Withers v. Eveland

• Citation: 988 F.Supp. 942
• Decision Date: 29 August 1997
• Docket Number: Civil Action No. 3:97cv140.
• Parties: Mervin WITHERS, Plaintiff, v. H.R. EVELAND, d/b/a/ Imperial Company, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

988 F.Supp. 942

Mervin WITHERS, Plaintiff, v. H.R. EVELAND, d/b/a/ Imperial Company, Defendant.

Civil Action No. 3:97cv140.

United States District Court, E.D. Virginia, Richmond Division.

August 29, 1997.

COPYRIGHT MATERIAL OMITTED

Dale Wood Pittman, Petersburg, VA, for Mervin Withers.

H.R. Eveland, Tulsa, OK, pro se.

MEMORANDUM

MERHIGE, District Judge.

This matter is before the Court on Plaintiff Mervin Withers' Motion For Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Defendant H.R. Eveland has failed to respond to the motion. For the reasons which follow, the Court will GRANT the Motion For Summary Judgment.

I.

Plaintiff Mervin Withers ("Withers") purchased residential cable television service for personal, family, or household purposes from Frontier Vision, a cable television service provider. Withers Aff. ¶¶ 4, 5. Defendant H.R. Eveland ("Eveland") is President of Imperial Company, a debt collection agency. Answer ¶ 5. By letter dated October 10, 1996, Eveland attempted to collect $40.14 from Withers on behalf of Frontier Vision. Answer ¶ 7. In full, the collection notice stated:

[W]e have been retained by the above client to institute collection proceedings against you for the above past due amount. This letter constitutes a formal demand upon you for payment IN FULL WITHIN FIVE (5) DAYS. If you have not contacted our office nor made payment in full within five (5) days, we will be required to pursue all legal remedies available to our client.

You should know, if this is taken to court, you may be held responsible for court costs and attorney fees in addition to the account total above.

The choice is yours.

Unless you dispute the validity of this debt, or any portion thereof, within thirty days of receipt of this letter, we will assume that the credit is valid. If you notify us in writing within the thirty day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt and mail you a copy. We will also provide you with the name and address of the original creditor, if different from the current creditor, upon your written request within the thirty day period.

Pl.'s Ex. A.¹ To date, neither Eveland nor Frontier Vision has filed suit against Withers to collect the disputed debt. Withers' Aff. ¶ 6; Answer ¶ 10.

Based on this dunning letter, Withers asserts that Eveland has violated the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. Specifically, Withers claims that the letter's demand for payment within five days contradicted the debt validation language required by § 1692g, and that this contradiction constituted use of a misleading representation or deceptive means to collect a debt in violation of § 1692e(10). Withers also claims that Eveland's threat to take legal action was a threat to take action that could not be legally taken or that was not intended to be taken in violation of § 1692e(5). Based on the foregoing, Withers has moved for summary judgment, contending that there are no genuine issues of material fact. To date, Eveland has failed to respond. Accordingly, pursuant to Local Rule 56(B), the Court will deem the facts identified in Withers' motion as admitted.²

II.

A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. Summary judgment is appropriate only when the Court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Allstate Fin. Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir. 1991). The moving party has the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the moving party has satisfied its burden, the Court considers all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Ballinger v. North Carolina Agricultural Extension Serv., 815 F.2d 1001, 1004 (4th Cir.1987).

Once the movant has met this burden, and a properly supported motion is before the Court, the non-moving party must set forth specific facts showing that there is a genuine issue for trial in order to defeat the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Allstate, 934 F.2d at 58. Summary judgment is proper if, based on the evidence, "a reasonable jury could [not] return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Allstate, 934 F.2d at 58.

B. Standard For Analyzing FDCPA Claims

The FDCPA was enacted to protect consumers from abusive and deceptive debt collection practices, and to insure that non-abusive debt collectors would not be competitively disadvantaged. 15 U.S.C. § 1692(e). To establish a violation of the FDCPA, three requirements must be satisfied: (1) the plaintiff who has been the target of collection activity must be a "consumer" as defined in § 1692a(3); (2) the defendant collecting the debt must be a "debt collector" as defined in § 1692a(6); and (3) the defendant must have engaged in any act or omission in violation of the FDCPA. In evaluating alleged violations of the Act, the Fourth Circuit generally applies the objective "least sophisticated debtor" standard. U.S. v. National Fin. Serv., Inc., 98 F.3d 131, 135-36 (4th Cir.1996). In adopting this standard, the Fourth Circuit stated:

The basic purpose of the least-sophisticated-consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd. This standard is consistent with the norms that courts have traditionally applied in consumer-protection law.

Id. at 136 (citing Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993) (citation omitted)). With these principles in mind, the Court will review Withers' Motion For Summary Judgment.

III.

A. 15 U.S.C. §§ 1692e(5), (10)

Withers' first argument in support of his Motion For Summary Judgment is that the collection notice sent by Eveland improperly threatened legal action in violation of 15 U.S.C. §§ 1692e(5) and (10). Section 1692e of the FDCPA establishes a broad ban on all false and misleading means of debt collection. Specifically, the statute prohibits:

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

. . . . .

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

15 U.S.C. §§ 1692e(5), (10). Thus, a collection notice violates § 1692e(5) if: (1) a debtor would reasonably believe that the notice threatens legal action; and (2) the debt collector does not intend to take legal action. U.S. v. National Fin. Serv., Inc., 98 F.3d 131, 135 (4th Cir.1996).

In the instant case, there is no dispute of facts regarding the collection letter or its content.³ The letter specifically stated that Eveland's debt collection agency had been "retained" by Frontier Vision "to institute collection proceedings against [Withers]." In addition, the letter indicated that if Withers failed to either contact Imperial Company or make payment in full, "all legal remedies" would be pursued. Under the standard adopted by the Fourth Circuit in analyzing FDCPA violations, an unsophisticated debtor would interpret such language to mean that immediate legal action would be taken for failure to pay the alleged debt. Although Eveland did not explicitly state that legal action would in fact be taken, the implication is clear. No reasonable juror could conclude that the collection letter was not meant to frighten Withers into making full payment in order to avoid the prospect of a lawsuit. Thus, the Court will find that Withers reasonably interpreted the letter as threatening legal action if the debt was not paid by the payment deadline.

The Court will also find that there is no evidence that Eveland intended to take legal action at the time the collection notice was sent to Withers. Under Virginia law and the FDCPA, a non-lawyer cannot represent the interests of another before a tribunal or threaten to file suit to collect a debt owed to another. Va.Code § 54.1-3904;⁴ 15 U.S.C. § 1692e(5). There is no indication in the record that Eveland is qualified or licensed to practice law. Thus, as a non-lawyer, Eveland could not legally file suit against Withers on behalf of Frontier Vision. By threatening to do so, Eveland "threat[ened] to take [] action that cannot legally be taken or that is not intended to be taken" and therefore, violated § 1692e(5).

In addition, by falsely threatening to take legal action, Eveland also violated § 1692e(10). Pursuant to that provision, debt collectors are prohibited from using "any false representation or deceptive means to collect or attempt to collect any debt ...." § 1692e(10). Courts have consistently held that falsely representing that unpaid debts would be referred to an attorney for immediate legal action is a deceptive practice. National Fin. Serv., 98 F.3d at 138 (citing Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1175 (11th Cir.1985)). Similarly, falsely representing that a debt collection agency has the authority to file suit on behalf of a client would also constitute a deceptive practice. As the Fourth Circuit stated, "[it] may unjustifiably frighten an unsophisticated consumer into paying a debt that he or she does not owe." Id. (citation omitted).

Based on the foregoing, the Court concludes that there is no genuine issue as to whether Eveland improperly threatened legal action in violation of §§ 1692e(5) and (10). Accordingly, the Court shall grant...