponderance of the evidence that its violation “(1)
was not intentional; (2) was a bona fide error; and (3) occurred despite the
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maintenance of procedures reasonably adapted to avoid any such error.” Edwards
v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352–53 (11th Cir. 2009). All
three elements must be satisfied or the defense fails. Id. at 1353. Here, we find no
reversible error in the district court’s conclusion that BCA failed to meet its
burden by relying solely on its internal policies without any specific explanation
of how its errors were unintentional or how the policies were meant to protect
against such errors.
Finally, BCA argues that the district court erred in awarding Ponce the
maximum statutory damages of $1000 for its three violations of the FDCPA.
“Available remedies under the FDCPA include actual damages, the potential for
additional damages up to $1,000 subject to the Court’s discretion, and reasonable
costs and attorney’s fees.” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1190 (11th Cir. 2010). In determining the amount of damages to award, the
FDCPA instructs the district court to consider, “among other relevant factors—, . .
. the frequency and persistence of noncompliance by the debt collector, the nature
of such noncompliance, and the extent to which such noncompliance was
intentional.” 15 U.S.C. § 1692k(b)(1). Here, we cannot say that the district court
abused its discretion.
AFFIRMED.
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