BOGATSCHOW v. CF MEDICAL LLC et al

Filing 29

ORDER DENYING 18 Motion for Summary Judgment. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 11/18/2021. (kat)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROMAN BOGATSCHOW,
Plaintiff,
v.
CF MEDICAL LLC, et al.,
Defendants.
__________________

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CIVIL ACTION NO. 5:20-CV-59 (MTT)

ORDER
Defendants CF Medical, LLC and The Law Offices of Mitchell D. Bluhm &
Associates, LLC have moved for summary judgment on Plaintiff Roman Bogatschow’s
claims arising from the attempted collection of an unpaid medical debt. Doc. 18. For
the following reasons, the defendants’ motion for summary judgment is DENIED.
I. BACKGROUND 1
On January 4, 2016, Bogatschow underwent a medical procedure at Jupiter
Medical Center. Docs. 20-2 ¶¶ 2-3; 28-1 ¶¶ 2-3. Jupiter Medical Center and the doctor
who performed the procedure billed Bogatschow’s insurance company, and after the
procedure, Bogatschow received an explanation of benefits from his insurance
company that explained Jupiter Medical Center and the doctor had been paid in full.
Docs. 20-2 ¶¶ 7-8; 28-1 ¶¶ 5-8. The explanation of benefits had a line item for

Unless otherwise stated, 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).
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“anesthesia” that appeared to show the anesthesia Bogatschow received was covered
by his insurance. Docs. 20-2 ¶ 9; 28-1 ¶ 9. Bogatschow did not receive any other
medical bills from the medical procedure. Doc. 20-2 ¶ 10.
In his complaint, Bogatschow alleged that he received anesthesia from Jupiter
Anesthesia Associates and was billed by that company. Doc. 1 ¶¶ 22-23. Bogatschow
subsequently clarified, however, that he believed the “anesthesiologist was provided by
Jupiter Medical Center and [he] was billed by Jupiter Medical Center.” Doc. 20-1 ¶ 1.
Moreover, Bogatschow states that he never received an invoice, statement, or bill from
Jupiter Anesthesia Associates. Docs. 20 ¶ 1; 20-3 ¶¶ 8-13. In other words, he did not
know that he owed any money to Jupiter Anesthesia Associates for the medical
procedure. 2
On January 4, 2019, three years after the medical procedure, Bogatschow
received a letter from Defendant Mitchell D. Bluhm & Associates (“Bluhm”) that claimed
Bogatschow owed $2,016.00 to CF Medical LLC. Docs. 20-2 ¶¶ 15-16; 28-1 ¶¶ 15-16.
The letter stated that Jupiter Anesthesia Associates had sold the debt to CF Medical
LLC. 3 Docs. 18-2 ¶ 9; 20-2 ¶ 9; 20-10 at 2. The letter further stated that CF Medical
had tasked Bluhm with collecting the debt. Doc. 20-10 at 2. The last paragraph of the
letter stated that “[t]his is an attempt to collect a debt. Any information obtained will be
used for that purpose. This communication is from a debt collector.” Id.

In fact, Bogatschow claims that he never owed money to Jupiter Anesthesia Associates at all. Doc. 20
at 1.
2

3 Bogatschow disputes this fact because he was only informed that CF Medical “acquired” the Jupiter
Anesthesia Associates debt and not that it was “sold” to them. Doc. 20-1 ¶ 9. Both parties engaged in
this sort of nitpicking. And while the Court is at it, Bogatschow’s closing argument-style-brief is not at all
helpful. Counsel should save the hyperbole for the jury.

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Bogatschow called Bluhm, who told Bogatschow that his insurance company
should call Bluhm’s insurance department, so Bogatschow had his insurance company
call Bluhm. Docs. 20-2 ¶¶ 27-28, 30; 28-1 ¶¶ 27-28, 30. Bogatschow was then
informed that his insurance company never received or paid a bill from Jupiter
Anesthesia Associates. Docs. 18-2 ¶¶ 11-12; 20-1 ¶¶ 11-12.
Bogatschow disputed the validity of the debt, and Bluhm responded with a letter
on February 20, 2019. Docs. 18-2 ¶ 18-19; 20-1 ¶¶ 18-19. The nature and purpose of
this letter is critical because Bogatschow filed suit on February 17, 2020, and the
February 20, 2019 letter is the only communication within the Fair Debt Collection
Practices Act’s (“FDCPA”) one-year statute of limitations. The defendants argue that
the February 20 letter was simply a letter responding to Bogatschow’s request for debt
validation. Doc. 28-1 ¶¶ 34-43. Bogatschow argues that it was a debt collection letter
in violation of the FDCPA. Doc. 20-2 ¶¶ 34-43. The letter stated that:
[Bluhm] received [Bogatschow’s] dispute regarding the validity of the
above-referenced account(s). Enclosed is the verification of debt we
obtained from the current creditor, CF Medical LLC. The verification is
labeled “statement of account” and sets forth the outstanding balance for
services rendered by the medical provider stated above. The outstanding
balance is the obligation of the responsible party for the account(s).
The medical provider sold the account(s) to CF medical LLC and removed the
balance from its records. An itemization of medical services we obtained from
the medical provider is also enclosed as a courtesy, which reflects a balance of
$0 because the medical provider sold the account(s). The balance that was
purchased by CF Medical LLC is the obligation of the responsible party for the
account(s).
This communication is from a debt collector. This is an attempt to collect
a debt and any information obtained will be used for that purpose.
Doc. 1-1 at 1.

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The defendants argue that summary judgment is appropriate because the
February 20 letter, although it stated that it was a “communication … from a debtor
collector” and was “an attempt to collect a debt,” was not a communication in
connection with collecting a debt and thus it could not have violated the FDCPA. Docs.
28-1 ¶¶ 38-40.
II. STANDARD
A court must grant summary judgment “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.” Fed. R. Civ. P. 56(a). A factual dispute is not genuine unless, based on
the evidence presented, “‘a reasonable jury could return a verdict for the nonmoving
party.’” Info. Sys. & Networks Corp. v. Cty. of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th
Cir. 1991)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant
may support its assertion that a fact is undisputed by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A). “When the nonmoving party has the burden of proof at trial, the moving
party is not required to ‘support its motion with affidavits or other similar material
negating the opponent's claim[]’ in order to discharge this ‘initial responsibility.’” Four
Parcels of Real Prop., 941 F.2d at 1437-38 (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). Rather, “the moving party simply may ‘show[ ]—that is, point[ ] out to
the district court—that there is an absence of evidence to support the nonmoving party’s

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case.’” Id. (alterations in original) (quoting Celotex, 477 U.S. at 324). Alternatively, the
movant may provide “affirmative evidence demonstrating that the nonmoving party will
be unable to prove its case at trial.” Id.
The burden then shifts to the non-moving party, who must rebut the movant’s
showing “by producing … relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011)
(citing Celotex, 477 U.S. at 324). The non-moving party does not satisfy its burden “if
the rebuttal evidence ‘is merely colorable, or is not significantly probative’ of a disputed
fact.” Id. (quoting Anderson, 477 U.S. at 249-50). Further, where a party fails to
address another party’s assertion of fact as required by Fed. R. Civ. P. 56(c), the Court
may consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2).
However, “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge …. The
evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson, 477 U.S. at 255.
III. DISCUSSION
A. The Scope of Bogatschow’s Claims
First, the parties disagree about the scope of Bogatschow’s claims. The
defendants argue that Bogatschow’s complaint, which was never amended, rests only
on his allegation that his insurance company paid the bill from Jupiter Anesthesia
Associates, the debt now in question. Doc. 18-1 at 8-11. The defendants argue it is
now undisputed that the insurance company did not pay Jupiter Anesthesia Associates
and thus summary judgment is appropriate. Specifically, Bogatschow’s complaint

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alleges that “at all times relevant to this action, Plaintiff’s insurance company had fully
compensated Jupiter Anesthesia Associates for the services rendered on January 4,
2016.” Doc. 1 ¶ 38. And it is now undisputed that “Bogatschow’s insurance told him
they did not receive a bill from Jupiter Anesthesia Associates and did not pay them.”
Doc. 20-1 ¶ 4. However, Bogatschow’s complaint also broadly alleged that he “did not
owe a balance to Jupiter Anesthesia Associates,” and the defendants were not
authorized to collect the debt. Doc. 1 ¶¶ 37, 47-48. Disproving Bogatschow’s allegation
that his insurance company paid the bill does not disprove Bogatschow’s broader
allegation that he never owed Jupiter Anesthesia Associates a debt. See id. ¶ 37. The
crux of Bogatschow’s case is that the defendants attempted to collect a debt from him
that he did not owe. Merely establishing that his insurance company never paid a bill
does not prove that the bill was valid.
Indeed, there is evidence the insurance company received and paid a bill from
Jupiter Medical Center for “anesthesia” services rendered on January 4, 2016. Doc. 209. The defendants ignore this evidence. Perhaps if the defendants had established that
the payment of Jupiter Medical Center’s bill for “anesthesia” was not a payment for
anesthesia services rendered by Jupiter Anesthesia Associates, the result may be
different. But for now, the defendants have not established as a matter of law that
Bogatschow “owe[d] a balance to Jupiter Anesthesia Associates.” See Doc. 1 ¶ 37.
B. Whether the February 20 Letter was a Communication Within the Purview of
the 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, a plaintiff must prove that (1) she has been the object of

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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).
In relevant part, the FDCPA prohibits “[t]he false representation of the character,
amount, or legal status of any debt.” 15 U.S.C. § 1692e(2)(A). The FDCPA also
prohibits collecting or attempting to collect “any amount … unless such amount is
expressly authorized by the agreement creating the debt or permitted by law.” 15
U.S.C. § 1692f(1). Bogatschow alleges that the February 20 letter from the defendants
misrepresented the character and status of the debt and was an effort by the
defendants to collect an amount they were not authorized to collect. Doc. 1 ¶¶ 37, 47.
As a threshold, the FDCPA only applies to communications that convey information
about a debt and are aimed at least in part at inducing a debtor to pay. Caceres v.
McCalla Raymer, LLC, 755 F.3d 1299, 1302 (2014).
The defendants argue that the February 20 letter does not fall under the purview
of the FDCPA because it was not an attempt to collect a debt. Doc. 18-1 at 12. The
defendants state that the February 20 letter “makes no payment demand, does not
contain any instructions on how to make a payment, contains no settlement offers, does
not include a payment coupon or payment envelope, makes no suggestion of any

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potential consequences of nonpayment, [and] makes no mention of credit reporting.” Id.
at 15.
The February 20 letter, which was sent in response to Bogatschow’s dispute and
demand for verification of the debt, listed the name of the original creditor, account
number, amount owed, contact information for the defendants, and stated in part:
We received your dispute regarding the validity of the above-referenced
account(s). Enclosed is the verification of debt we objected from the
current creditor, CF Medical LLC. The verification is labeled “statement of
account” and sets forth the outstanding balance for services rendered by
the medical provider stated above. The outstanding balance is the
obligation of the responsible party for the accounts(s).
...
This communication is from a debt collector. This is an attempt to collect
a debt and any information obtained will be used for that purpose.
Doc. 1-1 at 1.
A communication may have multiple purposes, and a communication that informs
a debtor of the creditor’s rights and intentions can also be for the purpose of collecting a
debt. Reese, 678 F.3d at 1217. The Eleventh Circuit has not laid out a bright-line rule
to determine whether a given communication is made for collecting a debt, but many
factors have been identified as useful in the analysis. 4 Factors that courts have
weighed in this analysis include “(1) the nature of the relationship between the parties;
(2) whether the communication expressly demanded payment or stated a balance due;
(3) whether it was sent in response to an inquiry or request by the debtor; (4) whether

Both parties urge the Court to apply the “least sophisticated consumer” standard to determine whether
the February 20 letter was an attempt to collect a debt. Docs. 20 at 8; 18-1 at 12 (“The key question is
whether the least sophisticated consumer, taking the conversation in its entirety, would believe that the
debt collector was attempting to induce payment on a debt.”). However, that standard appears to be
used to determine whether a communication violated the FDCPA, not the threshold question of whether
the statute applies. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193-94 (11th Cir. 2010); Caceres
v. McCalla Raymer, LLC, 755 F.3d 1299, 1303 (11th Cir. 2014); but see McGee v. Piper Fin. Servs., LLC
2020 WL 5548779, at *7 (N.D. Ga. July 7, 2020). The defendants have not argued that the February 20
letter, assuming that the FDCPA applies, did not violate the statute.
4

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the statements were part of a strategy to make payment more likely; (5) whether the
communication was from a debt collector; (6) whether it stated that it was an attempt to
collect a debt; and (7) whether it threatened consequences should the debtor fail to
pay.” McElveen v. Westport Recovery Corp., 310 F. Supp. 3d 1374, 1380 (S.D. Fla.
2018) (quoting Bohringer v. Bayview Loan Servicing, LLC, 141 F. Supp. 3d 1229, 124041 (S.D. Fla. 2015)).
In Pinson v. Albertelli Law Partners LLC, the Eleventh Circuit highlighted material
differences in letters that did and did not constitute communications sent in connection
with the collection of a debt. 618 F. App’x 551, 553-54 (11th Cir. 2015). The first letter,
which did not fall under the purview of the FDCPA:
acknowledged receipt of [the plaintiff’s] “Request for Validation” of his
loan, informed him that the firm was preparing payoff and reinstatement
letters, and asked him to re-send an attachment that had been omitted
from his first letter. There was no reference to the amount owed, no
implicit or explicit demand for payment, and not discussion of
repercussions if payment was not tendered. The intent of the letter was to
obtain the form [the plaintiff] forgot to attach; it was not an attempt to
collect a debt.
Id. Two other letters, which the Eleventh Circuit held were sent in connection with the
collection of a debt and therefore fell under the purview of the FDCPA:
contained an implicit demand for payment, because they stated the
amount of the debt, described how the debt could be paid, and informed
[the plaintiff] how he could tender payment. One letter stated that fees
and costs would continue to increase if [the plaintiff] failed to reinstate the
loan immediately. Both letters were communications sent in connection
with the collection of a debt.
Id. at 554.
The defendants have not established as a matter of law that the February 20
letter was an attempt to collect a debt. First, the letter stated that it was from a debt

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collector and was “an attempt to collect a debt[.]” Doc. 1-1 at 1. While this language is
not dispositive, it certainly suggests the letter was intended to collect a debt.
The February 20 letter also listed the amount owed. The defendants argue that
the letter did not make a payment demand. Doc. 18-1 at 15. But the letter stated that
the amount due was $2,016.00, Roman Bogatschow was the responsible party, and
that “the outstanding balance is the obligation of the responsible party for the
account(s).” Doc. 1-1. After stating that Bogatschow is responsible for the outstanding
balance, the letter repeats itself three sentences later and states, “[t]he balance … is the
obligation of the responsible party.” Id. So, while the letter does not explicitly demand
payment from Bogatschow, the letter does list the amount owed and states twice that
Bogatschow is responsible for it.
True, the letter did not expressly threaten consequences if Bogatschow did not
pay the debt, but consequences were implied—the letter was from a lawyer tasked with
collecting a debt. The letter also did not explain the method by which Bogatschow
should pay for the debt. But the letter did list Bluhm’s phone number, hours of
operation, and address. Doc. 1-1. Finally, the defendants argue that the letter was
merely a “Verification Response Letter, which Bluhm sent to [Bogatschow] in response
to [Bogatschow’s] dispute and request for verification of the debt.” Doc. 18-1 at 14. But
a “communication can have more than one purpose, for example, providing information
to a debtor as well as collecting a debt.” McGee v. Piper Fin. Services, LLC, 2020 WL
5548779, at *6 (N.D. Ga. July 7, 2020) (citing Caceres, 755 F.3d at 1302; Reese, 678
F.3d at 1217). This appears to be such a multi-purpose communication.

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Thus, because the letter says that it is an attempt to collect a debt, lists the
amount owed, names Bogatschow as the party responsible for the amount owed, and
was sent from a law office tasked with collecting the debt, the Court cannot rule as a
matter of law that the February 20 letter was not a communication sent in connection
with the collection of a debt. Accordingly, the defendants’ motion for summary judgment
as to Bogatschow’s FDCPA is DENIED.
C. Bogatschow’s State Law Claims
The defendants have also moved for summary judgment on Bogatschow’s claims
pursuant to the Georgia Fair Business Practices Act (“GFBPA”) and the Unfair and
Deceptive Practices Toward the Elderly Act (“UDPTEA”). Doc. 18-1 at 17. Both parties
agree that the survival of Bogatschow’s state law claims hinges on his FDCPA claim.
Id.; Doc. 20 at 7. 5 Because the Court denied the defendants’ motion for summary
judgment on Bogatschow’s FDCPA claim, their motion for summary judgment as to his
state law claims is also DENIED.
IV. CONCLUSION
For the reasons stated above, the defendants’ motion for summary judgment
(Doc. 18) is DENIED.
SO ORDERED, this 18th day of November, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

Specifically, the defendants state that a violation of the FDCPA may be a violation of the GFBPA, but
because Bogatschow’s FDCPA claims fail, his GFBPA claims should also be dismissed. The defendants
also state that Bogatschow’s UDPTEA claim is derivative of his GFBPA claim and that it too fails if his
FDCPA claim fails. Doc. 18-1 at 17.

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