Tremaine Pace v. Portfolio Recovery Associate

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Raymond W. Gruender. --(UNPUBLISHED)-- [4043576] [12-2754]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2754
___________________________
Tremaine L. Pace
lllllllllllllllllllll Plaintiff - Appellant
v.
Portfolio Recovery Associates, LLC
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: March 11, 2013
Filed: June 10, 2013
[Unpublished]
____________
Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
____________
PER CURIAM.
Tremaine L. Pace filed suit against Portfolio Recovery Associates, LLC
("Portfolio"), claiming violations of the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. § 1692 et seq. Relevant to the present appeal, Pace alleged that Portfolio
violated 15 U.S.C. § 1692c(c) of the FDCPA when it continued calling him after he
mailed a cease-and-desist letter. Portfolio moved for summary judgment, arguing,

Appellate Case: 12-2754

Page: 1

Date Filed: 06/10/2013 Entry ID: 4043576

among other things, that it never received such a letter and that Pace failed to produce
any evidence that it did. The district court1 granted Portfolio's motion, finding that
this claim failed for want of proof of receipt. We affirm because Pace adduced no
evidence that Portfolio continued calling Pace after he sent the cease-and-desist letter.
I. Background2
Pace had credit accounts with Southwestern Bell Telephone and Capital One
Bank. Pace allegedly defaulted on his obligations. In 2011, Pace received debtcollection telephone calls from Portfolio. Pace maintains that he kept a call log of the
phone calls that he received from debt collectors. Pace provided his call logs orally
to his counsel over the telephone, but he did not provide the written logs to his
attorney. Pace has not produced a copy of the call logs and stated in discovery
responses that he "is in possession of no responsive document." Pace received debtcollection calls from at least two other debt collectors while also receiving collection
calls from Portfolio. Pace maintains that his call logs kept track of these calls, too.
Pace filed suit against Portfolio, alleging, among other things, that Portfolio
violated 15 U.S.C. § 1692c(c) of the FDCPA when it continued calling him after he
mailed a cease-and-desist letter to Portfolio. Pace could not "recall even what the
[cease-and-desist] letter said or anything." He testified that he had no record of when
he mailed Portfolio the letter. According to Pace, he handwrote the cease-and-desist
letter and mailed it with the U.S. Postal Service. Pace agrees that Portfolio's
representative stated in an affidavit that Portfolio has no record of ever receiving any
correspondence from Pace.

1

The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
2

Pace admitted to the following facts in his response to Portfolio's statement of
uncontroverted facts in support of its motion for summary judgment.
-2-

Appellate Case: 12-2754

Page: 2

Date Filed: 06/10/2013 Entry ID: 4043576

Portfolio moved for summary judgment, arguing that, among other things, it
never received a cease-and-desist letter from Pace and that Pace failed to produce any
evidence that it did. The district court granted Portfolio's motion, finding that Pace's
FDCPA claim failed for want of proof that the debt collector received the cease-anddesist letter.
II. Discussion
On appeal, Pace argues that the district court "erred when it found that a
FDCPA plaintiff, in assert[ing] . . . a violation of 15 U.S.C. § 1692c(c), must make
a specific proof [of] mailing, that [the plaintiff's] claim fails for want of proof of
receipt, and that the statutory language requires such proof."
We review summary judgment motions de novo. Johnson v. AT
& T Corp., 422 F.3d 756, 760 (8th Cir. 2005). "Summary judgment is
proper if the evidence, viewed in the light most favorable to the
nonmoving party, demonstrates that no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law."
Thomas v. Union Pac. R.R. Co., 308 F.3d 891, 893 (8th Cir. 2002). We
"may affirm the district court on any basis supported by the record." Id.
Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 907 (8th Cir. 2010).
Section 1692c(c) provides that "[i]f a consumer notifies a debt collector in
writing that the consumer refuses to pay a debt or that the consumer wishes the debt
collector to cease further communication with the consumer, the debt collector shall
not communicate further with the consumer with respect to such debt," barring such
exceptions not relevant to the present case. 15 U.S.C. § 1692c(c). "If such notice from
the consumer is made by mail, notification shall be complete upon receipt." Id.
We need not address whether the district court erred in finding that Pace's
§ 1692c(c) claim failed for want of proof of receipt by Portfolio. Pace's claim fails
-3-

Appellate Case: 12-2754

Page: 3

Date Filed: 06/10/2013 Entry ID: 4043576

because Pace has adduced no evidence that Portfolio continued to communicate with
him after he sent the cease-and-desist letter. Consequently, Pace cannot prove a
violation of § 1692c(c).
Under § 1692c(c), a plaintiff must demonstrate that the debt collector
"communicate[d] further with the consumer with respect to [the] debt" after the
"consumer notifie[d] [the] debt collector in writing that the consumer . . . wishes the
debt collector to cease further communication with the consumer." Pace alleged in
his complaint that Portfolio "continued to contact [him] after he mailed a cease[-]
and[-]desist letter[,] in violation of 15 U.S.C. § 1692c(c)." But once Portfolio moved
for summary judgment, Pace was required to "discard the shielding cloak of formal
allegations and meet proof with proof by showing a genuine issue as to a material
fact." See Conseco, 620 F.3d at 909 (quotation and citation omitted).
It is undisputed that Pace kept call logs of the phone calls that he received from
debt collectors and provided those call logs orally to his counsel over the telephone.
It is also undisputed that Pace never produced the written logs to his attorney. More
importantly, Pace has not produced a copy of the call logs in response to Portfolio's
motion for summary judgment. In discovery responses, Pace stated that he "is in
possession of no responsive document." Pace has provided no affidavit or other
evidence to create a genuine issue of material fact as to when or if Portfolio contacted
him after he sent the cease-and-desist letter. Thus, Pace has produced no evidence in
response to Portfolio's motion for summary judgment to support his allegation that
he continued receiving calls from Portfolio after he sent the cease-and-desist letter.
On this record, the district court did not err in granting Portfolio's motion for
summary judgment.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
______________________________
-4-

Appellate Case: 12-2754

Page: 4

Date Filed: 06/10/2013 Entry ID: 4043576