Lujan v. Global Credit & Collection Corporation

Filing 34

ORDER denying 9 Plaintiff's MOTION for Partial Summary Judgment as to Liability. This matter will be set for a Pretrial Conference and set for forthwith trial by separate minute order, by Judge John L. Kane on 07/19/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 10-cv-02584-JLK-KLM
TRAVIS LUJAN
Plaintiff,
v.
GLOBAL CREDIT AND COLLECTION CORPORATION
Defendant.

ORDER

Kane, J.
Plaintiff Travis Lujan brings this action against Defendant Global Credit Collection
Corporation (Global) alleging that Global violated the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et. seq (FDCPA) when attempting to collect a debt from him. Pl.’s Mot. for Partial
Summ. J. at 1. Mr. Lujan incurred a balance of $949.99 on a Capital One account for what he
alleges were personal, family, or household expenses. Pl.’s Aff. 1 ¶¶ 5-6. The account went into
default with Capital One on October 2, 2010, after which point the account was transferred to
Global1 for collection. Pl.’s Mot. for Partial Summ. J. at 1
Beginning in July 2010, Global representatives began calling Mr. Lujan in attempt to
collect on the Capital One account. Pl.’s Aff. 4 ¶ 30. Mr. Lujan alleges eighteen phone calls
were made to his cellular phone between July 7 and August 17, 2010. Id. at 4-5 ¶¶ 29-45. Apart
from a single conversation on July 21, for which we have a transcript, it is unclear from the

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The parties do not dispute that Global is licensed and operates in Colorado as a debt collector within the meaning of the
FDCPA.

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record if Mr. Lujan answered any of the other calls, and if not, whether Global left any
voicemails.
The July 21, 2010 telephone conversation forms the basis of several of Mr. Lujan’s
claims. Complaint at 4 ¶¶ 33-38. The transcript of that conversation reveals that Mr. Lujan
called Global in response to a call he had missed. Canter Aff. (attached to Def.’s Surresponse
(doc. 33)), Ex. A at 1. A Global representative answered and pulled up Mr. Lujan’s account. Id.
The representative explained that Mr. Lujan had an overdue balance of $949.99 on a Capital One
credit card, which Global was now attempting to collect on behalf of Capital One. Id. Mr. Lujan
expressed concern over whether the debt was being reported to the credit bureau. Id. The
representative equivocated, stating at first that there was a possibility the account was being
reported, quickly clarifying that the account was, in fact, being reported. Id. Mr. Lujan asked
how long the account would be reported. The representative responded, “as long as you still have
the balance, it could be a few months, it could be a year or it could be tomorrow if Capital One
pulls it back and they do something about it.” Tr. at 2. Unsatisfied by this somewhat vague
answer, Mr. Lujan asked when exactly the account would be removed from his credit report. Id.
The representative responded that he did not know. Id.
Mr. Lujan then indicated that he had heard elsewhere that if he refused to pay off the
account, it would eventually “just fall off [his] credit report.” Tr. at 2. The representative
suggested that this was correct, but that it “can be up to 15 years” and that if Mr. Lujan did not
“want to pay it off” it would be marked as a “refusal.” Id. The representative also cautioned that
“it gets worse” the longer Mr. Lujan waits to pay the account off, because the bills “accumulate.”
Id. Mr. Lujan remarked that he “can’t pay the account” and that he is “disputing [the] debt.” At

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this point the representative put Mr. Lujan on hold so he could get his supervisor on the line to
discuss Mr. Lujan’s options in disputing the debt. See id.
When the supervisor, Andrew, got on the line, Mr. Lujan asked again how long the
account would be on his credit report. Tr. at 3. Andrew explained that it would be reported as a
bad debt until it “gets paid off” and that his credit would be negatively impacted as a result of the
debt. Id. Mr. Lujan abruptly responds that he disputes the debt. Id. A brief exchange ensued
regarding the proper procedure for disputing the balance. Id. Andrew explained that Mr. Lujan
would need to send Global a dispute letter so that Global could close the account, and then Mr.
Lujan could then dispute with Capital One directly. Id. Mr. Lujan asked if it was not then
possible to dispute with Global directly. Andrew said this was not possible as Mr. Lujan’s debt
was owed to Capital One. Id.
At the end of the conversation Mr. Lujan asked for Global’s address, which Andrew
provided promptly, and told Andrew “it is not convenient for you to call me during working
hours, so please do not call my cell phone and on my home phone number before 7:00 p.m.” Id.
at 4. Andrew clarified, “on or before 7:00 p.m.?” and assured Mr. Lujan that this would not be an
issue. Id. Andrew provided his name, phone number, and direct extension. Id. As Mr. Lujan
ended the conversation he said, without completing his thought that he was “looking to.” Id.
Andrew asked what he was “looking for.” Mr. Lujan did not address the question, and said he
had to get off the line. Df.’s Ex. A at 4. The conversation ended. Id.
Mr. Lujan filed his Complaint on October 22, 2010. The parties attended their Rule 16
Scheduling Conference on December 30, 2010. A mere four days later, and without waiting for
discovery to commence, Mr. Lujan filed his Motion for Partial Summary Judgment as to
Liability. Global filed a Response on January 24 objecting that Mr. Lujan’s Motion presumed

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facts not inferable at the time. In the interim, the parties scheduled a settlement conference and I
stayed briefing on Plaintiff’s Motion. When no settlement was reached, I ordered the Defendant
to file a Surresponse, and afforded the Plaintiff the opportunity to file a Reply in support of his
Motion. Global’s filing of a substantive surresponse with an affidavit and full transcript that cast
Mr. Lujan’s affidavit—the sole factual support for his claims—into dispute, by itself renders
summary judgment inappropriate. Construing Mr. Lujan’s Motion as a request for a legal
determination that the subject of the debt falls within the purview of the FDCPA, I proceed to
consider whether Mr. Lujan has incontrovertibly established that the debt was incurred
“primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5).

STANDARD OF REVIEW
Summary judgment is appropriate only if there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adamson v.
Multi. Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A fact is material if
it could affect the outcome of the suit under governing law; a dispute of fact is genuine if a
rational jury could find for the nonmoving party on the evidence presented. Id.
On a motion for summary judgment, the moving party bears the burden of demonstrating
there are no genuine issues of material fact that should be decided at trial. Id. at 1145. Where, as
here, the moving party bears the ultimate burden of persuasion at trial, it must come forward
with admissible evidence proving the essential elements of the claim. Id. In deciding whether
the moving party has carried its burden, I do not weigh the evidence and instead must view it and
draw all reasonable inferences in the light most favorable to the nonmoving party. Id.
When the moving party has discharged its burden, the burden of production shifts to the
nonmoving party who must point to holes in the movant’s proof or show a genuine issue of fact
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by submitting evidence. Neither unsupported conclusory allegations nor mere scintilla of
evidence, however, are sufficient to create a genuine dispute of material fact on summary
judgment. See Mackenzie v. City & County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005).
Rather, more than “some metaphysical doubt” as to the material facts must be demonstrated by
the nonmovant to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).

DISCUSSION
Nature of the Debt
In order to pursue a claim under the FDCPA, a Plaintiff must satisfy three threshold
criteria. Most relevant to this motion, he must show that he has been the object of collection
activity arising from debt incurred “primarily for personal, family, or household purposes.” 15
U.S.C. § 1692a(5). As Global indicates, courts require that a party stating a claim under the
FDCPA “plead facts to establish the nature of the debt for substantive reasons – not simply to be
nit-picky.” Dokumaci v. MAF Collection Services, 2010 WL 2560024 at *2 (M.D. Fla. 2010);
see also Sullivan v. CTI Collection Services, 2009 WL 1587588, *2 (M.D. Fla. 2009)
(dismissing complaint on grounds that plaintiff merely recited elements of an FDCPA action
where the complaint simply alleged that plaintiff allegedly owed a debt as that term was defined
by the FDCPA without furnishing any supporting facts). The determination of whether a debt
was incurred “primarily for personal, family or household purposes” is a fact-intensive inquiry to
be resolved on a case-by-case basis, and therefore necessitates consideration of all relevant
factors, including the identity of the individual debtor, and whether the debt was incurred in his
individual capacity for personal purposes. Hansen v. Ticket Track, Inc., 280 F. Supp. 2d 1196,
1203 (W.D. Wash. 2003).
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Mr. Lujan contends his Affidavit establishes the necessary prerequisites for asserting a
claim under the FDCPA. He argues that his Affidavit is unrebutted and that he is therefore
entitled to a legal determination that he has standing to pursue a claim under the Act. Global
demurs, arguing the conclusory nature of Mr. Lujan’s Affidavit precludes such a ruling and that
the factual prerequisite to standing is a question for the jury in this case. I agree.
Mr. Lujan has failed to establish as undisputed fact that his debt was incurred primarily
for personal, family, or household purposes. In neither his Complaint, nor his Affidavit does Mr.
Lujan allege specific facts that indubitably reveal the nature of the debt incurred. Indeed, it was
for this reason that I stayed briefing on Mr. Lujan’s Motion in part to allow supplementation on
the issue.2 Yet, Mr. Lujan, who notably is in the best position to recall exactly what he purchased
on his Capital One credit card, has yet to shed any meaningful light on the nature of the debt, let
alone furnish any concrete record of his transactions.
Indeed, as the Defendant suggests, Mr. Lujan’s responses to the interrogatories are as
unavailing as his Complaint and Affidavit. Mr. Lujan does little more than mimic the statutory
language and provide vague reference to purchases for gas, food, and other similar personal
items, providing no indication of the proportion of purchases that were of this nature, let alone
any specificity. While these allegations may be sufficient to overcome a 12(b)(6) pleading
standard, they are not sufficient to establish as a matter of law that the debt was consumer in
nature. Thus, there remains a factual uncertainty as to whether Mr. Lujan even has standing
under the FDCPA, an uncertainty that is alone a sufficient basis for denying summary judgment.
Therefore, I need not and, in fact, decline to reach Mr. Lujan’s substantive claims under the Act.

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See Order Staying Briefing on Pl.’s Mot. Partial Summ. J. (Doc. 17).
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CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Partial Summary Judgment as to Liability
is DENIED. This matter will be set for a Pretrial Conference and set for forthwith trial by
separate minute order.

DATED: July 19, 2011
s/ John. L. Kane
SENIOR U.S. DISTRICT JUDGE

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