Stadler v. Devito

• Decision Date: 27 December 1996
• Docket Number: No. 95CA2146,95CA2146
• Citation: 931 P.2d 573
• Parties: 20 Colorado Journal 1941 Yonoea STADLER, Plaintiff-Appellant, v. Steven Henry DEVITO, Custom Credit, Inc., Sunny Frazen, and Michelle Martin, Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 573

931 P.2d 573

20 Colorado Journal 1941

Yonoea STADLER, Plaintiff-Appellant, v. Steven Henry DEVITO, Custom Credit, Inc., Sunny Frazen, and Michelle Martin, Defendants-Appellees.

No. 95CA2146.

Colorado Court of Appeals Div. I.

Dec. 27, 1996.

Vincent C. Todd, Lakewood, for Plaintiff-Appellant.

Steven Henry Devito, Littleton, for Defendants-Appellees.

Opinion by Judge ROY.

In this proceeding under the Fair Debt Collection Practices Act, plaintiff, Yonoea Stadler, appeals from a directed verdict entered against her and in favor of defendants, Custom Credit, Inc. (CCI), Steven H. Devito, Sunny Frazen, and Michelle Martin, employees and counsel for CCI. We reverse and remand for a new trial.

The underlying transaction, as nearly as we can determine from the record, was generally as follows. On August 27, 1991, plaintiff issued her personal check in the amount of $9.65 for the purchase of a home-delivered pizza. Plaintiff's bank, in error, refused to honor the check.

Upon being informed that the check had not been honored, plaintiff notified both the pizza vendor and the bank. The bank, thereupon, issued its cashier's check to the pizza vendor, but that check was never cashed.

Thereafter, plaintiff was contacted by the then holder of the original check, which demanded $51.94 for the check, penalties, and costs. The bank issued a second cashier's check, this one payable to that holder, who is not a party to this appeal, for the amount it demanded.

Subsequently, CCI sent plaintiff a demand letter by certified mail pursuant to §§ 13-21-109(3) and 13-21-109(4), C.R.S. (1996 Cum.Supp.). That demand letter was addressed to the address printed on the original check, but plaintiff had moved from that address a few months before she wrote the check.

The certified demand letter was returned to CCI, stamped "unknown." It is undisputed that CCI did not attempt to find a current address for plaintiff, or personally to serve plaintiff with the written demand letter.

Approximately seven months later, CCI brought an action in county court for $100, plus fees and costs for a total of $250. Default judgment was entered, garnishment was issued to the bank and plaintiff's checking account was charged. A motion to set aside the default was filed, and the action was dismissed at the request of CCI and the garnishment was released. Plaintiff testified she was not aware of the collection action until she was notified of the garnishment.

Plaintiff then brought this suit against defendants alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., (1994) and the Colorado Fair Debt Collection Practices Act, § 12-14-101, et seq., C.R.S. (1991 Repl.Vol. 5A) (Act). After plaintiff presented her case-in-chief, defendants moved for, and were granted, a directed verdict, with the court finding that the defendants had complied with the Act, most particularly the notice requirements. Plaintiff's claims pursuant to the federal act were derivative of her claim pursuant to the Act, and were likewise dismissed. This appeal followed.

I.

Plaintiff contends that the trial court erred in finding that she had not met her burden of presenting a prima facie case that defendants had violated the Colorado Fair Debt Collection Practices Act. We agree.

Specifically, we agree with plaintiff that the trial court erred in finding that a letter returned as "unknown" was not "returned as undeliverable" under § 13-21-109(3).

Section 13-21-109, C.R.S. (1996 Cum.Supp.) outlines the method for recovery of damages for checks not paid upon presentment. Under the statute, a collection agency may collect an amount equal to the face amount of the check and, as costs of collection, twenty percent of the face amount of the check, but not less than twenty dollars. Section 13-21-109(1)(b)(II), C.R.S. (1996 Cum.Supp.).

If proper notice is given and the collection agency does not receive proper payment within fifteen days, it may seek treble the face amount of the check, but not less than $100. Section 13-21-109(2), C.R.S. (1996 Cum.Supp.).

The notice required before the holder of the dishonored check can collect treble damages is defined as follows:

Notice that a check ... has not been paid upon presentment shall be in writing and given in person and receipted for, or by personal service, or by depositing the notice by certified mail, return receipt requested and postage prepaid, in the United States mail and addressed to such person at his most recent address known to the sender. If the notice is mailed and not returned as undeliverable by the United States postal service, notice shall be conclusively presumed to have been given on the date of mailing. For the purpose of this subsection (3), 'undeliverable' does not include unclaimed or refused.

Section 13-21-109(3), C.R.S. (1996 Cum.Supp.) (emphasis added).

In her case-in-chief, plaintiff presented evidence that the statutory demand letter had been returned to CCI, stamped "unknown," and that CCI had not sent her any other written notice, nor had it personally served her with the notice. CCI has admitted that no further written notice was given. CCI did, however, proceed to file a complaint against plaintiff in county court under the treble damages provision, § 13-21-109(2).

We construe statutes in a manner to further the intent of the General Assembly. Lakeview Associates, Ltd. v. Maes, 907 P.2d 580 (Colo.1995).

To discern intent, we first look to the language of the statute itself. As to that language, words and phrases should be given their plain, ordinary meaning. And, we presume that the General Assembly understands the import of the words it uses, and if the statutory language is unambiguous, we do not need to resort to other interpretive rules of construction. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo.1995).

Here, the trial court made the following findings:

The statute provides that the notice is conclusively presumed to be given unless it is returned as undeliverable. It says undeliverable does not include unclaimed or refused. Undeliverable is not further defined that I can determine and it appears that undeliverable would mean that if it was an insufficient address by which the post office could find a location to deliver.

In...