Turner v. J.V.D.B. & Associates, Inc., No. 02-3511.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtManion
Citation330 F.3d 991
PartiesStephen P. TURNER, Plaintiff-Appellant, v. J.V.D.B. & ASSOCIATES, INC., an Illinois Corporation, Defendant-Appellee.
Decision Date04 June 2003
Docket NumberNo. 02-3511.
330 F.3d 991
Stephen P. TURNER, Plaintiff-Appellant,
v.
J.V.D.B. & ASSOCIATES, INC., an Illinois Corporation, Defendant-Appellee.
No. 02-3511.
United States Court of Appeals, Seventh Circuit.
Argued April 11, 2003.
Decided June 4, 2003.
Rehearing Denied July 9, 2003.

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COPYRIGHT MATERIAL OMITTED

Page 993

David J. Philipps (argued), Gomolinski & Philipps, Hickory Hills, IL, for Plaintiff-Appellant.

Paul D. Lawent (argued), Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, MANION, and DIANE P. WOOD, Circuit Judges.

MANION, Circuit Judge.


Stephen P. Turner sued a debt collector, J.V.D.B. & Associates, Incorporated, alleging that J.V.D.B. violated the Fair Debt

Page 994

Collection Practices Act, 15 U.S.C. §§ 1692e and f, by attempting to collect a $97.80 debt that had been discharged in bankruptcy. The district court granted summary judgment to J.V.D.B. on the ground that the debt collector was unaware of Turner's bankruptcy as a matter of law. For the reasons set forth below, we reverse and remand as to § 1692e and affirm as to § 1692f.

I.

Stephen P. Turner's $97.80 debt to Pre-Paid Local Access Phone Service Company was discharged in bankruptcy, and Pre-Paid received notice of the discharge on March 22, 2000 and July 5, 2000. By July 2000, Turner's bankruptcy was listed on his credit reports, as maintained by credit reporting agencies. At some point Pre-Paid turned the claim over to a debt collector, J.V.D.B. & Associates, Incorporated (J.V.D.B.), which sent a collection letter to Turner dated March 29, 2001. That letter was printed on J.V.D.B.'s letterhead, stated at the top that the account balance due to Pre-Paid was $97.80, and contained the following text:

This is an attempt to collect a debt and any information used will be obtained for that purpose.

The above claim has been referred to this office for collection.

Pursuant to Public Law 95-109, Unless [sic] you notify us within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume that the debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

 Very truly yours,
                 J.V.D.B. & Associates, Inc.
                 Collection Agency
                

Turner did not respond directly to the letter. Rather, he forwarded it to his attorney, who then brought suit under 15 U.S.C. §§ 1692e and f of the Fair Debt Collection Practices Act (FDCPA). The attorney also wrote J.V.D.B. with notice of the bankruptcy, and J.V.D.B. then closed its file. Section 1692e generally prohibits "false, deceptive or misleading" collection activities. Section 1692f prohibits any "unfair or unconscionable means to collect or attempt to collect any debt." In his suit, Turner maintained that J.V.D.B. violated both provisions by essentially telling him that he had to pay a debt that had been discharged in bankruptcy, thus misrepresenting the legal status of the debt.

The district court granted J.V.D.B.'s motion for summary judgment on the ground that there was no evidence from which a reasonable fact-finder could conclude that J.V.D.B. knew that Turner's debt was discharged in bankruptcy. Turner v. J.V.D.B. & Assocs., Inc., 211 F.Supp.2d 1108, 1109 (N.D.Ill.2002). The court below also denied Turner's cross-motion for summary judgment without discussing Turner's arguments. Id. at 1111. Turner appeals.

II.

This court reviews the district court's grant of summary judgment de novo, construing all facts in favor of the nonmoving party. Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.2003). Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there

Page 995

is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). Thus, "[s]ummary judgment is appropriate if, on the record as a whole, a rational trier of fact could not find for the non-moving party." Rogers, 320 F.3d at 752.

A. Section 1692e

Section 1692e, as explained above, generally prohibits "false, deceptive or misleading" collection activities. More specifically, as it applies to our situation, the provision prohibits the "false representation" of "the legal status of any debt." 15 U.S.C. § 1692e(2)(A). In this case, Turner's theory is that J.V.D.B. falsely represented the legal status of his debt by insinuating that, despite the debt's discharge in bankruptcy, Turner was nonetheless obligated to pay the $97.80 obligation that he had incurred to Pre-Paid before his bankruptcy petition. In short, by asserting Turner owed a debt that no longer existed, on its face the letter was false. Relying on Hubbard v. National Bond & Collection Associates, 126 B.R. 422, 427 (D.Del.), aff'd without opinion, 947 F.2d 935 (3d Cir. 1991), the district court granted summary judgment to J.V.D.B., reasoning that, as a matter of law, the debt collector lacked knowledge of Turner's bankruptcy and therefore could not be held liable for sending Turner a collection letter regarding the debt to Pre-Paid.

Although J.V.D.B. was unaware of the bankruptcy, under § 1692e ignorance is no excuse. This circuit has held that "§ 1692e applies even when a false representation was unintentional." Gearing v. Check Brokerage Corp., 233 F.3d 469, 472 (7th Cir.2000) (citing Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996) (because the Act imposes strict liability, a consumer need not show intentional conduct by the debt collector to be entitled to damages)). Moreover, our test for determining whether a debt collector violated § 1692e is objective, turning not on the question of what the debt collector knew but on whether the debt collector's communication would deceive or mislead an unsophisticated, but reasonable, consumer. Gammon v. GC Servs. Ltd. P'Ship, 27 F.3d 1254, 1257 (7th Cir.1994); see also id. at 1259 (Easterbrook, J., concurring) (reasoning that "the trier of fact must inquire whether a misleading implication arises from an objectively reasonable reading of the communication"). Although the existence of the debt collector's knowledge may be relevant insofar as it sheds light on the actual effect that a communication is likely to have on the unsophisticated consumer, the debt collector's subjective intent or belief is not dispositive of our inquiry under § 1692e. Id. at 1258. Regarding § 1692e, then, it was legal error for the district court to treat J.V.D.B.'s lack of knowledge as determinative and to grant summary judgment on that basis. Furthermore, a reasonable jury could conclude as a matter of fact that a misleading implication (that Turner had to pay the $97.80 debt) arises from an objectively reasonable reading of J.V.D.B.'s collection letter of March 29, 2001. We therefore reverse as to § 1692e.

We observe that, on remand, the district court might confront the question of knowledge if J.V.D.B. were to put forth a proper motion asserting the affirmative defense provided by § 1692k(c). Id. Under that subsection, which is entitled "Intent," a debt collector that violates § 1692e, or any other substantive provision of the FDCPA, can avoid liability...

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  • McDermott v. Marcus, Errico, Emmer & Brooks, P.C., CIVIL ACTION NO. 09-10159-MBB
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 20, 2012
    ...explicitly require payment of all sums which would then be due had no acceleration occurred"); Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 998 (7th Cir. 2003) (collection letter furnishing information required under section 1692g was not "an 'unfair or unconscionable means' of debt......
  • Williams v. Seniff, No. 02-1231.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 20, 2003
    ...Cir. Page 782 2003) (reviewing de novo grant of motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)); Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 994 (7th Cir.2003) (reviewing grant of summary judgment de novo). A. First Amendment 1. Connick-Pickering Analysis When a government employ......
  • Clark v. Capital Credit & Collection Serv., No. 04-35563.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 24, 2006
    ...(holding unintentional misrepresentation of debt collector's legal status violated FDCPA); see also Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 995 (7th Cir.2003) (holding unintentional misrepresentation that debtor was obligated to pay a debt discharged in bankruptcy violated FDCP......
  • Bacelli v. MFP, Inc., Case No. 8:09-cv-1396-T-27EAJ
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 28, 2010
    ...Cir.2007) ("Dunning people for their discharged debts" is prohibited by 15 U.S.C. § 1692e(2)(A)); cf. Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 995 (7th Cir.2003) ( " Turner I ") (reversing summary judgment in favor of debt collector on claim under 15 U.S.C. § 1692e(2)(A) in part be......
  • Request a trial to view additional results
300 cases
  • McDermott v. Marcus, Errico, Emmer & Brooks, P.C., CIVIL ACTION NO. 09-10159-MBB
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 20, 2012
    ...explicitly require payment of all sums which would then be due had no acceleration occurred"); Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 998 (7th Cir. 2003) (collection letter furnishing information required under section 1692g was not "an 'unfair or unconscionable means' of debt......
  • Williams v. Seniff, No. 02-1231.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 20, 2003
    ...Cir. Page 782 2003) (reviewing de novo grant of motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)); Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 994 (7th Cir.2003) (reviewing grant of summary judgment de novo). A. First Amendment 1. Connick-Pickering Analysis When a government employ......
  • Clark v. Capital Credit & Collection Serv., No. 04-35563.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 24, 2006
    ...(holding unintentional misrepresentation of debt collector's legal status violated FDCPA); see also Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 995 (7th Cir.2003) (holding unintentional misrepresentation that debtor was obligated to pay a debt discharged in bankruptcy violated FDCP......
  • Bacelli v. MFP, Inc., Case No. 8:09-cv-1396-T-27EAJ
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • July 28, 2010
    ...Cir.2007) ("Dunning people for their discharged debts" is prohibited by 15 U.S.C. § 1692e(2)(A)); cf. Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 995 (7th Cir.2003) ( " Turner I ") (reversing summary judgment in favor of debt collector on claim under 15 U.S.C. § 1692e(2)(A) in part be......
  • Request a trial to view additional results

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