Lucero v. Bureau of Collection Recovery, Inc.

• Decision Date: 28 February 2012
• Docket Number: No. CIV 09-0532 JB/WDS,CIV 09-0532 JB/WDS
• Parties: RICHARD LUCERO, On behalf of himself and All others similarly situated, Plaintiff, v. BUREAU OF COLLECTION RECOVERY, INC., Defendant.
• Court: U.S. District Court — District of New Mexico

RICHARD LUCERO, On behalf of himself and

All others similarly situated, Plaintiff,

v.BUREAU OF COLLECTION RECOVERY, INC., Defendant.

No. CIV 09-0532 JB/WDS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: February 28, 2012

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendant Bureau of Collection Recovery Inc.'s Motion to Dismiss and Memorandum Brief in Support of its Motion to Dismiss or, Alternatively, Motion for Summary Judgment, filed December 21, 2009 (Doc. 34)("Motion"). The Court held a hearing on February 2, 2012. The primary issues are: (i) whether Plaintiff Richard Lucero can maintain a cause of action under the New Mexico Collection Agency Regulatory Act, N.M.S.A. 1978, §§ 61-18A-1 through 61-18A-32, ("Collection Agency Regulatory Act"); (ii) whether Lucero has established the existence of a genuine issue of material fact as to any of the theories upon which he bases his claim under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692a through 1692p, ("FDCPA"); and (iii) whether Defendant Bureau of Collection Recovery, Inc. ("BCR") has established that it is entitled to summary judgment based on the affirmative defense in N.M.S.A. 1978, § 61-18A-4(C). The Court will grant the Motion and enter summary judgment on all Lucero's claims. Because Lucero has conceded that he cannot maintain a cause of action under the Collection Agency Regulatory Act, the Court will grant the Motion on those grounds. The Court concludes that Lucero has not established the existence of a genuine issue ofmaterial fact as to his FDCPA claim on the following two theories: (i) violation of the general prohibition against misrepresentations contained in 15 U.S.C. § 1692e on the basis that BCR allegedly misrepresented it was authorized to collect debts; and (ii) violation of 15 U.S.C. § 1692e(10) on the basis that BCR used a false representation or deceptive means to collect debt, because it was not authorized to collect debt under state law. Additionally, the Court concludes that Lucero has not established the existence of a genuine issue of material fact as to his FDCPA theories under 15 U.S.C. §§ 1692e(5) and 1692f. The Court concludes entry of summary judgment is appropriate under the controlling law and authority. Lastly, because BCR has identified no New Mexico rule or regulation upon which it in good faith relied, and because a state law affirmative defense does not provide a defense to a federal cause of action, the Court will not grant summary judgment on that ground relating to BCR's affirmative defense under N.M.S.A. 1978, § 61-18A-4(C).

FACTUAL BACKGROUND

Lucero disputes some of BCR's asserted facts and includes some of his own asserted facts in his Response. See Plaintiff's Response to Defendant's Motion to Dismiss [Doc. 34], filed March 12, 2010 (Doc. 50)("Response"). In response to certain arguments BCR raises in the Defendant Bureau of Collection Recovery Inc.'s Reply in Support of its Motion to Dismiss, or Alternatively Motion for Summary Judgment, filed March 26, 2010 (Doc. 53)("Reply"), Lucero provides some additional asserted facts in his Plaintiff's Sur Reply to Defendant's Reply in Support of Motion to Dismiss, filed May 4, 2010 (Doc. 58)("Surreply"). BCR filed no written response to the Surreply and did not contest any of those asserted facts at any of the hearings, and those facts are thus deemed admitted. See D.N.M.LR-Civ. 56.1(b). Because the Court and the United States Court of Appeals for the Tenth Circuit have already addressed the parties' arguments regarding an offer of judgmentunder rule 68 of the Federal Rules of Civil Procedure, the Court will not set forth any of the parties' asserted facts relating to the offer of judgment BCR gave to Lucero. See Amended Memorandum Opinion and Order, filed May 6, 2010 (Doc. 60); Judgment at 1, filed April 22, 2011 (Doc. 67-2); Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239 (10th Cir. 2011).

BCR is in the business of debt collection and in general is considered a debt collector under 15 U.S.C. § 1692a(6). See Motion ¶ 1, at 3 (setting forth this fact); Class Action Complaint for Damages for Violation of the Fair Debt Collection Practices Act and the New Mexico Collection Agency Regulatory Act ¶ 4,at 2 (dated April 30, 2009), filed June 1, 2009 (Doc. 1-1)("Complaint")(admitting this fact). Lucero received two collection letters from BCR. See Motion ¶ 1, at 3 (setting forth this fact); Complaint ¶¶ 6-7, at 2 (admitting this fact). At all times relevant to the Complaint's allegations, BCR was a duly licensed collection agency in the State of New Mexico. See Motion ¶ 2, at 3 (setting forth this fact); Complaint ¶ 11, at 3 (admitting this fact); Affidavit of Bobbie J. Dunn ¶ 6, at 2 (executed December 4, 2009), filed December 21, 2009 (Doc. 34-1)("Dunn Aff."); Collection Agency License at 1 (dated August 6, 2009), filed December 21, 2009 (Doc. 34-2).¹ At all times relevant to the Complaint's allegations, Bobbie Dunn served as BCR's licensed manager in New Mexico as N.M.S.A. 1978, §§ 61-18A-8 and 61-18A-10 requires. See Motion ¶ 3, at 3 (setting forth this fact); Complaint ¶¶ 12-13, at 3 (admitting portions of this asserted fact); Dunn Aff. ¶ 4, at 1; Collection Agency Managers [sic] License at 1 (dated August 6,2009), filed December 21, 2009 (Doc. 34-3)("Current Manager's License"); Collection Agency Managers [sic] License at 1 (dated May 22, 2008), filed December 21 (2009)(Doc. 34-4)("Former Manager's License").²

At all times relevant to the allegations stated in the Complaint, Dunn's addresses on file with the New Mexico Regulation and Licensing Department ("NMRLD") were P.O. Box. 16035, Albuquerque, New Mexico, 8791-6035 and 9747 Village Green Drive, Albuquerque New Mexico. See Motion ¶ 4, at 4 (setting forth this fact); Complaint ¶¶ 15-6, at 3 (admitting this fact); Dunn Aff. ¶ 8, at 2; Former Manager's License at 2. As of July 10, 2009, Dunn changed her address; the current addresses she has on file with the NMRLD are P.O. Box 16035, Albuquerque, New Mexico 8791-6035 and 9131 Wimbledon Drive NE, Albuquerque New Mexico. See Motion ¶ 5, at 4 (setting forth this fact); Dunn Aff. ¶¶ 7-8, at 2; Current Manager's License at 1; Response at 1 (not disputing this fact). The Wimbledon Drive address and the Village Green Drive address are residential addresses. See Motion ¶ 6, at 4 (setting forth this fact); Complaint ¶ 16, at 4 (admitting portions of this fact); Dunn Aff. ¶ 10, at 2; Response at 1 (not disputing this fact). Dunn maintains a business license with the City of Albuquerque. See Motion ¶ 7, at 4 (setting forth this fact); Dunn Aff. ¶ 11, at 2; Business Registration Receipt at 1, filed December 21, 2009 (Doc. 34-5).³ It isdisputed whether Dunn maintained a "a bona fide office for BCR's collection activities from her home office at 9747 Village Green Drive, Albuquerque, New Mexico." Motion ¶ 8, at 4 (setting forth this fact).⁴ At all times relevant to the allegations in the Complaint, Dunn conspicuouslydisplayed her manager's license⁵ for BCR at her home office. See Motion ¶ 9, at 4 (setting forth this fact); Photograph of Bobbie Dunn's License Display at 1, filed December 21, 2009 (Doc. 34-6); Photograph of Bobbie Dunn's License Display at Her Home Office at 1, filed December 21, 2009 (Doc. 34-7); Response at 2 (not disputing this fact). Dunn had access to BCR's collection agency records at her home office if she made a request for the records with BCR; she sometimes received the records by electronic mail transmission following a request.⁶

The first time the New Mexico Financial Institutions Division received contact from BCR with questions concerning the interpretation of any provision of the Collection Agency Regulatory Act was in a telephone conversation which occurred on or about September 25, 2009. See Surreply ¶ 2, at 1-2 (setting forth this fact); Second Affidavit of Henry A. Vigil ¶¶ 1, 5-7, at 1-2 (executed April 30, 2010), filed May 4, 2010 (Doc. 58-1)("Second Vigil Aff."); Deposition of William Verant at 4:1-24 10:24-11:4, 12:9-16, 28:15-24 (dated April 29, 2010), filed May 4, 2010 (Doc. 58-2)(Verant Depo.").⁷ Other than the Collection Agency Regulatory Act and the regulations issued pursuant to that act, there are no internal memoranda, electronic mail transmissions, written communications, studies, inquiries, policy and procedure manuals or statements, rules and regulations, or any other documents related to or concerning the interpretation of the Collection Agency Regulatory Act. See Surreply ¶ 3, at 2 (setting forth this fact); Second Vigil Aff. ¶¶ 1-4, 8-9, at 1-2; Verant Depo. at 11:5-20, 12:2-5.⁸ The scope of duties that Henry Vigil, Industry Manager for the New Mexico Financial Institutions Division, had at the applicable time periods did not include the formulation of legal interpretations of the provisions of the Collection Agency Regulatory Act. See Surreply ¶ 4, at 2 (setting forth this fact); Verant Depo. at 12:17-20.⁹ Vigil worked at the NMRLD for approximately twenty-two and a half years. See Affidavit of Henry A. Vigil ¶ 8, at 2-3 (executed December 15, 2009), filed December 21, 2009 (Doc. 34-8)("Vigil Aff."). Vigil asserts that, when posed with a factual scenario mirroring BCR's maintenance of its New Mexico office, that BCR is in compliance with the Collection Agency Regulatory Act. See Vigil Aff. ¶¶ 7-8, at 2-3. According to William Verant, the director of the Financial Institutions Divisionof the NMRLD, it would be "problematic" for a licensed manager for a collection agency: (i) to maintain an office in a residence within a gated community; (ii) for that licensed manager to tell the debtor that their residence was not an office and refuse entrance into the office to the debtor; and (iii) for the licensed manager to have no knowledge of the debtor's debt. See Surreply ¶ 5, at 2 (setting forth this fact); Verant Depo. at 40:4-41:1.¹⁰ Verant also stated that not...