Roper v. Portfolio Recovery Associates LLC et al

Filing 32

OPINION AND ORDER denying 16 Motion for Partial Summary Judgment. Signed by Judge Susan Webber Wright on 10/5/2015. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
AYLETTE ROPER,
Plaintiff,
vs.

PORTFOLIO RECOVERY
ASSOCIATES, LLC, and LORI
WITHROW, individually and d/b/a
ALLEN & WITHROW, ATTORNEYS
AT LAW, and d/b/a LAW OFFICES
OF ALLEN & WITHROW,
Defendants.

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No. 4:14-cv-00729-SWW

OPINION AND ORDER
Aylette Roper brings this action against Portfolio Recovery Associates, LLC
(Portfolio), and Lori Withrow, individually and d/b/a Allen & Withrow, Attorneys at
Law, and d/b/a Law Offices of Allen & Withrow (Withrow), alleging violations of the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Arkansas
Deceptive Trade Practices Act (ADTPA), Ark. Code Ann. § 4-88-101 et seq. Roper
alleges defendants violated the FDCPA and the ADTPA by filing a debt collection action
in state court that they knew was meritless.
The matter is before the Court on motion of Roper for partial summary judgment
[doc.#16]. Defendants have responded in opposition to Roper’s motion, Roper has
replied to defendants’ responses, and Portfolio has filed a sur-reply. For the reasons that
follow, the Court denies Roper’s motion for partial summary judgment.

I.
This action relates to a credit card account, no. XXXX-XXXX-XXXX-3250 (a
GM Flexible Earnings Card), that was issued by HSBC Bank Nevada, N.A. to Roper. At
all times relevant to this action, there was a balance due on the account.
Roper’s credit card statement covering the period from June 8, 2010, to July 9,
2010, reflects that on June 15, 2010, Roper made a payment on the account in the amount
of $78.00. Roper’s credit card statements covering the period from July 9, 2010, to
January 9, 2011, reflect that no further payments on the account were made and that at the
end of that period there was a balance due on the account of $2,187.05.1
On July 22, 2011, David Nauman, Vice President of HSBC Bank Nevada, N.A.
and HSBC Bank USA, N.A. (collectively “HSBC”), executed an Assignment and Bill of
Sale (“Bill of Sale”) by which HSBC sold, assigned and transferred to Portfolio all of
HSBC’s rights, title, and interest in and to certain accounts, including the Roper account
no. XXXX-XXXX-XXXX-3250, that were identified in an electronic exhibit attached to
the Bill of Sale. The Bill of Sale states Roper’s account had a balance of $2,187.05 and
the exhibit attached to the Bill of Sale states the account was delinquent as of January 31,
2011.2
1

The vendors identified on the credit card statements as having been paid by the credit
card were primarily gas stations, restaurants, and grocery stores, as well as an “Animal Family
Practice” clinic, a nail salon, an auto parts store, Comcast, a carwash, and an iTunes account.
2

On October 27, 2014, Nancy Taylor, Vice President and Assistant Secretary,
Administrative Services Division of HSBC Finance Corporation, successor to HSBC Bank
Nevada, N.A., and the Vice President and Assistant Secretary of HSBC Bank USA, N.A.,
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On July 7, 2014, Withrow, on behalf of Portfolio, filed an action against Roper in
the District Court of Pulaski County, Arkansas (Case No. PCCV-14-1963) to collect the
credit card debt Roper allegedly owed to Portfolio on account no. XXXX-XXXX-XXXX3250. Attached to the complaint was the sworn affidavit of Michael La Douceur,
Custodian of Records for Portfolio, indicating that no payment had been made on the
account for more than three years. La Douceur Aff. ¶ 4. Specifically, La Doucer states
that “[a]ccording to the records transferred to the Account Assignee from Account Seller
... there was due and payable from Aylette Roper ... to the Account Seller the sum of
$2,187.05 with the [sic] respect to account number ending in (redacted) as of the date of
01/31/2011....” Id. No other instrument or document upon which the claim is based was
attached to the complaint.
On February 4, 2015, the Pulaski County District Court, upon motion of Portfolio,
dismissed the action without prejudice pursuant to Ark.R.Civ.P. 41(a).
II.
Roper moves for partial summary judgment on grounds that defendants pursued
litigation against her (1) on a facially time-barred debt, (2) with knowledge of defendants’
own inability to offer any proof of the validity of the underlying debt or defendants’

successor to HSBC Receivable Acquisition Corporation (USA) III (collectively “HSBC”),
executed an Affidavit of Sale of Individual Account (“Affidavit of Sale”) which states that
HSBC “sold the account numbered XXXXXXXXXXXX3250 in the name of ROPER,
AYLETTE with a balance of $2,187.05… by a Purchase and Sale Agreement and Bill of Sale to
Portfolio Recovery Associates, LLC.…” The Affidavit of Sale further “acknowledges that
[Portfolio] became the owner of [Roper’s account] on the date of sale.”
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entitlement to collect the alleged debt, (3) without complying with Ark.R.Civ.P. 10(d), (4)
with the supporting affidavit of an individual who lacked personal knowledge of any
transactions, business records, or record-keeping practices as alleged by the affiant, and
(5) otherwise knowing that the action was improper and untenable. Roper argues it is
undisputed that these actions violated both the FDCPA and the ADTPA and that the only
issue remaining for trial is damages.
A.
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(a). To support an assertion that a fact cannot be or is genuinely
disputed, a party must cite “to particular parts of materials in the record,” or show “that
the materials cited do not establish the absence or presence of a genuine dispute,” or “that
an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1)(A)-(B). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed.R.Civ.P. 56(c)(3). The inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the party opposing the
motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (citations
omitted). Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and quotation marks
omitted). However, “[w]here the record taken as a whole could not lead a rational trier of
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fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,
475 U.S. at 587 (citation omitted). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
B.
FDCPA
“The purpose of the FDCPA is to ‘eliminate abusive debt collection practices by
debt collectors,’ ... and debt collectors are liable for failure to comply with ‘any
provision’ of the Act.” Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006) (quoting
15 U.S.C. §§ 1692(e), 1692k(a)). “According to § 1692e, ‘[a] debt collector may not use
any false, deceptive, or misleading representation or means in connection with the
collection of any debt.’” Id.3

3

Roper is an individual consumer under the FDCPA, see 15 U.S.C. § 1692a(3)
(providing that “[t]he term ‘consumer’ means any natural person obligated or allegedly obligated
to pay any debt”), and Withrow and Portfolio are debt collectors under the FDCPA. See 15
U.S.C. § 1692a(6) (providing that “[t]he term ‘debt collector’ means any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another”). Having considered
Portfolio’s argument, the Court finds that there remain genuine issues of material fact concerning
whether the alleged credit card debt at issue was incurred primarily for personal, family, or
household purposes. See 15 U.S.C. § 1692a(5) (providing that “[t]he term ‘debt’ means any
obligation or alleged obligation of a consumer to pay money arising out of a transaction in which
the money, property, insurance, or services which are the subject of the transaction are primarily
for personal, family, or household purposes, whether or not such obligation has been reduced to
judgment”).
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The Court will address in turn the alleged instances of conduct that Roper claims
constitutes a violation of the FDCPA.
1. Pursuit of Time-Barred Debt
In arguing that defendants pursued the underlying action on a time-barred debt,
Roper points to the La Douceur affidavit attached to the underlying complaint that states
there was due from Roper the sum of $2,187.05 on the relevant account as of the date of
January 31, 2011. La Douceur Aff. ¶ 4. Roper argues that the underlying action filed by
Withrow on behalf of Portfolio on July 7, 2014, was thus well beyond the three-year
statute of limitations applicable to open accounts and that pursuing an action on a timebarred debt violates the FDCPA. See Fryermuth v. Credit Bureau Services, Inc., 248
F.3d 767, 771 (8th Cir. 2001) (holding “that, in the absence of a threat of litigation or
actual litigation, no violation of the FDCPA has occurred when a debt collector attempts
to collect on a potentially time-barred debt that is otherwise valid.”) (emphasis added)).
See also Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1079 (7th Cir. 2013
(explaining that a debt collector’s filing of a time-barred suit to recover a debt violates the
FDCPA); Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1259 (11th Cir. 2014)
(“Federal Circuit and district courts have uniformly held that a debt collector’s
threatening to sue on a time-barred debt and/or filing a time-barred suit in state court to
recover that debt violates §§ 1692e and 1692f.”) (collecting cases, including

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Freyermuth4)).
It is true that the three-year statute of limitations in Ark. Code Ann. § 16-56-105(1)
applies to actions on open accounts. See In Re Pettingill, 403 B.R. 624, 627 (Bkrtcy.
E.D. Ark. 2009).5 However, debts that arise from a credit card agreement are subject to
the five-year statute of limitations in Ark. Code Ann. § 16-56-111 for written obligations.
Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, at *18-19, 372 S.W.3d 324, 336 (citing
In re Pettingill, 403 B.R. 624). Defendants have submitted evidence that Roper’s credit
card account at issue was used to make purchases, that payments were made on the
account, that there is due the sum of $2,187.05 on the account as of January 31, 2011
(with the last payment on the account being made on June 15, 2010), and that Portfolio
owns that debt. The filing date of the underlying action–July 7, 2014–was well within the
five-year statute of limitations applicable to a credit card agreement.

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“Of course, Freyermuth does not stand for the proposition that a FDCPA violation has
occurred if there is any sort of litigation associated with a stale debt.” In re Gatewood, 533 B.R.
905, 908 n.3 (B.A.P. 8th Cir. 2015) (emphasis in original). “It only stands for the proposition that
absent litigation or the threat of litigation, there cannot be a FDCPA violation for trying to
collect a stale debt.” Id. “If there is litigation, the decision still needs to be made as to whether
the FDCPA has been violated.” Id. See also Crawford, 758 F.3d at 1259 & n.4 (in addressing
whether trying to enforce a time-barred debt would be unfair, unconscionable, deceiving, or
misleading, court noted that although the FDCPA is generally described as a “strict liability”
statute, “a debt collector’s knowledge and intent can be relevant–for example, a debt collector
can avoid liability if it ‘shows by a preponderance of the evidence that the violation was not
intentional and resulted from a bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.’”) (quoting 15 U.S.C. § 1692k(c)).
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An open account is a type of contractual obligation. Id. “In Arkansas, the term ‘open
account’ means an account based upon running or concurrent dealings between the parties,
which has not been closed, settled, or stated, and in which the inclusion of further dealings
between the parties is contemplated.” Id.
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Roper, however, argues that defendants failed to produce the written credit card
agreement underlying their argument that a five-year statute of limitations applies and
that “the mere usage of the credit card is insufficient to create a genuine issue of material
fact regarding whether a written agreement existed.” While Roper is correct that
defendants have not produced the written credit card agreement, the Court may
nevertheless take judicial notice that credit cards are issued in conjunction with a written
agreement. See, e.g., In re Kendall, 380 B.R. 37, 45 (Bankr. N.D. Okla. 2007) (taking
“judicial notice that the terms of an agreement between a credit card holder and a credit
card issuer are set forth in writing,” and stating that “[t]he complexity of the relationship
between a cardholder and card issuer requires that all of these variables be agreed to in a
writing or writings, and federal law requires that consumer cardholders be given written
disclosure of these terms.”); In re Star, No. 07-13440DWS, 2008 WL 324125, at *6
(Bankr. E.D. Pa. Feb. 01, 2008) (taking judicial notice that the terms of an agreement
between a credit card holder and a credit card issuer are set forth in writing); In re
Richter, 478 B.R. 30, 41 (Bkrtcy. D. Colo. 2012) (noting that under federal law “[t]he
terms of an agreement between a credit card holder and a credit card issuer must be set
forth in writing”); In re Taylor, 363 B.R. 303, 307 (Bkrtcy. M.D. Fla. 2007) (“All retail
charge accounts constitute claims based on a writing”); In re Cluff, 313 B.R. 323, 334 n.
32 (Bkrtcy. D. Utah 2004) (noting that the federal Truth-in-Lending Act requires credit
card agreements to be in writing); In re Gulley, 400 B.R. 529, 540 n. 13 (Bkrtcy N.D.
Tex. 2009) (“A claim based on a credit card agreement, which is required to be in writing,
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pursuant to the Truth–in–Lending Act, is based on a writing.”) (citation and internal
quotation marks omitted). Thus, failure to produce the written agreement does not
necessarily preclude application of the five-year statute of limitations and the Court
denies Roper’s motion for summary judgment on her claim that defendants pursued a
time-barred debt.6
2. Inability to Prove Validity of Underlying Debt or Entitlement to Collect Debt
Roper argues that defendants filed the underlying action knowing they could not
prove the validity of the original debt and knowing they could not prove any assignment
to Portfolio which would entitle Portfolio to collect the debt. Roper argues the existence
of a valid and enforceable agreement between herself and the original creditor is critical
to Portfolio’s claims in the underlying action and yet Portfolio cannot produce evidence
from which a finder of fact could determine that such an agreement existed.
Roper is not entitled to summary judgment on this claim as the Court has already
found that defendants have submitted evidence that Roper’s credit card account at issue
was used to make purchases, that payments were made on the credit card account, that
there is due the sum of $2,187.05 on that account, that Portfolio owns that debt, and that
the Court may take judicial notice that credit cards are issued in conjunction with a

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As to why the written agreement has not been produced, Withrow states that
“[p]pursuant to the Truth in Lending Act (Regulation Z), specifically at 12 C.F.R. 226.25, and
the Equal Credit Opportunity Act (Regulation B), specifically at 12 C.F.R. 202.12, creditors may
destroy documentation relating to debts after selling the account, and in fact creditors do
routinely destroy such documentation.” Withrow states that “[i]t is more than likely that the
original creditor no longer maintains records relating to the subject debt.”
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written agreement. Morever, defendants have attached to the underlying complaint the La
Douceur affidavit certifying that Roper’s debt has been “sold, assigned and transferred”
to Portfolio and the amount of that debt. “The filing of an affidavit is sufficient, and
while a debtor is entitled to ask for more information, the FDCPA does not require a
creditor to establish a hyper-detailed paper trail as a predicate to filing suit.” Jackson v.
Portfolio Recovery Associates, LLC, No. 3:15-cv-00075 BSM (E.D. Ark. July 1, 2015).
See also Loftis v. Credit Acceptance Corp., No. 4:10cv000496 BSM, 2011 WL 976621, at
*2-3 (E.D. Ark. March 18, 2011) (“The failure to attach the written obligation to the state
court complaint ... does not constitute a false statement” under the FDCPA).
3. Failure to Comply with Ark.R.Civ.P. 10(d)
“Rule 10(d) concerns form of pleadings and required exhibits, and states that ‘[a]
copy of any written instrument or document upon which a claim or defense is based shall
be attached as an exhibit to the pleading in which such claim or defense is averred unless
good cause is shown for its absence in such pleading.’” LVNV Funding, LLC v. Nardi,
2012 Ark. 460, 2012 WL 6218481, at *2-3 (quoting Ark.R.Civ.P. 10(d)). Roper argues
that defendants willfully violated Rule 10(d) by failing to attach to the underlying
complaint the written agreement upon which the claim was based.
The FDCPA is not “an enforcement mechanism for other rules of state and federal
law,” Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470, 474 (7th Cir.
2007), and Roper acknowledges that a failure to comply with Rule 10(d) does not,
“standing on its own,” constitute a violation of the FDCPA. See Carlson v. First Revenue
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Assur., 359 F.3d 1015, 1018 (8th Cir. 2004) (“The FDCPA was designed to provide basic,
overarching rules for debt collection activities; it was not meant to convert every violation
of a state debt collection law into a federal violation.”); Born, 2010 Ark. 292, at *20, 372
S.W.3d at 337 (“[i]t is ... clear that general violations of the Arkansas Rules of Civil
Procedure do not necessarily give rise to a claim under the FDCPA.”); Higgins v. Capitol
Credit Card Services, Inc., 762 F.Supp. 1128, 1137 (D. Del. 1991) (noting that a suit in
federal court alleging violation of the FDCPA is not an appropriate forum for challenging
state court procedures) (cited with approval in Born, 2010 Ark. 292, 372 S.W.3d 324)).
Based on this record, the Court finds that Roper is not entitled to summary judgment on
her claim that defendants violated Ark.R.Civ.P. 10(d) by failing to attach to the
underlying complaint the written agreement upon which the credit card account is
founded.
4. Lack of Personal Knowledge of Affiant
Roper essentially argues that La Douceur’s representations in his affidavit that he
reviewed relevant records and that Roper’s account had been assigned to Portfolio are
false and misleading because there were no such records to review. Roper argues that
“filing the Affidavit rife with wholly false and unsupported allegations violates Section
1692e of the FDCPA, which prohibits the use of a[n]y ‘false, deceptive, or misleading
representation or means in connection with the collection of any debt.’”
The Court denies Roper’s motion for summary judgment on this claim as Portfolio
correctly notes, consistent with the representations in the La Douceur affidavit, that it has
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produced both a copy of the Bill of Sale by which it acquired Roper’s debt and the
electronic exhibit to the Bill of Sale that identifies Roper’s debt by, among other
information, the account number, Roper’s name, the amount of the debt, the original
creditor, Roper’s date of birth, and Roper’s social security number. Roper has not shown
that La Douceur lacked personal knowledge of any transactions, business records, or
record-keeping practices relevant to the underlying action.
5. Knowledge of Untenable Lawsuit
Roper states that although each of the deficiencies set forth above are sufficient on
their own to support a violation of the FDCPA, a finder of fact viewing all of the
shortcomings as a whole could not find compliance with the FDCPA. Roper goes on to
assert that Portfolio issued a letter to her in which Portfolio admitted that no debt was
owed by her to Portfolio and she argues that “[t]here is only one conclusion to be drawn
from the facts in this case—that Defendants wilfully violated Section 1692e of the
FDCPA through their false, deceptive and misleading assertions made in the underlying
lawsuit.”
For the reasons set forth in today’s Opinion and Order, the alleged deficiencies
identified by Roper do not entitle her to partial summary judgment. Moreover, the
Porfolio letter to which Roper refers relates to a different credit card account that has
nothing to do with this action.
ADTPA
The catchall provision of the ADTPA, Ark. Code Ann. § 4-88-107(a)(10),
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prohibits “[e]ngaging in any other unconscionable, false, or deceptive act or practice in
business, commerce, or trade” that is not listed under the first nine subsections of § 4-88107(a). The elements of a cause of action under § 4-88-107(a)(10) are (1) a deceptive
consumer-oriented act or practice which is misleading in a material respect, and (2) injury
resulting from such act. Stonebridge Collection, Inc. v. Carmichael, 791 F.3d 811, 822
(8th Cir. 2015).
Roper does not allege that any conduct on the part of defendants violates the
ADTPA apart from the same conduct that she alleges violates the FDCPA and both
defendants argue that Roper’s motion for summary judgment on her ADTPA claims
should be denied for the same reasons summary judgment should be denied on her
FDCPA claims. The Court agrees and further finds that Roper’s motion for summary
judgment on her ADTPA claims fails for two additional reasons not articulated by the
defendants.
First, concerning Withrow, the Arkansas Supreme Court has made clear that the
ADTPA does not apply to an attorney practicing law in undertaking debt collections. See
Boyajian v. State, 2012 Ark. 210, at *2-3, 2012 WL 1739107; Bennett & Deloney, P.C. v.
State ex rel. McDaniel, 2012 Ark. 119, at *6-7, 388 S.W.3d 12, 15-16; Born, 2010 Ark.
292, at *14-15, 372 S.W.3d at 334.7 Because it is undisputed that Withrow was engaged

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The Court noted that “[t]he practice of law cannot be regulated by an act of the General
Assembly because the practice of law is within the exclusive jurisdiction of the judiciary.”
Boyajian, 2012 Ark. 210, 2012 WL 1739107.
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in the practice of law in undertaking the debt collection on behalf of Portfolio, the
ADTPA had no applicability to her actions in undertaking that debt collection.8
Concerning Portfolio, there is no showing or allegation even that Portfolio engaged
in any direct communications or dealings with Roper–this action is based solely on the
filing of the underlying action by Withrow on behalf of Portfolio. But even if Withrow’s
conduct may be imputed to Portfolio for vicarious liability purposes, Withrow’s conduct,
as a matter of law, does not constitute a violation of the ADTPA, thereby precluding an
ADTPA claim against Portfolio founded on Withrow’s conduct. Cf. In re Humes, 496
B.R. 557, 584-85 (Bkrtcy. E.D. Ark. 2013) (creditor was not liable to debtor for alleged
violation of ADTPA, where creditor did not engage in any direct communications or
dealings with debtor and, under Arkansas law, law firm's conduct in undertaking debt
collections on behalf of creditor could not establish violation of ADTPA, precluding
creditor's vicarious liability even if law firm's intentional conduct could be imputed to
creditor), report and recommendation adopted, No. 3:13-cv-00179-SWW (E.D. Ark.
Aug. 7, 2013).
III.
For the foregoing reasons, the Court denies Roper’s motion for partial summary

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In her complaint, Roper states that “Defendant Withrow also conducts the business of a
debt collector and at times the actions taken by Defendant are either not those of an attorney or
they are actions consisting of the blended duties of debt collector and attorney.” Compl. ¶ 9.
Roper, however, does not identify anything indicating that any of the actions taken by Withrow
in undertaking the debt collection on behalf of Portfolio were not those of an attorney engaged in
the practice of law.
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judgment.9
IT IS SO ORDERED this 5th day of October 2015.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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On September 18, 2015, Portfolio filed a motion for leave to file a sur-reply to address
what it claimed were misrepresentations of fact and law in Roper’s reply to Portfolio’s response
to Roper’s motion for partial summary judgment. Portfolio attached to its motion a copy of the
proposed sur-reply as “Exhibit A.” After reviewing the proposed sur-reply, the Court, by order
entered September 24, 2015, granted Portfolio’s motion (the Court in that same order also
granted Roper leave to file an amended reply). However, the sur-reply subsequently filed by
Portfolio differs from its earlier proposed sur-reply in several respects, including the addition of
a section addressing for the first time what it claims was litigation conduct that is unreasonable
and oppressive and requesting that the Court exercise its inherent authority to award Portfolio its
reasonable attorney fees incurred in responding to and opposing Roper’s motion for partial
summary judgment. Because this section was not included in the proposed sur-reply which the
Court relied upon in granting Portfolio’s motion for leave to file a sur-reply, the Court does not
consider Portfolio’s request for attorney fees incurred in responding to and opposing Roper’s
motion for partial summary judgment. Moreover,“[a]s a general rule, courts in the Eighth
Circuit will not consider arguments raised for the first time in a reply brief.” Hanjy v. Arvest
Bank, — F.Supp.3d —, 2015 WL 1246186, at *4 (E.D. Ark. March 31, 2015).
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