GOODWYN v. CAPITAL ONE NA et al

Filing 86

ORDER granting in part and denying in part 45 Motion for Summary Judgment; granting in part and denying in part 49 Motion for Summary Judgment; granting 83 Motion to Certify Interlocutory Appeal. Ordered by US DISTRICT JUDGE CLAY D LAND on 08/28/2015. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
SUZIE GOODWYN,

*

Plaintiff,

*

vs.

*

CAPITAL ONE, N.A., and UNITED
RECOVERY SYSTEMS L.P.,

*

CASE NO. 4:14-CV-219 (CDL)
*
Defendants.
*
O R D E R
Plaintiff

Suzie

Goodwyn

borrowed

Capital One, N.A. to buy a car.
difficulties
federal

and

sought

bankruptcy

The

from

Defendant

She later experienced financial

protection

laws.

money

under

Chapter

bankruptcy

judge

13

of

the

approved

a

payment plan that provided for the full payment of her principal
owed to Capital One plus interest, although the interest was
less

than

the

amount

she

contracted

financing agreement with Capital One.

to

pay

in

her

original

Goodwyn paid all that she

was required to pay under the bankruptcy plan, but she did not
receive a formal discharge because she had previously obtained a
discharge in an earlier Chapter 7 bankruptcy proceeding.
Although Capital One did not object to its treatment during
the Chapter 13 proceeding, it claims that Goodwyn still owes
interest

at

the

original

agreed-upon

rate.

And

after

the

Chapter 13 proceeding concluded, Capital One sought to collect

the

unpaid

interest,

retaining

Defendant

Systems, L.P. as its collection agent.
she

owes

accepted

Capital
the

One

Chapter

anything
13

plan

and
by

United

Recovery

Goodwyn disputes that

argues

failing

that
to

Capital

object

One

to

it.

Goodwyn contends that when she made payments complying with the
bankruptcy

plan,

her

debt

to

Capital

One

was

extinguished.

Consequently, she maintains that Defendants’ continued attempts
to collect the debt violate various federal and state laws that
provide her with a private cause of action against them.
Goodwyn asserts a claim against Capital One under the Fair
Credit
alleges

Reporting
state

Act,

law

15

claims

contract,

conversion,

distress,

negligence

U.S.C.

§

against

intentional
per

se,

1681,

et

Capital

seq.

One

for

infliction

of

violations

of

She

also

breach

of

emotional

Georgia’s

Fair

Business Practices Act, O.C.G.A. § 10-1-390, et seq., and the
Georgia

Racketeer

Influenced

and

Corrupt

Organizations

(“Georgia RICO”), O.C.G.A. § 16-14-1, et seq.

Act

Goodwyn asserts

claims against United Recovery under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, et seq.

And she alleges state

law claims against United Recovery for intentional infliction of
emotional distress, negligence per se, and Georgia RICO.
Defendants filed motions for summary judgment (ECF Nos. 45
& 49), arguing that each of Goodwyn’s claims fails because it is
undisputed that Goodwyn owed the alleged debt.

2

As explained in

the remainder of this Order, however, the present record does
not establish as a matter of law that Goodwyn owed the alleged
debt.
to

Defendants are thus not entitled to summary judgment as

Goodwyn’s

claims

under

the

Fair

Credit

Reporting

Act

or

sections 1692e(2)(A), 1692e(10), and 1692f(1) of the Fair Debt
Collection

Practices

appropriate

on

Act.

Goodwyn’s

Summary
state

law

judgment
claims

is

also
breach

for

not
of

contract, conversion, negligence, and violation of the Georgia
Fair Business Practices Act.
the

present

record

does

The Court does find, however, that

not

contain

sufficient

evidence

to

support Goodwyn’s claims for intentional infliction of emotional
distress, Georgia RICO, or liability under sections 1692e(8) and
1692g(b)

of

the

Fair

Debt

Collection

Practices

Act.

Consequently, summary judgment is granted as to those claims.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

In determining whether a

genuine

Fed. R.

dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

3

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
With

all

reasonable

inferences

construed

in

Goodwyn’s

favor, the record establishes the following.
Goodwyn purchased a 2008 Chevrolet Impala from Bill Heard
Chevrolet

on

July

16,

2008.

Bill

Heard

loaned

Goodwyn

$16,504.61 for the purchase at an interest rate of 20.51%.
loan

required

72

monthly

payments

of

$452.25.

Bill

The
Heard

assigned its rights in the loan to Capital One.
On November 25, 2008, Goodwyn filed a Chapter 13 bankruptcy
petition.

She listed Capital One as a secured creditor holding

a lien on her car.

Goodwyn’s bankruptcy plan provided that she

owed Capital One $18,388 and would pay a 6% interest rate, for
60 monthly payments of $432.00.

Ascension Capital Group, a

vendor for Capital One, filed a sworn proof of claim listing
Goodwyn’s

debt

as

$18,666.44

at

a

20.51%

interest

rate.

A

bankruptcy judge confirmed the plan with the 6% interest rate,
and Goodwyn completed the plan on September 21, 2012.
not

eligible

for

and

did

not

receive

a

discharge

She was
from

the

Chapter 13 bankruptcy because of a 2005 Chapter 7 bankruptcy.
On November 7, 2012, the Chapter 13 trustee filed a report with
the

bankruptcy

court

stating

that

4

Goodwyn

made

all

payments

according to the plan but was ineligible to receive a discharge.
The bankruptcy court ordered that Goodwyn’s Chapter 13 case be
closed on February 19, 2013.

Capital One, however, refused to

send Goodwyn the title to her car.
According to Capital One, Ascension Capital Group notified
it on January 6, 2014 that Goodwyn had not received a discharge
and thus her account was subject to collection.
Dep. 61:22-62:5, ECF No. 42.

Capital One

Capital One then began the process

of re-applying payments Goodwyn made during the bankruptcy in
accordance
contained

with
the

the

20.51%

terms

of

the
rate

interest

original
instead

contract,
of

the

which

6%

rate

approved by the bankruptcy judge for the Chapter 13 plan.

That

process resulted in a loan balance of $9,876.98.
On February 5, 2014, Capital One wrote Goodwyn that her
account was past due in the amount of $7,899.18 and her car
would be repossessed if she did not pay.

Goodwyn called Capital

One and asked that it send her the title to her vehicle because
she paid off her loan in the Chapter 13 bankruptcy.

Capital One

responded that her loan had not been paid off and that the
vehicle

was

subject

proceeding was closed.

to

repossession

now

that

the

bankruptcy

Capital One repossessed Goodwyn’s car on

February 25, 2014 and sold it for $8,500.

It stopped applying

interest to Goodwyn’s account after the repossession.

On March

24, 2014 Capital One sent Goodwyn a letter setting forth its

5

accounting of proceeds and expenses from the sale and stating
that she owed a deficiency balance of $5,237.88.

Capital One

referred

collection.

Goodwyn’s

debt

to

United

Recovery

for

United Recovery wrote Goodwyn that it would be collecting the
$5,237.88 Capital One said she owed.

Goodwyn responded that she

did not owe the debt.
Goodwyn

claims

that

because

of

the

repossession

and

collection attempts, she has trouble sleeping and eating and has
recurring

thoughts

of

her

car

being

taken.

Goodwyn

seeks

damages based on Defendants’ alleged conduct arising from the
collection of a debt she claims she did not owe.
DISCUSSION
Defendants contend that although Goodwyn complied with the
terms of her Chapter 13 plan, she still owed the debt based on
the terms of her original borrowing agreement with Capital One.
Goodwyn

responds

that

her

debt

was

extinguished

completed her payments under the Chapter 13 plan.

when

she

The first

issue the Court must decide is the effect of her Chapter 13 plan
on the debt.
I.

Capital One Accepted Goodwyn’s Chapter 13 Plan
It is undisputed that

Goodwyn

did not receive a formal

discharge after she completed her Chapter 13 plan.

But that

fact is not dispositive of whether her debt was extinguished
when she successfully completed the plan.

6

The central issue is

whether Capital One accepted the plan.

If it did, then it

cannot maintain that the debt is still owed after the plan has
been approved and completed because the debtor and lienholder
can

agree

to

a

debtor’s

11 U.S.C. § 1325(a)(5)(A).1

proposed

treatment

of

a

lien

under

Capital One acknowledges that it did

not file a formal objection to the plan during the Chapter 13
proceeding, and it provided no reason for failing to do so.
Instead, Capital One argues that by filing a proof of claim for
the full amount of the debt at the 20.51% interest rate, which
was contrary to the terms of Goodwyn’s bankruptcy plan, Capital
One objected to the plan and thus retained its lien under 11
U.S.C.

§ 1325(a)(5)(B).

Capital

One

further

contends

that

because it retained its lien, it could exercise its collection
rights, including repossession of the collateral.
The Court must decide this purely legal issue:

Does the

filing of the proof of claim alone constitute an objection such
that Capital One shall not be deemed to have accepted the plan?
The Court finds it does not.

A Chapter 13 debtor must file a

1

Defendants contend that without a discharge, any modification of
Goodwyn’s debt does not survive bankruptcy.
In support of this
assertion, Defendants cite Colbourne v. Ocwen (In re Colbourne), 550
F. App’x 687, 687 (11th Cir. 2013) (per curiam).
In Colbourne, the
creditors objected to the debtor’s motion to value their claims based
on the current appraised value of the real properties rather than
amount outstanding on the mortgages. The bankruptcy court denied the
motion (and the Eleventh Circuit affirmed) because the debtor was
ineligible for discharge and the creditor objected to the cram down.
But Colbourne says nothing about the issue for the Court in this case:
whether a loan modification accepted by a creditor survives
bankruptcy.

7

debt

repayment

§ 1321.

plan

Creditors

U.S.C. § 501(a).

with
may

the

then

bankruptcy
file

a

court.

“proof

of

11

claim.”

11

The proof of claim will be deemed allowed

unless a party in interest objects to the claim.
§ 502(a).

U.S.C.

11 U.S.C.

The bankruptcy court holds a hearing on confirmation

of the plan.

During or before the hearing, a party in interest

may object to confirmation.

11 U.S.C. § 1324(a).

Capital One

did not object to confirmation of Goodwyn’s plan.
Goodwyn’s bankruptcy plan provided that secured creditors
“shall

retain

§ 1325(a)(5).”
¶ 2(k)(c),

their
Mot.

ECF

No.

liens
to

12-2.

as

Dismiss
Section

provided
Ex.

A,

in

11

Chapter

1325(a)(5)

U.S.C.
13

states

plan

that

a

plan’s treatment of an allowed secured claim will be confirmed
if (A) the creditor accepts the plan; (B) “the plan provides
that the holder of such claim retain the lien securing such
claim until the earlier of the payment of the underlying debt
determined under nonbankruptcy law; or discharge under section
1328;”

OR

creditor.

(C)

the

debtor

surrenders

the

11 U.S.C. §§ 1325(a)(5)(A)-(C).

property

to

the

Capital One argues

that Goodwyn attempted to “cram down” its claim with a plan that
did not provide for full payment of Capital One’s claim—and that
Capital One did not expressly agree to the plan.
Capital

One

maintains

that

§ 1325(a)(5)(B)

Therefore,

applies,

which

authorizes a creditor to retain its lien rights until the full

8

payment of the underlying debt or until the debtor receives a
discharge.

Since Goodwyn never received a discharge due to her

ineligibility for one, Capital One argues that it retained its
lien

rights

even

after

the

Chapter

13

proceeding

concluded

because the underlying debt was not paid in full during that
proceeding. Goodwyn argues that § 1325(a)(5)(B) does not apply
here

because

Capital

One

accepted

the

Chapter

13

plan

and

therefore § 1325(a)(5)(A) applies, which means that the debt is
extinguished

as

long

as

the

debtor’s

Chapter

confirmed and the debtor completes the plan.

13

plan

is

The Court finds

Goodwyn’s argument persuasive.
“If a creditor is unhappy with its treatment under the
plan, it must take some affirmative action to timely communicate
its

opposition.”

(Bankr.

M.D.

In

Ga.

2010)

re

Castleberry,

(collecting

437

cases

B.R.
in

705,

support

708-09
of

the

general rule that “a secured creditor’s failure to object to a
Chapter 13 plan may constitute its acceptance of the plan.”).
Capital One points to In re Bateman, in which the court found
that the creditor, “by filing a proof of claim contrary to the
amount indicated in [the debtor’s] first plan, did not indicate
its acceptance of the plan to the detriment of its lien by
declining

to

proceedings.”

further

participate

in

the

confirmation

“Because there was no objection to the proof of

claim, [the creditor] did not need to act further and the claim

9

was ‘deemed allowed.’”

Id.

Capital One thus argues that under

Bateman, § 1325(a)(5)(B) applies, and it was entitled to retain
its lien until “the payment of the underlying debt determined
under nonbankruptcy law.”

11 U.S.C. § 1325(a)(5)(B)(i)(I)(aa).

But Bateman limits its holding to cases involving real property
subject

to

the

§ 1322(b)(2).
case

within

anti-modification

provision

of

11

U.S.C.

Bateman, 331 F.3d at 825 n.4 (“We decide this
the

context

of

the

special

treatment

afforded

mortgage lenders by § 1322(b)(2) and do not express an opinion
as to the result with regard to a general secured creditor.”).
Moreover,

the

applicable

local

bankruptcy

rules

make

it

clear that “[t]he values set by the debtors in their Chapter 13
plans may be adopted by the Court, unless a written objection is
filed

by

the

holder

of

the

secured

claim,

and

evidence

concerning value is presented by the holder of the claim at the
confirmation hearing.

Any allegation of value contained in a

proof

by

of

claim

filed

a

creditor

objection to the debtor’s valuation.”
1(a) (emphasis added).

shall

not

be

deemed

an

Bankr. M.D. Ga. R. 3012-

The Court is convinced that Capital

One’s mere filing of its proof of claim did not constitute an
objection

to

the

confirmation

of

the

Chapter

13

plan.

By

failing to object and by receiving payments under the plan that

10

fully paid the principal amount of the debt plus a reasonable
interest rate, Capital One accepted the plan.2
Since Capital One accepted Goodwyn’s bankruptcy plan, the
plan

could

permanently

modify

her

debt.

Section

1322(b)(2)

allows for modification of rights to creditors, and a “debtor
who is not entitled to a discharge may still permanently modify
a loan in a bankruptcy plan.”

Capital One Auto Fin. Inc. v.

Bolden (In re Bolden), No. 12-14979, 2013 WL 3897048, at *4
(E.D. Mich. July 29, 2013).
closed

without

discharge,

“Because the no-discharge case is
rather

than

dismissed,

the

code

sections that reverse any lien avoidance actions . . . upon
conversion or dismissal are not implicated, and, thus, do not
act to prevent the permanence of the lien avoidance.”
Okosisi,
U.S.C.

451

B.R.

§ 349(b)(1);

(1991)).

90,

100

Dewsnup

(Bankr.
v.

D.

Timm,

Nev.
502

2011)
U.S.

In re

(citing
410,

11

417-18

Thus, a completed Chapter 13 plan retains its binding

effect after a case is closed without discharge.
2

Id.

So once

At the hearing on the summary judgment motion, Capital One suggested
that it cannot be deemed to have accepted Goodwyn’s plan because she
took out the car loan within the 910-day period preceding the filing
of her bankruptcy petition.
Based on the “910 Rule,” a bankruptcy
plan cannot bifurcate a secured creditor’s claim into a secured claim
equal to the actual value of the car and an unsecured claim for the
remainder.
See, e.g., Castleberry, 437 B.R. at 708.
Here, though,
there is no indication that the plan proposed bifurcating Capital
One’s claim into a secured claim and an unsecured claim or that the
bankruptcy court intended to bifurcate the claim.
See generally
Chapter 13 Plan; Order Confirming Plan, ECF No. 17 in Case No. 0841298 (Bankr. M.D. Ga. Mar. 5, 2009). The 910 Rule does not mean that
Capital One cannot accept a plan that modifies its interest rate. See
Castleberry, 437 B.R. at 708.

11

Goodwyn completed her Chapter 13 plan and her case was closed
without

discharge,

permanent,

and

permanent.”

“the

the

provisions

lien

of

the

[modification]

plan
is,

bec[a]me
similarly,

Id. at 100; Monroe v. Seaway Bank & Trust Co. (In

re Monroe), 509 B.R. 613, 629 (Bankr. E.D. Wis. 2014).

The next

issue is whether Goodwyn’s claims remain viable given that she
did not owe the debt that Defendants collected.
II.

Fair Credit Reporting Act Claim
Goodwyn claims that Capital One violated Section 1681s-2(b)

of the Fair Credit Reporting Act by failing to conduct a proper
investigation into her dispute with consumer reporting agency
Equifax

regarding

repossession.
information

Capital

One’s

credit

reporting

of

her

Section 1681s-2(b) requires furnishers of credit

who

are

on

notice

of

a

dispute

to

conduct

an

investigation with respect to the disputed information, review
all

relevant

agency,

and

information
report

the

provided
results

consumer reporting agency.

of

by

the

the

consumer

reporting

investigation

to

the

The furnisher’s investigation must

be reasonable, and summary judgment is only appropriate “if the
reasonableness
question.”

of

the

[furnisher’s]

procedures

is

beyond

Westra v. Credit Control of Pinellas, 409 F.3d 825,

827 (11th Cir. 2005); accord Howard v. Pinnacle Credit Servs.,
LLC, No. 4:09-CV-85 (CDL), 2010 WL 2600753, at *3 (M.D. Ga. June
24, 2010).

12

Goodwyn gave Capital One notice of her dispute by stating
on her Equifax dispute form (and in subsequent letters and phone
calls) that she had paid her car loan in full.
received

Goodwyn’s

dispute

notice,

reviewed

Capital One

its

records,

researched the disposition of Goodwyn’s bankruptcy.
determined

that

Goodwyn’s

Chapter

13

bankruptcy

and

Capital One
had

been

dismissed (thus essentially vacating the Chapter 13 plan) and
that the amount it reported was accurate because Goodwyn had not
paid the debt in full.

Capital One Dep. 99:15-22, 104:5-8.

But

Goodwyn’s bankruptcy was closed after being fully administered
and was not dismissed, so the Court cannot conclude as a matter
of

law

that

reasonable.

Capital

One’s

investigation

was

unquestionably

The Court thus denies summary judgment on this

claim.
III. Fair Debt Collection Practices Act Claims
Goodwyn

alleges

that

United

Recovery

violated:

(1)

15

U.S.C. § 1692e(2)(A) by making false representations as to the
character, amount, or legal status of the deficiency balance it
claims Goodwyn owes; (2) 15 U.S.C. § 1692e(8) by communicating
or

threatening

to

communicate

to

persons

credit

information

about Goodwyn which is known or should be known to be false; (3)
15

U.S.C.

§

1692e(10)

by

using

false

representations

and

deceptive means to collect an alleged deficiency balance and to
obtain other information from Goodwyn; (4) 15 U.S.C. § 1692f(1)

13

by using unfair or unconscionable means to collect or attempt to
collect an alleged deficiency balance which Goodwyn does not
owe; and (5) 15 U.S.C. § 1692g(b) by failing to provide Goodwyn
with

proper

United

verification

Recovery

1692e(10),

and

of

argues
§

the

that

1692f(1)

debt

it

alleges

Goodwyn’s

claims

are

§

she

owes.

1692e(2)(A),

dependent

on

§

Goodwyn

showing she did not owe the deficiency balance, and fail since
the debt was valid.

But since the Court finds the debt was not

valid, summary judgment is denied as to those claims.
A.

15 U.S.C. § 1692e(8)

Section 1692e(8) of the Fair Debt Collection Practices Act
prohibits

communicating

information

that

is

or

known

threatening
or

should

to
be

communicate
known

to

be

credit
false.

Goodwyn argues that United Recovery indirectly communicated her
credit

information

to

a

credit

reporting

agency

when

United

Recovery obtained a copy of Goodwyn’s credit report and used the
telephone numbers from the report to attempt to collect on her
debt.

The

Court

is

not

convinced

that

simply

obtaining

telephone numbers from a credit bureau constitutes communicating
“credit

information.”

Goodwyn

pointed

to

no

evidence

that

United Recovery conveyed any information to a credit reporting
agency regarding a debt it knew was false, and she cited no
authority supporting her assertion that requesting information
from a credit reporting agency constitutes communicating credit

14

information to a credit reporting agency.

United Recovery is

therefore entitled to summary judgment on this claim.
B.

15 U.S.C. § 1692g(b)

Section 1692g(b) of the Fair Debt Collection Practices Act
requires

that

when

consumer

a

disputing

debt

her

collector

debt,

the

receives

debt

notice

collector

must

from

a

“cease

collection of the debt, or any disputed portion thereof, until
the

debt

collector

obtains

verification

of

the

debt,”

provide a copy of the verification to the consumer.

and

Goodwyn

argues that United Recovery’s verification was not satisfactory.
The Fair Debt Collection Practices Act does not define what
constitutes

proper

“verification.”

A

number

of

courts

have

adopted the Fourth Circuit’s standard: “verification of a debt
involves nothing more than that debt collector confirming in
writing that the amount being demanded is what the creditor is
claiming

is

owed;

a

debt

collector

detailed files of the alleged debt.”
174 F.3d 394, 406 (4th Cir. 1999).

is

not

required

to

keep

Chaudhry v. Gallerizzo,
“There is no concomitant

obligation to forward copies of bills or other detailed evidence
of the debt.”

Id.

When United Recovery received Goodwyn’s dispute letter, it
contacted

Capital

One

regarding

the

dispute.

In

response,

Capital One sent documentation of the debt to United Recovery.
That documentation stated the account number and contained a

15

calculation of the deficiency balance, which matched the amount
United Recovery sought to collect.

Based on the documentation,

United Recovery confirmed the amount of the debt, to whom it was
owed, and by whom, and sent that information to Goodwyn with
supporting documentation.
obligations

under

United Recovery thus satisfied its

Chaudhry.

See

Chaudhry,

174

F.3d

at

406

(“[Collector] restated the amount of the inspection fees and
indicated

that

required.”);
Fioritto,
curiam)

the

cf.

amounts

Haddad

PLLC,

were

v.

Alexander,

758

F.3d

that

(noting

correct.

777,

785-86

verification

Nothing

Zelmanski,
(6th

must

Cir.

“provide

more
Danner

2014)
the

is
&

(per

consumer

with notice of how and when the debt was originally incurred or
other

sufficient

notice

from

which

the

consumer

could

sufficiently dispute the payment obligation”).
Goodwyn argues that the verification in Chaudhry provided
more information than United Recovery provided her, including a
transaction summary that actually confirmed the amount of the
debt.

United Recovery’s letter, by contrast, did not include a

transaction summary because Capital One had not yet provided one
to United Recovery.
send

Goodwyn,

provided

Still, the information United Recovery did

including

Goodwyn

“with

the
notice

deficiency
of

how

balance

and

when

calculation,
the

debt

was

originally incurred or other sufficient notice from which [she]
could sufficiently dispute the payment obligation.”

16

Haddad, 758

F.3d at 785-86.

Goodwyn knew what Defendants claimed she owed—

she just disagreed that she owed it.

As such, United Recovery

is entitled to summary judgment on this claim.
IV.

Breach of Contract, Conversion, and Negligence Claims
Given that Goodwyn did not owe the debt and yet Defendants

pursued collection of it, including the repossession of the car,
a

reasonable

jury

could

conclude

that

Defendant

Capital

One

breached its contract with Goodwyn and converted her property.
A reasonable juror could also find that both Capital One and
United Recovery are liable for negligence.

Defendants’ summary

judgment motions as to these claims are thus denied.
V.

Georgia Fair Business Practices Act Claim
Capital

One

seeks

summary

judgment

Fair Business Practices Act claim.

on

Goodwyn’s

Georgia

O.C.G.A. § 10-1-393(a) makes

unlawful “[u]nfair or deceptive acts or practices in the conduct
of consumer transactions and consumer acts or practices in trade
or commerce.”

Private actions are authorized under the Act “so

long as the alleged violation involves the breach of a duty owed
to the consuming public in general and therefore has at least
some potential impact on the consumer marketplace.”

Johnson v.

GAPVT Motors, Inc., 292 Ga. App. 79, 84, 663 S.E.2d 779, 784
(2008).
deceptive

“The act does not encompass suits based upon allegedly
or

unfair

acts

or

practices

essentially private transaction.”

17

Id.

which

occur

in

an

Capital One argues that Goodwyn’s Fair Business Practices
Act claim is based on a private transaction that has no impact
on the consuming public generally.

It contends that the claim

is essentially a breach of contract claim that only involved “an
agreement

between

introduction
commerce.”

of

the

any

parties

act

or

and

did

practice

not

into

involve

the

stream

the
of

Burdakin v. Hub Motor Co., 183 Ga App 90, 90, 357

S.E.2d 839, 841 (1987).

Burdakin held that the Act did not

apply to the negligent repair of a single vehicle when the body
shop represented that the vehicle had been properly repaired
when it had not.
Goodwyn

argues

that

Capital

One’s

deceptive

practice

of

collecting on paid-off debt reasonably has potential to harm the
general

consuming

public.

See

Garner

v.

Academy

Collection

Serv. Inc, No. 3:04-CV-93-JTC, 2005 WL 643680, at *7-*9 (N.D.
Ga. Mar. 11, 2005) (“If Capital One misrepresent[s] consumers’
financial

indebtedness

to

consumers

and

others,

negligently

account[s] for or process[es] consumers’ payments in credit card
accounts, or falsely reports consumers’ credit histories, it is
no

stretch

to

imagine

the

potential

adverse

effect

consumer marketplace and the economy in general.”).

on

the

Goodwyn

produced sufficient evidence to create a genuine factual dispute
as

to

whether

Capital

One’s

alleged

18

actions

would

harm

the

consuming public. Granting summary judgment on this basis is
therefore inappropriate.
VI.

Georgia RICO Claim
Defendants argue that Goodwyn’s Georgia RICO claims fail.

Georgia

RICO

makes

it

“unlawful

for

any

person,

through

a

pattern of racketeering activity or proceeds derived therefrom,
to acquire or maintain, directly or indirectly, any interest in
or

control

of

any

enterprise,

real

property,

or

personal

property of any nature, including money.” O.C.G.A. § 16-14-4(a).
A plaintiff shows racketeering activity by showing “that the
defendant committed predicate offenses . . . at least twice.”
Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1293 (11th Cir.
2006) (per curiam).
RICO

claim

fails

Defendants correctly argue that Goodwyn’s
because

they

did

not

possess

the

intent

required for her to prove the predicate offenses.
Goodwyn identified four alleged crimes serving as predicate
acts to support her Georgia RICO claim: (1) theft by taking,
O.C.G.A. § 16-8-2; (2) theft by conversion, O.C.G.A. § 16-8-4;
(3) mail fraud, 18 U.S.C. § 1341; and (4) wire fraud, 18 U.S.C.
§ 1343.

These are specific intent crimes requiring Capital One

to exhibit intent to commit a particular act toward a particular
purpose.

See Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1227

(11th Cir. 2014); Brown v. State, 302 Ga. App. 641, 643, 692

19

S.E.2d 9, 11 (2010); Calabro v. Liberty Mut. Fire Ins. Co., 253
Ga. App. 96, 97, 557 S.E.2d 427, 429 (2001).
In McGee v. Sentinel Offender Services, LLC, 719 F.3d 1236,
1243 (11th Cir. 2013) (per curiam), a case dealing with the
predicate

act

of

attempt

defendant

corporation

to

showed

commit
that

theft

it

by

sent

deception,

letters

the

demanding

payment to the plaintiff because of a clerical error, not with
intent to deceive the plaintiff into paying money he did not
owe.

The

showing.

plaintiff

did

not

produce

evidence

to

rebut

that

The plaintiff argued that intent could be inferred

because the corporation sent the letters seeking payment after
its attorney should have known that the plaintiff did not owe
any money.
survive

The court rejected that argument and found that to

summary

judgment,

the

plaintiff

would

have

had

to

present evidence that an employee of the defendant “acted with
specific intent to commit theft by deception.”

Id. at 1244.

Here, there is no evidence that any of Defendants’ employees
maintained specific intent to harm Goodwyn.
shows

that

Defendants’

employees

were

At most, the record
wrong

in

their

interpretation of bankruptcy law or careless in checking their
records.

As such, Goodwyn’s Georgia RICO claims fail.

VII. Intentional Infliction of Emotional Distress Claim
To

establish

an

intentional

infliction

of

emotional

distress claim, a plaintiff must show that (1) the defendant’s

20

conduct is intentional or reckless; (2) the conduct is extreme
and outrageous; (3) there is “a causal connection between the
wrongful

conduct

and

the

emotional

emotional distress is severe.
Ga.

App.

376,

377,

519

distress;”

and

(4)

the

United Parcel Serv. v. Moore, 238

S.E.2d

15,

17

(1999).

Goodwyn’s

intentional infliction of emotional distress claim fails because
Defendants’ conduct was not extreme or outrageous.
Extreme and outrageous conduct “must be so serious as to
naturally give rise to such intense feelings of humiliation,
embarrassment,
emotional

fright

distress.”

or

extreme

Id.

The

outrage
conduct

as

to

“must

cause
go

severe

beyond

all

reasonable bounds of decency so as to be regarded as atrocious
and

utterly

intolerable

in

a

civilized

community.”

Id.

Defendants argue that there is no evidence they intentionally or
recklessly

sought

account.

They

to

harm

point

to

Goodwyn
a

case

in

their

finding

handling
that

a

of

her

wrongful

foreclosure was not extreme or outrageous given that there was
some

evidence

property

had

that
not

the

been

defendant’s
validly

security

interest

in

the

extinguished.

Ingram

v.

JIK

Realty Co., Inc., 199 Ga. App. 335, 337, 404 S.E.2d 802, 805
(1991).

Defendants argue that repossessing Goodwyn’s vehicle is

similarly not outrageous because there is some evidence that she
did not pay off her debt during bankruptcy—that is, the lack of
a discharge gave them reason to believe Goodwyn’s debt was not

21

extinguished.

“Sharp or sloppy business practices . . . are not

generally considered as going beyond all reasonable bounds of
decency as to be utterly intolerable in a civilized community.”
Moore,

238

Ga.

App.

at

377,

519

S.E.2d

at

17.

So

while

Defendants may have been wrong and careless in their handling of
Goodwyn’s account, the allegations do not rise to the level of
supporting intentional infliction of emotional distress claims
and summary judgment is therefore appropriate.
CONCLUSION
Defendants’ Motions for Summary Judgment (ECF Nos. 45 & 49)
are granted in part and denied in part.

Because the Court finds

that Goodwyn did not owe a debt after completion of her Chapter
13 bankruptcy, summary judgment is denied as to her breach of
contract and conversion claims.

Summary judgment is also denied

as to her negligence claims and her claims under the Fair Credit
Reporting Act; sections 1692e(2)(a), 1692e(10), and 1692f(1) of
the Fair Debt Collection Practices Act; and the Georgia Fair
Business

Practices

Goodwyn’s

claims

Act.
for

Summary
intentional

judgment

is

granted

infliction

of

as

to

emotional

distress, violation of Georgia RICO, and violation of 15 U.S.C.
§§ 1692e(8) and 1692g(b).
CERTIFICATION FOR INTERLOCUTORY APPEAL
Due to the unusual procedural posture of this case, Capital
One has already filed a motion to certify this Court’s partial

22

denial

of

its

motion

for

summary

appeal under 28 U.S.C. § 1292(b).

judgment

for

interlocutory

The Court actually issued an

oral ruling denying in part and granting in part Defendants’
summary judgment motions at the final pretrial conference on
August

6,

2015

forthcoming.

and

indicated

that

a

written

order

would

be

At the pretrial conference, Capital One asked that

the Court certify for immediate interlocutory appeal that part
of the Order denying summary judgment.

The Court stated that it

did not find immediate appellate review warranted unless Capital
One could demonstrate that by going to trial Capital One would
be waiving its right to maintain that it is not liable as a
matter of law as outlined in its summary judgment motion.

The

Court provided Capital One with an opportunity to brief

the

issue but went ahead and set the case down for jury trial to
begin on September 28, 2015.

Capital One filed the present

motion for immediate interlocutory appeal (ECF No. 83), asking
the Court to reconsider its previous oral statement that it did
not

find

an

immediate

appeal

appropriate.

After

further

reflection and consideration of the parties’ briefs, the Court
reconsiders its previous decision regarding the propriety of an
immediate interlocutory appeal.3

3

No one wants to be wrong, and fewer of us are willing to admit that
we were wrong. But compounding one error with another is worse than
having committed the first one.
Reconsideration is sometimes
warranted. This is one of those times.

23

A court should only certify a case for interlocutory appeal
if all three requirements of § 1292(b) are met: (1) the “order
involves

a

controlling

question

of

law,”

(2)

there

is

“substantial ground for difference of opinion” on the question
of

law,

and

(3)

“an

immediate

appeal

from

the

order

may

materially advance the ultimate termination of the litigation.”
28 U.S.C. § 1292(b).

The key issue presented by Capital One’s

motion for summary judgment is whether Goodwyn owed the debt in
question.

The resolution of that issue presents two pure legal

questions—(1)whether Capital One accepted Goodwyn’s Chapter 13
plan by not making an affirmative objection to the plan (but
instead relying on its proof of claim for the full amount of the
claim)

and

by

receiving

payments

under

the

plan

which

was

approved by the bankruptcy judge and was successfully completed
by

Goodwyn;

and

(2)whether

such

acceptance

extinguished

Goodwyn’s debt to Capital One upon completion of the plan even
though Goodwyn did not receive a formal discharge because she
was

not

eligible

bankruptcy.

for

discharge

due

to

a

prior

Chapter

7

Thus, it is clear that the Court’s Order involves

one or more controlling questions of law.
The Court also finds that these purely legal issues have
not been decided by the Eleventh Circuit, nor by any other Court
as far as this Court’s research has been able to determine.
Court

further

finds

that

legitimate

24

arguments

exist

on

The
both

sides of these issues.

The Court is satisfied that when issues

of first impression are presented for which legitimate arguments
exist on both sides, then a substantial ground for difference of
opinion

exists

for

purposes

of

certifying

an

Order

as

appropriate for immediate interlocutory appeal.
As to whether an immediate appeal will materially advance
the ultimate termination of the litigation depends on how the
Court of Appeals resolves the legal issues previously described.
If the Court of Appeals disagrees with this Court’s ruling and
finds that Goodwyn’s debt was not extinguished based on what
happened during the administration of the Chapter 13 plan, then
Capital One and the other Defendant in this action are likely
entitled

to

judgment

as

a

matter

of

law

as

to

all

claims

asserted in this action.

All of Goodwyn’s claims depend on

whether she owed the debt.

Whether she owed the debt depends on

whether it was extinguished because of the Chapter 13 bankruptcy
proceeding.

If it was not extinguished, Defendants likely had

the right to do what they did.

Affirmance of this Court’s Order

by the Court of Appeals would also likely have a material impact
on the progression of this litigation.

If the Court of Appeals

affirms this Court’s Order, then it is likely that Goodwyn would
be entitled to judgment as a matter of law that she did not owe
the debt, which would establish de facto liability on some of
Goodwyn’s

claims

insofar

as

it

25

will

be

established

that

Defendants pursued a debt that was not owed.

Based on the

foregoing,

appeal

the

Court

finds

that

an

immediate

would

materially advance the ultimate termination of this litigation.
Finding

that

the

requirements

for

an

immediate

interlocutory appeal have been met, the Court certifies this
Order for interlocutory appeal.

The Court further finds that a

stay of the proceedings in this Court pending a decision by the
Court of Appeals on Capital One’s application for an immediate
interlocutory appeal is appropriate.
that

the

Court

of

Appeals

will

The Court is confident

act

expeditiously

on

this

application, and if it is denied, the Court will be prepared to
try

this

case

without

significant

delay.

If

the

Court

of

Appeals decides to allow the interlocutory appeal, then that of
course will result in more substantial delay, but the granting
of the application for immediate appeal would mean that the
Court of Appeals deems an immediate appeal appropriate and any
delay caused by it to be warranted.

Accordingly, the trial

previously scheduled to begin on September 28, 2015 is hereby
canceled.

IT IS SO ORDERED, this 28th day of August, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

26