Frey v. Gangwish

• Decision Date: 21 July 1992
• Docket Number: No. 91-5616,91-5616
• Citation: 970 F.2d 1516
• Parties: Vicki FREY, Plaintiff-Appellant, v. Richard J. GANGWISH II, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1516

970 F.2d 1516

Vicki FREY, Plaintiff-Appellant, v. Richard J. GANGWISH II, Defendant-Appellee.

No. 91-5616.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 19, 1992.

Decided July 21, 1992.

David S. Sprawls (argued and briefed), Louisville, Ky., for plaintiff-appellant.

Richard J. Gangwish, II (argued and briefed), Erlanger, Ky., for defendant-appellee.

Before: RYAN and SUHRHEINRICH, Circuit Judges; and CHURCHILL, Senior District Judge. ^*

JAMES L. RYAN, Circuit Judge.

This is a debt collection dispute which has become a federal case. The plaintiff, Vicki Frey, appeals from the district court's order of summary judgment for the defendant, Richard J. Gangwish, II. Frey, the original debtor, alleges that Gangwish, the creditor's attorney, violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692g(a) and 1692e(11), entitling her to an award of actual damages, statutory damages, costs and attorney's fees under 15 U.S.C. § 1692k(a).

We are required to decide whether the notice and disclosure requirements of 15 U.S.C. §§ 1692g(a) and 1692e(11) are required in a letter sent by a debt collector in response to a consumer's failure to make payments as provided in a stipulated judgment. The district court concluded that they were not and granted summary judgment to the defendant. We disagree and therefore reverse the decision of the district court and remand the case for further proceedings.

I.

Frey incurred a consumer debt to J.C. Penney Company, which she failed to pay. Through its attorney, Richard J. Gangwish, who is the defendant in this case, J.C. Penney initiated a suit to collect the debt. Frey retained the services of an attorney, who negotiated an agreed judgment with J.C. Penney. That judgment was entered in the Jefferson District Court in Kentucky and provided for satisfaction of the debt through monthly payments of twenty dollars.

Frey made regular payments under the judgment from August 1988 until May 1989. She made no further payments in 1989, however, and made only two in 1990. In response to Frey's failure to comply with the terms of the judgment, Gangwish sent her the following letter, advising her of the legal action that could be taken against her:

Even though this office obtained a Judgment in favor of J.C. Penney Company, Inc. against you in the JEFFERSON DISTRICT Court on June 28, 1988, our records show that you still owe $354.84 on that judgment, plus court costs, and interest which is added every day at 12% per year. At that rate, $500 would grow to $800 in a little less than five years.

Under Kentucky law, a judgment is good for up to fifteen years. That means that we have up to fifteen years from June 28, 1988 to garnish wages from any job you have, to attach any monies you might have in any bank account, or to file a foreclosure on any real estate you might own. Needless to say, fifteen years is a long time.

Our office practice is to re-check employment every year to see if we can issue a garnishment. Even though you may not be working now, we will re-check every year for fifteen years after June 28, 1988 to find out if we can issue a garnishment.

Naturally, it is in your best interest, and ours, to pay this judgment off as soon as possible. If you would like to make periodic payment arrangements, please call us immediately.

Frey ultimately responded to this letter by filing this lawsuit, alleging that Gangwish's letter violated sections 1692g(a) and 1692e(11) of the FDCPA. The district court referred the case to a magistrate judge, who entered findings of fact and conclusions of law and recommended that Gangwish be granted summary judgment and that Frey's motion for partial judgment be denied. Frey filed exceptions and Gangwish responded. The district court entered judgment following the recommendations of the magistrate judge. Frey appeals.

II.

Our review of a grant of summary judgment is de novo. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). We therefore apply the same standard as applied by the district court. Under Fed.R.Civ.P. 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This appeal does not involve any factual disputes but concerns solely the district court's conclusions of law regarding the applicability of the FDCPA to Gangwish's conduct in this case.

The Fair Debt Collection Practices Act was enacted in 1977 in response to public perception of the use of unfair and abusive debt collection practices by many debt collectors. The statutory purpose of the act is set forth in 15 U.S.C. § 1692(e):

It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

To achieve this broad remedial purpose, the statute makes violators of its provisions liable for actual damages, statutory damages, costs, and attorney's fees. 15 U.S.C. § 1692k.

Frey argues that Gangwish's post-judgment letter violated two sections of the FDCPA, 15 U.S.C. §§ 1692g(a) and 1692e(11). Gangwish concedes that his letter did not make the disclosures or contain the information required by these sections. He argues, however, that neither section applies to his letter. The district court agreed and granted him summary judgment. We conclude that the letter violated both sections. We address the applicability of each section in turn below.

A.

Section 1692g(a)

The language of Section 1692g(a) provides in relevant part:

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....

* * * * * *

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) 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....

15 U.S.C. § 1692g(a).

Although Gangwish had prior communications with Frey's attorney, his post-judgment letter was his first communication with Frey. In addition, the letter was "in connection with the collection of [a] debt." Although the letter was sent to collect on a judgment, the act defines debt to include any obligation, "whether or not such obligation has been reduced to judgment." 15 U.S.C. § 1692a(5). Gangwish's failure to provide validation notice therefore violated this section of the act.

Gangwish offers three reasons why this section should not be applied to his post-judgment letter. First, he suggests that this section does not apply to post-judgment communications with the debtor. Second, he contends that even if the literal language of this section can be construed to apply to his post-judgment letter, the purpose of the section is not furthered by its application to these facts. Finally, he maintains that application of the statute in this case would work a severe injustice upon him. Although there is much common-sense appeal in what Gangwish argues, we, like Gangwish, are bound by the plain language of the act.

By its terms, section 1692g applies to "the initial communication with a consumer in connection with the collection of any debt." It does not distinguish between initial communications that precede judgments and those that follow judgments. Indeed, in spelling out the notice requirements for initial communications, it assumes that an initial communication may follow the entry of a judgment by requiring in subsection (a)(4) that initial communications contain

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....

15 U.S.C. § 1692g(a)(4). If this section applied only to pre-judgment communications, it would not require that an initial communication inform the debtor that if she disputes the debt, a copy of any judgment against her involving that debt will be obtained and sent to her. This section therefore clearly applies to initial communications that follow the entry of a judgment.

Gangwish's second argument is that application of this section to the facts of this case does not further the section's purpose of providing validation notice of a debt. The apparent purpose of providing validation notice is to inform the consumer debtor that he is entitled to verification of a debt's validity. In this case, Frey obviously knew that her debt to J.C. Penney was valid. Through her attorney, she negotiated and entered an agreed judgment. She even made payments to the creditor under the terms of that judgment. Gangwish concludes that at this stage of their transactions, there was simply no need for validation notice.

We find this argument unavailing for two reasons. First, the statute requires validation notice in an initial communication with the debtor, regardless of whether validation notice is needed or not. Second, even if Frey knew that the debt was...