Emily Wagner v. Bellsouth Telecommunications, et al

Filing

UNPUBLISHED OPINION FILED. [12-31080 Affirmed ] Judge: TMR , Judge: EGJ , Judge: WED Mandate pull date is 04/26/2013 [12-31080]

Case: 12-31080

Document: 00512198738

Page: 1

Date Filed: 04/05/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
April 5, 2013

No. 12-31080
Summary Calendar

Lyle W. Cayce
Clerk

EMILY WAGNER,
Plaintiff-Appellant
v.
BELLSOUTH TELECOMMUNICATIONS, INCORPORATED; FRANKLIN
COLLECTION SERVICE, INCORPORATED; EQUIFAX CREDIT
INFORMATION SERVICES, INCORPORATED,
Defendants-Appellees

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:07-CV-604

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
This is an appeal from the district court’s summary judgment for Appellees
regarding a billing dispute between Appellant Emily Wagner and Appellee
BellSouth Telecommunications, Inc. Wagner alleged that BellSouth billed her
for two unauthorized phone services. She did not pay these bills, and BellSouth
referred the two unpaid accounts to collection agencies, including Appellee
*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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Franklin Collection Service, who attempted to collect on the debt. Franklin
reported the two accounts to Appellee Equifax Credit Information Services, Inc.,
who reported the accounts as adverse notations. Wagner filed suit on August 21,
2007 against Appellees, claiming inter alia that BellSouth violated the Louisiana
Unfair Trade Practices Act (LUTPA) for its alleged reassignment of
unauthorized accounts to collection agencies, that Franklin violated § 1692e(8)
of the Fair Debt Collection Practices Act (FDCPA) for supplying an incorrect
date of first delinquency to Equifax on the second of the unauthorized accounts,
and that Equifax violated § 1681i of the Fair Credit Reporting Act (FCRA) for
failing to use reasonable procedures to ensure maximum possible accuracy in her
credit file. The district court granted Appellees’ separate motions for summary
judgment. We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. Hillman v. Loga, 697 F.3d
299, 302 (5th Cir. 2012). For the reasons that follow, we AFFIRM.
First, the district court ruled that Wagner’s claim against BellSouth was
prescribed under the LUTPA’s statute of limitations. The LUTPA requires that
a claim be brought within “one year . . . from the time of the transaction or act
which gave rise to this right of action.” La. Rev. Stat. § 51:1409(E). The district
court concluded that the LUTPA claim against BellSouth was prescribed because
Wagner did not allege any specific improper acts of BellSouth that occurred after
August 21, 2006, which was one year before the filing of her complaint. The
record shows that the last undisputed act by BellSouth was in June 2005 when
the company stopped sending bills to Wagner for her two unpaid accounts. This
is well before the limitations period. Wagner asserts that BellSouth violated the
LUTPA as late as September 16, 2006, when BellSouth allegedly transferred
Wagner’s unauthorized accounts from one collection agency to another.
However, the evidence Wagner has provided for this assertion consists of a copy

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of indecipherable notes apparently produced by BellSouth.1 This evidence is not
competent to prove that BellSouth violated the LUTPA at any point after July
2005.2 Accordingly, Wagner’s LUTPA claim against BellSouth has prescribed.
Second, the district court ruled that Wagner’s claim against Franklin had
prescribed under the FDCPA’s statute of limitations. The FDCPA requires that
a claim be brought “within one year from the date on which the violation occurs.”
15 U.S.C. § 1692k(d). Franklin has provided evidence that the date of its alleged
violation was June 26, 2006, when the agency reported the second of Wagner’s
unauthorized BellSouth accounts to credit bureaus. Wagner has provided no
allegations or evidence to dispute this date. Instead, Wagner argues that under
the discovery rule, the limitations period should not begin to run until
September 16, 2006, because that is when she learned that Franklin was
reporting the second of her BellSouth accounts with an erroneous date of first
delinquency.3 We agree with the district court that the discovery rule does not
apply here. As the district court noted, the record shows that well before the

1

This copy is included as Wagner’s original Exhibit 10, the relevant part of which
consists of two lines that read: “0916 CAI REFERRED TO OCA T3 AMOUNT $80” and
“0916 CADW ACCOUNT WITHDRAWN FROM OCA 59.” Like the district court, we cannot
decipher this evidence without more. At the least, even if Exhibit 10 demonstrates that a
transfer was made on one of the two unauthorized accounts—one of which was indeed in the
amount of $80—, Exhibit 10 does not demonstrate that it was BellSouth who was responsible
for that transfer.
2

Wagner also raises the continuing violation doctrine, alleging that BellSouth
continued to engage collection agencies to collect on her unauthorized accounts as late as
September 16, 2006. As already discussed, Wagner has not satisfied her burden of proving
with competent evidence that BellSouth violated the LUTPA after June 2005. Without
competent evidence, she cannot prove that there was a continuing LUTPA violation either.
See CheckPoint Fluidic Sys. Int’l, Ltd. v. Guccione, 888 F. Supp. 2d 780, 791 (E.D. La. 2012)
(“‘When a plaintiff attempts to avail herself of the continuing tort theory, the plaintiff bears
the burden of establishing its applicability.’”) (citation omitted).
3

Wagner relies on an Equifax credit report dated September 16, 2006. This evidence
is different from the evidence discussed above with respect to Wagner’s claim against
BellSouth.

3

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limitations period, Wagner had seen Franklin repeatedly listed in adverse
notations on her credit reports, she had received two collection notices from
Franklin following a dispute letter she sent to the agency, and by her own
allegations she was harassed and intimidated by numerous bill collectors.4 This
evidence shows that at the very least Wagner had constructive knowledge that
Franklin was in violation of the FDCPA. See Martinez Mgmt., Inc. v. Caston,
39,500 (La. App. 2 Cir. 4/13/05), 900 So. 2d 301, 305 (“An injured party has
constructive notice of his condition when he possesses information sufficient to
incite curiosity, excite attention or put a reasonable person on guard to call for
inquiry.”); La. Civ. Code arts. 3492, 3493. Therefore, Wagner’s FDCPA claim
against Franklin has prescribed.
Finally, the district court awarded summary judgment to Equifax on the
ground that Wagner failed to establish actual damages that were proximately
caused by Equifax. See Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th
Cir. 2001) (“Without a causal relation between the violation of the [FCRA] and
the loss of credit, or some other harm, a plaintiff cannot obtain an award of
‘actual damages[.]’”) On appeal, Wagner presses two damages claims, namely
the reduction of her credit line with a creditor and her emotional distress.
Beginning with the former, we recently held that a credit line reduction by itself
cannot constitute actual damages for the purposes of an FCRA claim. Smith v.
Santander Consumer USA, Inc., 703 F.3d 316, 317 (5th Cir. 2012). Wagner has
made no allegations and provided no evidence of damages she suffered from the
credit line reduction, and thus under Smith she has no viable economic damages
claim. As for her emotional distress, an FCRA plaintiff seeking emotional

4

For example, the record includes an Equifax credit report for Wagner dated as early
as January 19, 2006, which lists Franklin as a collection agency for the first of Wagner’s
unauthorized BellSouth accounts. The record also includes a collection letter dated March 22,
2006 from Franklin to Wagner that referenced both BellSouth accounts.

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distress damages is required to present “evidence of genuine injury, such as the
evidence of the injured party’s conduct and the observations of others,” and to
demonstrate “a degree of specificity which may include corroborating testimony
or medical or psychological evidence in support of the damage award.” Cousin
v. Trans Union Corp., 246 F.3d 359, 371 (5th Cir. 2001) (internal quotation
marks and citation omitted). Wagner has presented no evidence of injury
beyond her own conclusory assertions about emotional distress, which are
insufficient to support an emotional damages award.5 See id. (holding that
FCRA plaintiff’s assertions that he was “[v]ery upset,” “angry,” and “felt . . . like
being trapped” were insufficient for emotional damages award). For these
reasons, Wagner cannot prevail on her FCRA claim against Equifax.
AFFIRMED.

5

In particular, Wagner alleged that she lost sleep, was humiliated, and felt “bad,”
“guilty,” and “helpless.” She has also alleged that she suffered headaches, but stated, “I would
have trouble blaming the headaches on this [incident].”

5