Higgens v. Trident Asset Management, LLC

Filing 84

JUDGMENT on Partial Findings Closing Case. Motions terminated: 76 MOTION for Relief from Order Granting Pro Hac Admission of Yakkov Saks, Esq. re 75 Order on Motion to Appear Pro Hac Vice, filed by Trident Asset Management, LL C. Signed by Judge Robert N. Scola, Jr on 8/29/2017. (vmz) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Ralph Higgens, Plaintiff,
v.
Trident Asset Management, LLC,
Defendant.

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Civil Action No. 16-24035-Civ-Scola

Judgment on Partial Findings
Plaintiff Ralph Higgens has brought this action against Defendant
Trident Asset Management, LLC, a debt collector, for violations of the Fair Debt
Collection Practices Act (FDCPA). Higgens complains Trident improperly rereported a debt to credit bureaus after he disputed the debt and in doing so
violated various provisions of the FDCPA. After the Court’s order on Trident’s
motion for summary judgment, the sole issue to be determined at trial was
whether Trident violated 15 U.S.C. § 1692e(8).
The parties agree that, under 15 U.S.C. § 1692e(8), once a debt collector
is notified that a consumer’s debt is disputed, the debt collector is required to
so designate the debt when subsequently reporting it to a credit agency. In
February 2016, Trident was referred an account which indicated that Higgens
owed $195 to a creditor. Thereafter Trident reported that debt to various credit
agencies. Higgens insists that Trident received his debt-dispute letter on May
16, 2016 and thus wrongfully re-reported his debt in June. Trident, conversely,
alleges the letter was not received until June 28th and that it therefore was
justified in not marking the debt as disputed until the following reporting
period in July. The parties’ disagreement thus centers on (1) when Higgens
sent, and when Trident received, Higgens’s debt-dispute letter. The parties also
dispute (2) whether Higgens can establish that he suffered any actual damages.
On August 25, 2017, the Court held a non-jury trial. Prior to the trial,
the parties submitted a joint pretrial stipulation (ECF No. 66), as well as their
proposed findings of fact and conclusions of law (ECF Nos. 71, 72.) The Court
has carefully reviewed these submissions. At the close of Higgens’s case in
chief, Trident moved for judgment which the Court construed as a motion
under Federal Rule of Civil Procedure 52(c) for a judgment on partial findings.
After considering the credible testimony and evidence presented by Higgens,
and the applicable law, the Court, as announced on the record, finds that
Higgens failed to carry his burden in establishing that Trident violated

Higgens’s rights under the FDCPA. As a result, the Court finds in favor of
Trident on count one, the only count, of the Complaint.
1. Legal Standard
Under Rule 52(c), “if a party has been fully heard on an issue during a
nonjury trial and the court finds against the party on that issue, the court may
enter judgment against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with a favorable finding on
that issue.” Fed. R. Civ. P. 52(c). A judgment on partial findings must be
supported by separately stated findings of fact and conclusions of law. Id.
“A Rule 52(c) motion may be granted if . . . based on the evidence before
it, the court finds, after resolving the credibility issues and weighing the
evidence, for the defendant.” Denson v. United States, 574 F.3d 1318, 1334 n.
48 (11th Cir. 2009). “In addressing a Rule 52(c) motion, the court does not view
the evidence in the light most favorable to the nonmoving party, as it would in
passing on a Rule 56 motion for summary judgment or a Rule 50(a) motion for
judgment as a matter of law; instead, it exercises its role as factfinder.” United
States v. $242,484.00, 389 F.3d 1149, 1172 (11th Cir. 2004). “[T]he court must
weigh the evidence and may consider the witnesses’ credibility.” Caro-Galvan v.
Curtis Richardson, Inc., 993 F.2d 1500, 1504 (11th Cir. 1993) (citing Chris
Berg, Inc. v. Acme Mining Co., 893 F.2d 1235, 1238 n. 2 (11th Cir.1990).)
2. Findings of Fact
The relevant facts adduced by Higgens are as follows. After becoming of
aware of problems with his credit score, Higgens drafted a letter to Trident,
notifying it that he disputed a debt Trident was trying to collect. Higgens then
faxed the draft to RC Law Group. Someone from RC Law Group returned a
copy of the letter to Higgens. Higgens testified that the only change to the
content of the draft he had initially sent was that RC Law Group added
Higgens’s electronic signature. Additionally, superimposed on the copy of the
letter Higgens received was a United States Postal Service “Certified Mail
Receipt” bearing the tracking number: 7015 0640 0003 2980 8984. Using that
number, Higgens accessed the delivery results online associated with that
tracking code. From what he viewed online, Higgens says he concluded that the
letter had been received by Trident on May 16, 2016. Upon this testimony
alone, however, Higgens was unable to actually link that particular tracking
number to the dispute letter itself. In other words, Higgens was unable to prove
that the dispute letter was actually sent or that Trident received the dispute
letter on May 16th, or any time prior to Trident’s re-reporting the debt in June.

No one from the law firm which purportedly sent the letter testified at the
hearing.
Higgens also testified that he reviewed his credit report six or seven times
throughout the months of June and July in 2016. Although Higgens alleged in
his amended complaint that his credit score had been negatively affected by
Trident’s failure to report his debt as disputed, he was unable to produce
admissible evidence to this effect. He attempted, for example, to submit a copy
of his credit report, however he was unable to properly authenticate it. Higgens
did not provide any other evidence or testimony to support his damages claim.
3. Conclusions of Law
Higgens failed to produce any admissible evidence establishing that: his
dispute letter was ever sent to Trident; Trident ever received the letter; or he
suffered any damages as a result of Trident’s handling of his debt. As the Court
noted in its order on Trident’s motion for summary judgment, so long as
Higgens “present[s] [his documents] through the proper witnesses,” they can
“readily be authenticated and rendered admissible.” (ECF No. 67, 3.) Despite
the Court’s advice, however, Higgens failed to ultimately produce any such
witnesses and therefore was unable authenticate: the copy of the letter that
was allegedly sent to Trident; the report showing the delivery of a tracked
envelope; or his credit report. Additionally, Higgens should have been well
aware of the evidentiary hurdles he faced just based on, for example,
discrepancies Trident pointed out between the copy of the letter Higgens said
was sent and the copy of the letter Trident alleged it ultimately received.
Ultimately, Higgens’s presentation of his case in chief fell far short of
proving his prima facie case.
4. Conclusion and Order
In accordance with the foregoing, the Court grants what it construes to
be Trident’s ore tenus Rule 52(c) motion and therefore enters judgment in favor
of Trident on all claims asserted by Higgens. The Clerk is directed to close this
case. Any pending motions are denied as moot.
Done and ordered at Miami, Florida on August 29, 2017.
_______________________________
Robert N. Scola, Jr.
United States District Judge