Smith v. Moss Law Firm, P.C.

Decision Date06 February 2020
Docket NumberCivil Action No. 3:18-CV-2449-D
PartiesCHRISTOPHER SMITH, Plaintiff, v. MOSS LAW FIRM, P.C., Defendant.
CourtU.S. District Court — Northern District of Texas

In this action by plaintiff Christopher Smith ("Smith") asserting claims for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Texas Debt Collection Practices Act, Tex. Fin. Code Ann. §§ 392.001-.404 (West 2016) ("TDCPA"), defendant Moss Law Firm, P.C. ("Moss") moves for summary judgment. For the following reasons, the court denies the motion.


Moss is a law firm that exclusively represents creditors in suits to collect consumer debts.1 Before Moss files a collection suit, its employees are required to confirm the debtor's information, including his name and address for service, on at least two current, independent sources, to ensure that Moss attempts to collect the debt from the correct person at the mostrecent address. In cases where the debtor may have used an alias or alternative name, Moss employees are required to adhere to Moss's Procedure for Skipping Accounts for Suit ("Skiptracing Policy"), which states, in pertinent part:

If sources show an alternate or more complete name for the consumer other than what downloaded from the client, the account should be reviewed for possibly adding an "aka" to the field containing the consumer's name on the Debtor Tab, using these guidelines: . . . Only add when all sources show a different name other than that in CM[.]

D. App. 176.

In October 2017 Moss filed suit in Dallas County Justice Court on behalf of its client, Barclays Delaware Bank ("Barclays"), to collect a delinquent debt owed by Christopher O. Smith II ("Debtor"). Debtor is the son of plaintiff Smith. At all relevant times, Debtor resided with his parents on Sun Valley Drive2 in Dallas, Texas. Although the name "Christopher O Smith II" is reflected on the credit card account statement attached to the justice-court petition, the petition itself refers only to "Christopher O Smith." D. App. 91, 95.

On October 14 or October 15, 20173 a private process server served Smith with thejustice-court petition at his residence on Sun Valley Drive. Although Smith knew that he did not owe the debt at issue and "immediately recognized the lawsuit was for his son, who bore his exact name, but with the suffix 'II' attached," P. Br. 5, Smith accepted service.

On Monday, October 16, 2017 Smith's wife Demetrice contacted Moss to inform it that the collection suit had been improperly filed against her husband. She provided Smith's date of birth to the receptionist who answered her call, and gave his social security number to David Wright, Esquire ("Wright"), the Moss attorney with whom she spoke. Wright "verbally advised that [Moss] was not seeking to collect a debt from [Smith]," P. Br. 9, and informed Demetrice that she could either mail the petition and summons back to Moss or that Moss would have them picked up. Smith maintains that he did not return the documents to Moss because doing so would have "deprived him of the only proof of the suit and service on him." P. Br. 9.

Despite the alleged assurances from Moss that it was not seeking to collect a debt from Smith, Smith feared that a default judgment would nevertheless be entered against him. Consequently, Smith searched for and retained defense counsel. On October 30, 2017 a return of service was filed in the collection suit.4 Moss contends that during the process ofdetermining whether the petition should be served on Debtor at an address other than the Sun Valley address, it discovered, for the first time, an out-of-state address for Debtor. Because Moss does not file suit against debtors who live outside of Texas, it internally closed the account and filed a motion to nonsuit5 the collection action on November 7, 2017.

Smith then filed the instant lawsuit alleging claims against Moss for violations of the FDCPA and TDCPA. Moss moves for summary judgment. Smith opposes the motion.


When a party moves for summary judgment on claims on which the opposing party will bear the burden of proof at trial, the moving party can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support the nonmovant's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party does so, the nonmovant must go beyond his pleadings and designate specific facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant's failure to produce proof as to any essential element of a claim renders all other facts immaterial. See TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.).Summary judgment is mandatory if the nonmovant fails to meet this burden. Little, 37 F.3d at 1076.

For claims or defenses on which the moving party will bear the burden of proof at trial, to be entitled to summary judgment the movant "must establish 'beyond peradventure all of the essential elements of the claim or defense.'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) ( Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). This means that the movant must demonstrate that there are no genuine and material fact disputes and that it is entitled to summary judgment as a matter of law. See Martin v. Alamo Cmty. Coll. Dist., 353 F. 3d 409, 412 (5th Cir. 2003). "The court has noted that the 'beyond peradventure' standard is 'heavy.'" Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont'l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).


The court begins with Moss's argument that it is entitled to summary judgment because Smith lacks Article III standing.


The standing doctrine addresses the question of who may properly bring suit in federal court, and "is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on itsexercise." Warth v. Seldin, 422 U.S. 490, 498 (1975). To establish standing, a plaintiff must meet both constitutional and prudential requirements. See, e.g., Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001). Moss contends that Smith lacks constitutional standing,6 which requires that he establish that he "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547 (2016) (citing Defenders of Wildlife, 504 U.S. at 560). "The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements." Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).


Moss contends that it is entitled to summary judgment because "there is no issue of genuine fact as to whether Plaintiff can prove a causal link between Defendant's alleged violations and any alleged injury in fact or actual damages." D. Br. 14. Regarding Smith's FDCPA claim, Moss posits that Smith lacks standing because he cannot show an injury in fact that created a "real risk of harm" that is fairly traceable to an attempt by Moss to collect a debt from Smith, id. at 16; that Smith's acceptance of service of Barclay's justice court suit against Smith's debtor-son is not tantamount to a debt collection activity in violation of the FDCPA, and did not cause any damage or even a risk of harm to Smith; that any alleged risk of harm or injury to Smith resulted from his own irrational belief that Moss sought to collecta debt from him despite Moss's assurance that it was not seeking payment from Smith, and Moss's clear attempts to ensure collection efforts were not directed at Smith; and that "because Plaintiff was actually aware Defendant was not seeking to collect a debt from him, he cannot show a risk of real harm that is fairly traceable to Defendant's conduct by simply alleging Defendant attempted to collect a debt from him," id. at 17-18.

With respect to Smith's TDCPA claim, Moss maintains that only those who have sustained actual damages from a TDCPA violation have standing to sue; that Smith does not have evidence of any identifiable economic damages, mental anguish that meets the Texas standard, or attorney's fees and costs associated with the instant case; and that even if Smith could quantify his alleged damages, he cannot show a causal connection between Moss's alleged TDCPA violation and such damages.

Smith responds that the mere showing of a violation of the FDCPA sufficiently confers standing because it demonstrates that the consumer suffered a type of harm that Congress intended to protect against; that he has alleged numerous forms of actual damages, including loss of money and emotional damages; that the risk of harm created by Moss's FDCPA violation was material, because it could have resulted in a default judgment, which was stressful to Smith; that Smith incurred expenses in the amount of $1,000 in defending against the wrongful debt collection lawsuit; that Smith experienced emotional stress from managing the litigation; that "[t]he record shows that Plaintiff suffered actual damages in expending costs to hire an attorney, taking time away from work to find an attorney, including the severe distress from being wrongly sued and having his address and phonenumber publicly listed," P....

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