CROSS v. SYNTER RESOURCE GROUP LLC

Filing 21

ORDER DENYING 15 Motion for Summary Judgment; and DENYING 16 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 4/10/2019. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ASA CROSS,
Plaintiff,
v.

SYNTER RESOURCE GROUP LLC,

Defendant.

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CIVIL ACTION NO. 5:17-CV-446 (MTT)

ORDER
Defendant Synter Resource Group, LLC and Plaintiff Asa Cross have filed cross
motions for partial summary judgment. Docs. 15; 16. The Plaintiff alleges that the
Defendant violated sections of the Fair Debt Collection Practices Act (“FDCPA”) and
Georgia Fair Business Practices Act (“GFBPA”). Doc. 5. For the following reasons,
those motions (Docs. 15; 16) are DENIED.
I. BACKGROUND 1
This case arises out of the Plaintiff’s charges he incurred from FedEx Freight
after shipping items he sold to ANA Instruments over eBay. In January 2016, the
Plaintiff’s former employer allowed him to take discarded commercial electronic testing
equipment. Doc. 15-5 at 15:5-6, 31:1-33:7, 65:23-67:1. The Plaintiff kept the
equipment in his sister’s garage for a few months while he removed some equipment
parts to build mini-racecars and fans; he advertised the unused portions of the

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Unless stated otherwise, the facts are undisputed and are viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).

equipment for sale on his personal eBay account. Id. at 11:21-13:3; 27:4-13; 69:1-15.
During February and March, the Plaintiff sold pieces of equipment to various buyers,
and the money from those sales was sent to his personal bank account. Doc. 15-5 at
101:5-12. Id. at 71:8-73:10. On May 3, the Plaintiff contacted ANA; ANA agreed to buy
a majority of the equipment and sent money to the Plaintiff’s personal PayPal account,
which PayPal then deposited to the Plaintiff’s personal bank account. Id. at 77:1483:10, 95:17-19, 99:1-101:12; Doc. 15-6 at 17-29. ANA also agreed to pay the cost of
shipping and sent the Plaintiff a FedEx Freight bill of lading. Docs. 15-5 at 83:15-91:21;
15-6 at 22. On May 6, the Plaintiff took the equipment to the FedEx loading dock, and
FedEx shipped the equipment to ANA. Doc. 15-5 at 83:15-91:12. According to the
Plaintiff, after a FedEx employee at the loading dock reviewed the bill of lading, the
employee told the Plaintiff that ANA was responsible for the payment of the shipment,
and that the Plaintiff did not owe FedEx for the shipment. Id. at 91:6-12.
On May 12, FedEx sent the Plaintiff a $1,065.36 invoice for the shipment stating
that payment was due on May 27. Doc. 15-6 at 30-32. The Plaintiff states he did not
receive the invoice and thus did not make the payment. Doc. 15-5 at 101:13-103:4.
After receiving another invoice on July 23, the Plaintiff called FedEx to ask “what was
going on and how [he] owed them anything,” and learned that there was a defect in the
bill of lading that caused FedEx to consider the Plaintiff responsible for the charges. Id.
at 103:16-24; Doc.15-6 at 38. The Plaintiff tried unsuccessfully to contact ANA about
correcting the defect. Doc. 15-5 at 103:16-24. FedEx continued to send the Plaintiff
monthly invoices. Doc. 15-6 at 44-56.

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In November, FedEx placed the Plaintiff’s account with the Defendant, a
receivables management company. Doc. 15-8 at 14. On November 8, the Defendant
sent the Plaintiff a demand letter that complied with the FDCPA and GFBPA. Docs. 155 at 113:19-115:4; 15-6 at 62; 15-8 at 38. On December 5, the Defendant left a
voicemail on the Plaintiff’s cell phone, which said, “Hi this is Dominique[.] I’m calling
from Synter Resource, on behalf of FedEx. I’m trying to contact the accounts payable
regarding an outstanding invoice forwarded to our office for collection.” 2 Doc. 15-8 at
13. On December 8, the Defendant sent a second demand letter. Doc. 15-6 at 63. On
December 11, the Plaintiff sent the Defendant a letter disputing the debt and demanding
verification. Id. at 65-66. The Defendant claims that it never received the Plaintiff’s
letter. Docs. 15-7 at 37:18-22; 16-5. On December 23, the Defendant left another
voicemail with the same message left on December 5. Doc. 15-8 at 13, 38. The
Defendant continued to send demand letters to the Plaintiff until January 2017. Doc.
15-6 at 50-56. On January 17 and January 25, the Defendant left two more voicemails,
both of which said, “[W]e have an important message from Synter Resource Group, this
is a call from a debt collector.” Doc. 15-8 at 13. On February 5, the Defendant closed
the Plaintiff’s account. Doc. 15-7 at 241:11-20.
On November 11, 2017, the Plaintiff filed his complaint, alleging that the
Defendant violated the FDCPA and GFBPA by (1) failing to identify itself as a debt
collector in its December 5 and December 23 voicemails, and (2) failing to cease its
collection efforts after receiving the Plaintiff’s December 11 letter requesting verification

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The Plaintiff understood that the voicemail was an attempt to collect his FedEx debt. Doc. 15-5 at
125:8-22.

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and disputing the debt. Doc. 1. The parties now file cross motions for partial summary
judgment. 3 Docs. 15; 16.
II. SUMMARY JUDGMENT STANDARD
Summary judgment must be granted if “there is no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Johnson v.
Clifton, 74 F.3d 1087, 1090 (11th Cir.1996). Not all factual disputes render summary
judgment inappropriate; only a genuine issue of material fact will defeat a properly
supported motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986).
The moving party “always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact” and that entitle it to a judgment as a matter of law. Celotex, 477 U.S. at
323 (internal quotation marks omitted). If the moving party discharges this burden, the
burden then shifts to the nonmoving party to go beyond the pleadings and present
specific evidence showing that there is a genuine issue of material fact or that the
moving party is not entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(e);
Celotex, 477 U.S. at 324-26. This evidence must consist of more than mere conclusory
allegations or legal conclusions. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.

3 Although not labeled as a motion for partial summary judgment, the Defendant did not move for
summary judgment on the Plaintiff’s Georgia Fair Business Practices Act claim. See generally Doc. 15-2.
The Court will thus construe the motion as a motion for partial summary judgment.

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1991). Ultimately, summary judgment must be entered where “the nonmoving party has
failed to make a sufficient showing on an essential element of [his] case with respect to
which [he] has the burden of proof.” Celotex, 477 U.S. at 323.
III. DISCUSSION
A.

FDCPA
The FDCPA regulates and restricts debt collection practices to prevent “the use

of abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692. To
succeed on a FDCPA claim, the Plaintiff must prove that (1) the Plaintiff has been the
object of collection activity arising from a “consumer debt” as defined by the FDCPA; (2)
the Defendant is a “debt collector” as defined by the FDCPA; and (3) the Defendant has
engaged in an act or omission prohibited by the FDCPA. Reese v. Ellis, Painter,
Ratterre & Adams, LLC, 678 F.3d 1211, 1216 (11th Cir. 2012). “As a remedial statute,
the provisions of the FDCPA are to be construed liberally in favor of the consumer.”
Hart v. Vital Recovery Servs., Inc., 2013 WL 12116580, at *5 (N.D. Fla. 2013) (citing
Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir. 1998)) (other
citation omitted).
The Defendant argues in its motion for partial summary judgment only that the
Plaintiff’s transaction was not a “debt” as defined by the FDCPA. See generally Doc.
15-2. The Plaintiff argues in his motion for partial summary judgment that (1) he is a
consumer; (2) the Defendant is a debt collector; (3) his debt is covered by the FDCPA;
and (4) the Defendant violated two sections of the FDCPA, specifically § 1692e(11) and

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§ 1692g(b). 4 See generally Doc. 16-1. The Defendant does not dispute that it is a debt
collector or that the Plaintiff is a consumer. Doc. 15-2 at 4; see generally Doc. 17. But
the parties have failed to show that there is no genuine issue of material fact that the
Plaintiff’s debt is covered by the FDCPA. Thus, the Court will not address the Plaintiff’s
remaining arguments. See Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 836-37 (11th
Cir. 2010) (“To recover under . . . the FDCPA[,] . . . a plaintiff must make a threshold
showing that the money being collected qualifies as a ‘debt.’”)
The FDCPA defines debt as “any obligation or alleged obligation of a consumer
to pay money arising out of transaction in which . . . the subject of the transaction [is]
primarily for personal, family, or household purposes.” 15 U.S.C. § 1692(a)(5)
(emphasis added). The collection of payments related to business or commercial debts
is excluded from the FDCPA’s coverage. Heintz v. Jenkins, 514 U.S. 291, 293 (1995).
In other words, the debt “must involve consumer transactions to be actionable.” Fuller
v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361, 1367 (M.D. Fla. 2002) (emphasis in
original) (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1372 (11th Cir.
1998)). When considering the purpose of the transaction, courts must “examine the
transaction as a whole” by considering “the purpose for which the credit was extended.”
See Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir. 1980). 5
In Oppenheim v. I.C. System, Inc., Oppenheim sold his personal used laptop to a
buyer via Craigslist. 627 F.3d at 835. Oppenheim “instructed the laptop buyer to make

4 Section 1692e(11) of the Fair Debt Collection Practices Act (“FDCPA”) requires creditors to disclose
certain information when attempting to collect a debt, and § 1692g(b) requires creditors to cease certain
collection activities when a debtor seeks validation of his debt. 15 U.S.C. §§ 1692e(11), 1692g(b).
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Decisions of the Fifth Circuit rendered prior to October 1, 1981 “shall be binding as precedent in the
Eleventh Circuit.” Bonner v. City of Pritchard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).

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payment for the computer by depositing funds into [his] account with PayPal,” an ecommerce business that facilitates money transfers. Id. Oppenheim’s agreement with
PayPal allowed PayPal to reverse a transaction if a payment was invalidated by the
sender’s bank, with Oppenheim bearing the risk of such reversals and being liable to
PayPal for the full amount of the payment and applicable fees. Id. When PayPal
notified Oppenheim that the buyer’s payment was fraudulent, Oppenheim refused to
pay PayPal. Id. at 836. PayPal then hired the defendant, I.C. System, Inc., to recover
the money from Oppenheim, and I.C. violated the FDCPA when it contacted
Oppenheim. Id.
After the district court denied I.C. summary judgment and a jury returned a
verdict for Oppenheim, I.C. appealed the district court’s denial of summary judgment.
Id. The Eleventh Circuit upheld the district court’s denial. Id. at 839. The Eleventh
Circuit reasoned that Oppenheim’s debt did not violate the “consumer purpose”
requirement of the FDCPA because the underlying transaction was the sale of
Oppenheim’s personal computer; the funds from the sale were transferred to
Oppenheim’s personal bank account; Oppenheim did not run a business; and
Oppenheim registered his PayPal account as a personal account, “which the User
Agreement defin[ed] as an account ‘used for non-business purposes and use primarily
for personal, family, or household purposes.’” Id. at 838-39.
In both his motion and his response to the Defendant’s motion, the Plaintiff
argues that, like Oppenheim, the subject of his debt was for a personal purpose
because (1) he used parts of the equipment to build fans and “little race cars” as a
hobby before selling the remainder that he could not use; (2) he did not have a business

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account with eBay; (3) the money he made from the transaction went to his personal
account; (4) he “is not in the business of buying and selling electronics equipment;” and
(5) he did not represent himself as a business to FedEx. Docs. 16-1 at 6-8; 18 at 2, 810 (citations omitted). In both its motion and its response to the Plaintiff’s motion, the
Defendant argues that, unlike Oppenheim, the subject of the Plaintiff’s debt was for a
commercial purpose because he (1) sold “commercial-grade equipment;” (2) “sold it by
advertising the items for sale in a widely-accessed sales forum and engaged with
multiple buyers to complete several sales;” and (3) was “actually operating a business
of buying and selling commercial electronics testing equipment . . . known as a ‘side
hustle.’” Docs. 15-2 at 4-7; 20 at 3 (citations omitted).
When viewing each of the parties’ motions and the undisputed facts in the light
most favorable to the nonmoving party, the Court cannot determine as a matter of law
that the Plaintiff’s debt was for a commercial or consumer purpose. Although the facts
regarding this issue are not in dispute, the inferences drawn from the facts are. Like
Oppenheim, it is undisputed that the Plaintiff had personal eBay and PayPal accounts,
and proceeds from the sale were transferred to the Plaintiff’s personal bank account.
Doc. 15-5 at 101:5-12. But the other factors considered in Oppenheim, including the
purpose of the equipment’s use and whether the Plaintiff intended the sale of the
equipment to be a “side hustle” or to dispose of equipment he found while “dumpster
diving” for mini-racecar parts, are disputed. Compare Doc. 15-2 at 7 with Doc. 16-1 at
1. Accordingly, both parties’ motions for summary judgment regarding the Plaintiff’s
FDCPA claim are DENIED.

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B.

GFBPA
The Plaintiff also moves for summary judgment on his GFBPA claim. Doc. 16-1

at 11-13. A violation of the FDCPA constitutes a violation of the GFBPA. Harris v.
Liberty Cmty. Mgmt., Inc., 702 F.3d 1298, 1303 (11th Cir. 2012) (citing 1st Nationwide
Collection Agency v. Werner, 288 Ga. App. 457, 654 S.E.2d 428 (2007)). The GFBPA’s
definition of a consumer debt is to be construed consistently with interpretations of the
FDCPA. See O.C.G.A. § 10-1-391(b); Gilmore v. Account Mgmt., Inc., 357 F. App’x
218, 219-20 (11th Cir. 2009). Given the contradictory inferences on the issue of
whether the Plaintiff’s obligation is a debt covered by the FDCPA, a material factual
dispute also exists on whether the Plaintiff’s obligation is a debt covered by the GFBPA.
Accordingly, the Plaintiff’s motion for partial summary judgment on his GFBPA claim is
DENIED.
IV. CONCLUSION
The Plaintiff must establish that his obligation to pay the Defendant is a debt
within the meaning of the FDCPA to recover. There is a genuine issue of material fact
of whether the Plaintiff’s obligation to pay the Defendant constitutes a debt within the
meaning of the FDCPA and thus, whether it constitutes a debt within the meaning of the
GFBPA. Accordingly, the Plaintiff’s motion for partial summary judgment (Doc. 16) and
the Defendant’s motion for partial summary judgment (Doc. 15) are DENIED.
SO ORDERED, this the 10th day of April, 2019.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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