Ebanks v. Old Republic Equity Credit Services, Inc.
Filing
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Findings of Fact and Conclusions of Law. The Clerk is directed to enter judgment in favor of Defendant, Old Republic Equity Credit Services, Inc., and thereafter close this case. Defendant's Motion for Directed Verdict (Dkt. 56 ) is denied as moot. Signed by Magistrate Judge Julie S. Sneed on 12/16/2016. (JR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTINA EBANKS,
Plaintiff,
v.
Case No: 8:15-cv-2073-T-JSS
OLD REPUBLIC EQUITY CREDIT
SERVICES, INC.,
Defendant.
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FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS MATTER is before the Court on Plaintiff’s Complaint against Defendant, Old
Republic Equity Credit Services, Inc. (“Old Republic”), alleging a violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p. (Dkt. 1.) Defendant answered
and denied Plaintiff’s claims. (Dkt. 6.) The Court held a bench trial in this matter on December
2, 2016. For the reasons stated below, judgment is entered in favor of Defendant.
BACKGROUND
Under the FDCPA, debt collectors must provide consumers with written notice of specific
information related to the debt either in the initial communication with the consumer in connection
with the collection of the debt or within five days after the initial communication. 15 U.S.C. §
1692g(a). If a debt collector fails to provide such notice, the consumer may bring an FDCPA
action “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).
In this case, Christina Ebanks testified that she received a telephone call in March 2009
from Old Republic concerning an alleged debt. Ms. Ebanks alleges that Old Republic failed to
send her written notice of the information related to the debt as required by Section 1692g(a) within
five days of the telephone call. Because the initial communication, and the alleged subsequent
violation, occurred in 2009, the Court concludes that Ms. Ebanks’s claim is barred by the statute
of limitations. Moreover, because Old Republic sent a proper written notice to Ms. Ebanks, the
Court concludes that Old Republic did not violate the FDCPA.
FINDINGS OF FACT
Plaintiff, Christina Ebanks, is a consumer, as defined in the FDCPA. Defendant, Old
Republic Equity Credit Services, Inc., is a debt collector, as defined in the FDCPA, who attempted
to collect an alleged debt from Ms. Ebanks in connection with the short sale of Ms. Ebanks’s
home.1 In March 2009, Ms. Ebanks received a telephone call from a representative employed by
Old Republic. The representative informed Ms. Ebanks that she owed a debt and demanded
payment of the alleged debt. The representative did not specify a method of payment, but he did
provide a mailing address where payments could be sent. In a letter addressed to Ms. Ebanks dated
March 25, 2009, Old Republic provided Ms. Ebanks with information regarding the alleged debt.
Subsequently, Ms. Ebanks made several payments to Old Republic, totaling $1,150. Ms.
Ebanks sent each payment by mail to the address provided by Old Republic’s representative.
Ultimately, upon questioning her obligation to make such payments, Ms. Ebanks sent two letters
to Old Republic requesting a refund. On September 8, 2015, Ms. Ebanks filed a complaint against
Old Republic, alleging violations of Section 1692g of the FDCPA (Count I), Section 1692d of the
FDCPA (Count II), and Section 559.72 of the Florida Consumer Collection Practices Act
(“FCCPA”), Fla. Stat. §§ 559.55–.785 (Count III). (Dkt. 1.)
In July 2016, Old Republic’s Motion for Summary Judgment was granted as to Counts II
and III and denied as to Count I. (Dkt. 30.) In Count I, Ms. Ebanks alleges that Old Republic
violated Section 1692g of the FDCPA by failing to provide her with a debt validation letter as
1
The preceding facts are undisputed. (Dkt. 6 ¶¶ 6, 7, 28, 61, 62.) Additionally, Old Republic admits that it was
obligated to provide Ms. Ebanks with a validation-of-debts notice under Section 1692g(a). (Dkt. 6 ¶ 64.)
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required under Section1692g(a). (Dkt. 1 ¶¶ 60–65.) A one-day bench trial was held before the
undersigned on this matter on December 2, 2016.
CONCLUSIONS OF LAW
The FDCPA is a consumer protection statute, Crawford v. LVNV Funding, LLC, 758 F.3d
1254, 1257 (11th Cir. 2014), that imposes civil liability on debt collectors for certain prohibited
debt collection practices, Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573,
576 (2010). In particular, the “Validation of Debts” provision of the FDCPA requires debt
collectors to provide consumers with written notice of the criteria set forth in 15 U.S.C. § 1692g(a)
either in the initial communication with a consumer or within five days after the initial
communication, providing:
Within five days after the initial communication with a consumer in connection
with the collection of any debt, a debt collector shall, unless the following
information is contained in the initial communication or the consumer has paid the
debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within
the thirty-day period that the debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of a judgment against the
consumer and a copy of such verification or judgment will be mailed to the
consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day
period, the debt collector will provide the consumer with the name and address
of the original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a).
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A. Statute of Limitations
The protections of Section 1692g are triggered when a debt collector makes an “initial
communication” with a consumer. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1272
(11th Cir. 2016). The FDCPA “provides no definition of initial communication,” Caceres v.
McCalla Raymer, LLC, 755 F.3d 1299, 1302 (11th Cir. 2014), but it defines communication
broadly as “the conveying of information regarding a debt directly or indirectly to any person
through any medium,” 15 U.S.C. § 1692a(2), including telephone calls and letters. See Caceres,
755 F.3d at 1303 (letter); Ponce v. BCA Fin. Servs., Inc., 467 F. App’x 806, 807 (11th Cir. 2012)
(telephone call). An action to enforce liability created by the FDCPA must be brought “within one
year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). A claim under Section
1692g(a) ripens five days after the initial communication. Maloy v. Phillips, 64 F.3d 607, 608
(11th Cir. 1995).
At trial, Ms. Ebanks testified that Old Republic’s initial communication with her occurred
in March 2009 in the form of a telephone call with a representative from Old Republic. She
testified that the representative informed her that she owed a debt and demanded payment of the
debt, but she was not provided any information regarding the amount owed or the right to dispute
the debt. Therefore, under Section 1692g(a), Old Republic was required to provide Ms. Ebanks
with a written validation-of-debts notice within five days of its telephone call with Ms. Ebanks.
Ms. Ebanks testified that she never received the written notice.
Although Ms. Ebanks does not recall the specific date on which the telephone call with Old
Republic occurred, she testified that it occurred in March 2009 and that she did not receive a
written notice five days later, or at all. Therefore, given Ms. Ebank’s testimony, the deadline for
Ms. Ebanks to bring an action under the FDCPA was, at the latest, April 2010. But Ms. Ebanks
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did not file suit in this case until September 2015. Accordingly, based on Ms. Ebanks’s testimony,
her claim is barred by the FDCPA’s one-year statute of limitations. See Crossman v. Asset
Acceptance, LLC, No. 5:14-CV-115-OC-10, 2014 WL 2612031, at *5 (M.D. Fla. June 11, 2014)
(rejecting the plaintiff’s theory of a continuing FDCPA violation and finding that, in accordance
with other federal court decisions, “the FDCPA’s one-year statute of limitations period . . . does
not continue to run indefinitely”). Nevertheless, as will be discussed below, the evidence presented
at trial establishes that Old Republic’s initial communication with Ms. Ebanks occurred on March
25, 2009, and Old Republic complied with the requirements under Section 1692g(a). And,
regardless of Old Republic’s liability, Ms. Ebanks’s claim is barred by the one-year statute of
limitations.
B. Liability
Section 1692g(a) of the FDCPA provides that a debt collector must communicate to the
debtor, either in the initial communication with a consumer or within five days after the initial
communication, the following information: (1) the amount of the debt; (2) the name of the creditor
to whom the debt is owed; and (3) statements regarding the consumer’s right to dispute the debt,
obtain verification of the debt, or obtain the name and address of the original creditor.2 Newman
v. Ormond, 396 F. App’x 636, 639 (11th Cir. 2010) (citing 15 U.S.C. § 1692g(a)).
The plain language of Section 1692g does not require the debt collector to ensure actual
receipt of the written notice, but it does require the debt collector to send the written notice to a
valid and proper address where the consumer may actually receive the notice. Ponce, 467 F. App’x
at 807–08. Absent proof of mailing, such as certified mail, evidence of routine business mailing
practices is sufficient to show that an item was mailed. United States v. Henry, 920 F.2d 875, 877
2
Under Section 1692g, “a second letter is required only if the initial debt collection letter does not provide required
debt verification information.” Maloy, 64 F.3d at 608.
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(11th Cir. 1991); Kerr v. McDonald’s Corp., 427 F.3d 947, 952 (11th Cir. 2005); see also Mahon
v. Credit Bureau of Placer Cty. Inc., 171 F.3d 1197, 1201 (9th Cir. 1999) (finding the creditor’s
standard business practice sufficient to show the mailing of a validation-of-debts notice under
Section 1692g(a)).
At trial, Old Republic’s judicial collections manager, Frank Lin, testified regarding Old
Republic’s routine mailing practices, which he testified have remained largely unchanged for
several years. Indeed, although Mr. Lin became employed by Old Republic in 2011, he testified
that he conferred with employees employed in 2009 who confirmed that the same mailing practices
were in effect in 2009. Specifically, Mr. Lin testified that Old Republic maintains standard
operating procedures, which apply to incoming and outgoing mail. As it relates to mailing letters
to debtors, Mr. Lin testified that Old Republic’s system generates a letter, which is then placed in
a queue, printed, and placed into envelopes the following day. The software used by Old Republic
to generate letters inserts a standard or form body of text based on the purpose of the letter.
Additionally, Mr. Lin testified that Old Republic maintains electronic records for its debtor
accounts, which show the account activity and collection efforts made on each account. These
electronic records include a mailing log, which shows when letters are mailed and when telephone
calls are placed to debtors, as well as receipts of payment and mail returned as undeliverable. Upon
review of Ms. Ebanks’s account, Mr. Lin testified that he identified an initial communication letter
dated March 25, 2009. He was able to identify the letter as an initial communication based on the
standard body of the letter, which is used in all initial communications with a debtor. The letter
was addressed to Ms. Ebanks’s home address at 2500 Winding Creek Boulevard. (Def.’s Ex. 9.)
At trial, Ms. Ebanks did not deny that she was living on Winding Creek Boulevard in March 2009.
Additionally, the letter contained the amount due; the name of the creditor to whom the amount
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was owed; and the procedures regarding disputing the debt, obtaining verification of the debt, and
contacting the original creditor. (Def.’s Ex. 9.)
According to Mr. Lin, Ms. Ebanks’s account did not show that any mail was returned as
undeliverable. Ms. Ebanks offered no evidence that Old Republic failed to follow its routine
mailing practice in sending her the March 25, 2009, letter. She simply stated that she did not
receive the letter. Additionally, Ms. Ebanks’s inability to identify the specific date on which the
initial communication occurred weighs against her credibility, especially in light of the evidence
presented by Old Republic regarding the March 25, 2009, letter. Therefore, upon consideration,
the Court concludes that Old Republic sent the required validation-of-debts notice to Ms. Ebanks
as required by Section 1692g(a) in its initial communication with Ms. Ebanks. Additionally, the
contents of the March 25, 2009, letter complied with the requirements set forth in Section 1692g(a).
But, even if the Court were to find that the March 25, 2009, letter was not the initial communication
with Ms. Ebanks or that the letter was sent after the statutory five-day period, Ms. Ebanks’s claim
would still be barred by the one-year statute of limitations based on the violation having occurred
in 2009.
Accordingly, it is ORDERED that judgment be entered in favor of Defendant, Old
Republic Equity Credit Services, Inc. The Clerk is directed to enter judgment in favor of Old
Republic and thereafter close this case. Defendant’s Motion for Directed Verdict (Dkt. 56) is
DENIED as moot.
DONE and ORDERED in Tampa, Florida, on December 16, 2016.
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Copies furnished to:
Counsel of Record
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