Schroeder v. Meyer

Filing 27

OPINION AND ORDER: DENYING 20 MOTION for Partial Summary Judgment filed by Matthew A Schroeder; GRANTING 18 MOTION for Summary Judgment filed by W Christian Meyer as to Schroeder's claim under 15 U.S.C. § 1692f; GRANTI NG Meyer's 18 Motion for Summary Judgment as to Schroeder's claim under 15 U.S.C. § 1692e to the limited extent that Schroeder claims the state court was deceived or misled; otherwise DENYING 18 Meyer's Motion for Summary Judgment. Signed by Senior Judge James T Moody on 3/31/17. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
MATTHEW A. SCHROEDER,
Plaintiff,
v.
W. CHRISTIAN MEYER,
Defendant.

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No. 4:15 CV 40

OPINION and ORDER
I.

BACKGROUND1
Between December 7, 2011 and March 14, 2014, plaintiff Matthew Schroeder

received medical services at GLHS Surgical Center. (DE # 21-1 at 25.) Schroeder
allegedly incurred a $12,814.16 debt to Unity Surgical Center, which was referred to
defendant Walter Christian Meyer for collection. (Id at 25, 27.) Meyer drafted a dunning
letter concerning this alleged debt, and on May 23, 2014, he sent the letter to 210 N.
Beach Drive in Monticello, Indiana. (DE # 18-3 at 9, 32.) On that same day, Meyer also
sent a request to the United States Post Office (“USPS”) to obtain the specific unit at 210
N. Beach Drive where Schroeder was residing. (DE # 21-1 at 33–34.) USPS responded
that Schroeder resided at 210 N. Beach Drive, Unit B. (Id.) In actuality, Schroeder had
moved from Unit B to Unit A some time in 2013. (DE # 18-1 at 6–7.)

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In the summary that follows, the court refers only to undisputed facts, or, if
there is a dispute, notes that it exists. This summary provides an overview. Additional
relevant undisputed facts will be referred to in the analysis that follows.

Nevertheless, Schroeder received the dunning letter as mailed and attempted to
contact Meyer by phone. (DE # 21-2 at 23, 26.) Defendant’s documents indicate that
Schroeder called Meyer’s office on June 4, 2014, to inform Meyer that he was planning
to move to South Carolina. (Id.) Schroeder then sent Meyer a letter dated June 9, 2014,
disputing the debt and requesting validation. (DE # 21-1 at 32.) In that letter, Schroeder
provided his mother’s phone number, email address, and home address—504 Anchor
Drive, #203, Lafayette, Indiana—which plaintiff referred to as his permanent address.
(DE # 21-2 at 10.) Schroeder also sent a second letter to Meyer, dated June 10, 2014,
which asserted that he was moving to South Carolina as of that date. (Id. at 11.)
On June 18, 2014, Meyer responded to Schroeder’s request by sending a
verification letter to 210 N. Beach Drive, Unit B in Monticello, Indiana. (DE # 21-1 at 33.)
Schroeder alleges that he did not receive the verification because he had moved.
(DE # 21-3 at 6–7.) However, Meyer disputes this and argues that Schroeder may have
received the verification, because the letter may have been forwarded to South
Carolina. (DE # 22 at 2–3.)
In September 2014, Meyer submitted a second request for Schroeder’s address to
USPS. (DE # 21-1 at 62.) USPS responded stating that they showed Schroeder was living
at the same Beach Drive address but in Unit A, instead of Unit B. (Id. at 63.)
On September 25, 2014, Meyer filed a lawsuit on behalf of GLHS Unity Surgery
Center against Schroeder in the Tippecanoe County Superior Court (the “state court”).
(DE # 21-1 at 36.) Meyer attempted to serve Schroeder at 210 N. Beach Drive, Apt. A in
Monticello. (Id. at 39–40.) However, service was not successful because Schroeder did
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not live at that address. (Id.) Meyer never asked Schroeder or his mother for Schroeder’s
new address in South Carolina. (DE # 21-1 at 66–67.)
On December 5, 2014, an alias summons and complaint were attached to the door
at 504 Anchor Drive Apartment 203. (DE # 21-1 at 83.) Schroeder’s mother discovered
the summons and complaint and called her son and advised him of the lawsuit some
time in December 2014. (DE # 18-2 at 8.)
On December 14, 2014, Schroeder sent Meyer a check containing his South
Carolina address. (DE ## 21-1 at 41–42; 21-2 at 21.) Furthermore, on December 18, 2014,
Meyer received Schroeder’s affidavit stating he had never resided at the Anchor Drive
address. (DE # 21-4 at 1–3.) Nevertheless, on December 29, 2014, Meyer filed a motion
for default judgment on behalf of the plaintiff in the state court case. (DE # 1-3.) In that
motion, Meyer wrote that Schroeder had been “duly served with process of this action
pursuant to Trial Rule 4.1 of the Indiana Rules of Trial Procedure.” (Id.) The state court
entered default judgment against Schroeder; however, that court later granted
Schroeder’s motion to set aside the default judgment. (DE ## 21-1 at 83; 24-1.)
On April 16, 2015, Schroeder filed a complaint against Meyer in this court
seeking statutory and actual damages, along with attorney’s fees and costs, for violation
of the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. § 1692. (DE # 1.)
Specifically, he alleges that Meyer violated sections 1692e, 1692f, and 1692g(b) of the
FDCPA. (Id.) On May 2, 2016, Meyer moved for summary judgment on all of plaintiff’s
claims. (DE # 18.) That same day, Schroeder filed a motion for partial summary

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judgment as to liability on his FDCPA claims. (DE # 20). The motions have been fully
briefed and are ripe for ruling.
II.

LEGAL STANDARD
Plaintiff has moved for summary judgment. Federal Rule of Civil Procedure 56

requires the entry of summary judgment, after adequate time for discovery, against a
party “who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment is
appropriate—in fact, is mandated—where there are no disputed issues of material fact
and the movant must prevail as a matter of law. In other words, the record must reveal
that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison,
Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks
omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has met his
burden, the non-moving party must identify specific facts establishing that there is a
genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
In doing so, the non-moving party cannot rest on the pleadings alone, but must present
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fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion
for summary judgment, the court must construe all facts in a light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC
Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).
III.

DISCUSSION
A.

Section 1692g Claim

Schroeder alleges that Meyer violated § 1692g(b) of the FDCPA by engaging in
collection activity without having provided verification of the alleged debt after a
timely request in writing. (DE # 1 at 3.) Section 1692g(b) provides that when a consumer
disputes a debt in writing within thirty days after receipt of notice, “the debt collector
shall cease collection of the debt . . . until the debt collector obtains verification of the
debt . . . and a copy of such verification . . . is mailed to the consumer by the debt
collector.”
It is undisputed that Schroeder disputed the debt, that Meyer mailed a
verification of the debt, and that Meyer continued collection activity—through the filing
of a lawsuit against Schroeder—after Schroeder’s dispute. (DE # 21-1 at 32, 33, 36.)
However, it is also undisputed that Meyer sent the verification letter to 210 N. Beach
Drive, Unit B in Monticello, Indiana, on June 18, 2014, which was after Schroeder had
moved away from that address. (DE # 21-1 at 33.) In his motion for partial summary
judgment, Schroeder argues that Meyer’s mailing of the verification was insufficient to

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satisfy § 1692g(b), and therefore he is entitled to summary judgment on this claim as to
liability. (DE # 21 at 6–10.)
On the other hand, Meyer argues that he satisfied § 1692g(b) by mailing the
verification to the Unit B address, and thus summary judgment is appropriate in his
favor. (DE # 19 at 9–11.) Meyer analogizes the “mail” requirement of § 1692g(b) to the
requirement for the collector to “send” notice under § 1692g(a) and notes that courts
have held § 1692g(a) only requires the debt collector to send the notice, not to establish
actual receipt. Krawczyk v. Centurion Capital Corp., No. 06-C-6273, 2009 WL 395458, at *12
(N.D. Ill. Feb. 18, 2009). Meyer cites to cases from other districts to support the notion
that this “presumption of delivery” applies under § 1692g(a) unless it can be shown
“that the notice was sent to the wrong address and returned as undeliverable.” Phillips
v. NCO Fin. Sys., Inc.., No. 13-CV-15482, 2014 WL 1405217, at *5 (E.D. Mich. Apr. 11,
2014); see also Johnson v. CFS II, Inc., No. 12-CV-01091-LHK, 2013 WL 1809081, at *9 (N.D.
Cal. Apr. 28, 2013). Meyer asks the court to extend these other districts’ holdings to this
district and to apply them to the mailing requirement of § 1692g(b). Since there is no
evidence that the verification was returned as undeliverable, Meyer claims he has
satisfied § 1692g(b).
However, the court disagrees with defendant’s interpretation of § 1692g(b)’s
mailing requirement. When a letter is returned as undeliverable the presumption of
delivery is defeated not because such a return is an inherently significant act on its own,
rather it is because such a return serves to inform the sender that his mailing has failed.
Therefore, the court agrees with Schroeder that these cases from other districts support
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a more general proposition that the presumption of delivery applies absent knowledge
by the sender that the letter did not or will not reach its target. Although in the case at
hand, the verification was not returned as undeliverable, the mailing requirement is not
satisfied if Meyer gained knowledge through some other means that the letter was
undeliverable.
In analyzing Meyer’s motion for summary judgment, the evidence must be
viewed in the light most favorable to Schroeder. Schroeder has presented evidence that
he informed Meyer, through letters and a phone call, that he would no longer be living
in Indiana as of June 10, 2014. (DE # 21-2 at 11, 23, 26.) Accordingly, a reasonable jury
could find that Meyer knew he mailed the verification to the wrong address where
Schroeder would not receive it.
Meyer also argues that Schroeder may have actually received the verification
through forwarding by USPS. (DE # 22 at 2–3.) But this has no impact on plaintiff’s
claim for two reasons. First, there is no direct evidence that the verification was
forwarded. At best, Meyer points to the fact that Schroeder submitted a request to
forward mail from his most recent address, but that was set up for Unit A, not Unit B
where Meyer sent the verification. (See DE # 18-1 at 15.) Second, whether or not
Schroeder actually received the verification through some series of events that occurred
after the mailing has no bearing on Schroeder’s § 1692g(b) claim unless there is evidence
in the record that Meyer believed the verification was forwarded to Schroeder before he

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resumed collection activities. There is no evidence of that sort.2 Since this issue had no
impact on Meyer’s knowledge regarding the mailing, it is irrelevant for Schroeder’s
claim.
Meyer also argues that Schroeder’s claim should not succeed because doing so
would reward plaintiff for “gamesmanship.” (DE # 22 at 7.) Meyer implies that
Schroeder purposely withheld his new South Carolina address in order to evade Meyer
or to create an FDCPA claim. The court disagrees. Schroeder was not attempting to
evade Meyer, in fact he offered his mother’s contact information so that Meyer could
remain in contact with him over the course of the collection process.3 (See DE # 21-2 at
10.)
Even given the above analysis, summary judgment in favor of plaintiff is only
appropriate if no genuine issues of material fact remain. In his deposition, Meyer
testified that he believed Schroeder was living at the Unit B address in Monticello,
Indiana when he sent the verification on June 18, 2014. (DE # 18-3 at 10–11.) This
testimony is material because the § 1692g(b) claim depends upon Meyer’s knowledge
regarding whether the verification was deliverable as mailed. Plaintiff argues that the

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Even if there was evidence that Meyer knew his letter would be forwarded by
USPS, the mailing requirement of § 1692g(b) may require the debt collector to do more
than merely send the verification to an address he knows to be wrong, in reliance on
USPS forwarding. However, the court need not decide this issue here.
3

Meyer argues that sending the verification to Schroeder’s mother would violate
the Health Insurance Portability and Accountability Act (“HIPAA”). (DE # 22 at 7.)
Whether or not that is true, the mother’s contact information could have been used to
request Schroeder’s South Carolina address.
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court should disregard this statement from defendant’s deposition because it is
contradicted by Schroeder’s communications to Meyer describing the move to South
Carolina. (DE # 23 at 3); Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties
tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.”). But here, looking at the
evidence in the light most favorable to Meyer, a reasonable jury could believe Meyer’s
assertion that he thought Schroeder still lived at the Unit B address on June 18, 2014. “It
is not for courts at summary judgment to weigh evidence or determine the credibility of
such testimony; we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618
F.3d 688, 691 (7th Cir. 2010). Because a genuine issue of material fact remains, summary
judgment is not appropriate on this claim in favor of either party.
B.

Section 1692f Claim

Schroeder alleges that Meyer violated § 1692f of the FDCPA in two ways. First,
he alleges that Meyer used an unfair or unconscionable means to collect or attempt to
collect a debt by submitting a summons to the state court containing an address that
was not plaintiff’s and which defendant knew was not plaintiff’s. (DE # 1 at 2.) Second,
he alleges that Meyer used an unfair or unconscionable means to collect or attempt to
collect a debt by filing a motion for default judgment in state court which stated
plaintiff had been properly served when he had not. (Id.)
Meyer puts forth three arguments as to why summary judgment should be
granted in his favor on this claim: (1) 1692f is not an enforcement mechanism for
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matters governed elsewhere by state and federal law; (2) service of process was valid in
the state court suit between GLHS Unity Surgery Center and Schroeder; and, (3)
Meyer’s statement to the court was a legal position which is not actionable under
§ 1692f. (See DE # 19.)
Regarding the first of these arguments, the Seventh Circuit has held that § 1692f
“creates its own rules . . . ; it does not so much as hint at being an enforcement
mechanism for other rules of state and federal law.” Beler v. Blatt, Hasenmiller, Leibsker &
Moore, LLC, 480 F.3d 470, 474 (7th Cir. 2007). “Section 1692f does not take a state-law
dispute and move it into federal court.” Id.; see also Bentrud v. Bowman, Heintz, Boscia &
Vician, P.C., 794 F.3d 871, 875 (7th Cir. 2015) (agreeing with Beler that “[t]he FDCPA is
not an enforcement mechanism for matters governed elsewhere by state and federal
law.”) Additionally, the Seventh Circuit raised the question (although it did not
ultimately reach a conclusion) as to whether § 1692f applies to state court judicial
proceedings at all. Beler, 480 F.3d at 475 (“Subsection (6) . . . says that creditors may not
take ‘nonjudicial’ actions that seize property exempt by law. The implication is that
state court judicial proceedings are outside the scope of § 1692f.”).
Here, Meyer argues that Schroeder’s § 1692f claim raises issues regarding the
service of process which are best handled in the state court, and should not be enforced
through the FDCPA. This position is supported by a Northern District of Illinois case
with similar facts to the case at hand. Webb v. Law Office of Ira T. Nevel, LLC, No. 15 C
01087, 2016 WL 946962 (N.D. Ill. Mar. 14, 2016). In that case, a plaintiff complained that
a defendant had filed fraudulent return of service documents with the state court,
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putting into doubt the adequacy of service. Id. at *1. There, the court found the plaintiff
failed to state a claim under § 1692f. Id. at *6. The court reasoned that Beler warned
against attempts to “piggyback” a claim under § 1692f onto existing state rules of
procedure. Id. (citing Beler, 480 F.3d at 474.)
Like in Webb, Schroeder alleges that the defendant filed false statements with the
state court regarding service. This procedural issue was properly addressed at the state
court level when plaintiff filed a successful motion to set aside default judgment based
on inadequate service. Consequently, the court will follow Beler, Bentrud, and Webb, and
will grant summary judgment on this claim in favor of Meyer.4 Since the court will
grant summary judgment in defendant's favor, plaintiff's motion for partial summary
judgment is denied as to this claim.
C.

Section 1692e Claim

Schroeder alleges that Meyer violated § 1692e of the FDCPA by using a false,
deceptive or misleading means in connection with the collection of a debt by filing a
motion for default judgment in state court that stated plaintiff had been properly served

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Schroeder argues that Beler and Bentrud are distinguishable from the case at
hand. (DE # 23 at 8–9.) To support this notion, Schroeder points to a section of the
Seventh Circuit opinion in Beler which discusses trickery and deception and concludes
that Meyer violated § 1692f even though the defendants in Beler and Bentrud did not
because Meyer engaged in trickery and deception not found in those cases. Id.
However, the section of Beler which Schroeder cites and relies upon is a discussion of
§ 1692e and the false, deceptive, or misleading representations that qualify as violations
under that section of the FDCPA. Beler, 480 F.3d at 473. Therefore, Schroeder's argument
about trickery is misplaced to the extent he intends to distinguish this case from the
holdings of Beler and Bentrud on § 1692f.
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when he had not. (DE # 1 at 2.) Schroeder does not move for summary judgment on this
claim.
Meyer moves for summary judgment on the § 1692e claim, relying on three
arguments. (DE # 19 at 11–16.) Specifically, Meyer argues the following: (1) service of
process was valid in the state court suit between GLHS Unity Surgery Center and
Schroeder; (2) Meyer’s statement to the court was a legal position which is not
actionable under § 1692e; and, (3) communications made by lawyers to state court
judges are not actionable under § 1692e of the FDCPA. (DE # 19 at 11–15.)
First, Meyer argues that service was valid, and therefore Meyer’s
communications to the court were not false, deceptive, or misleading. Schroeder
counters that res judicata applies and that the state court already found that service was
invalid. (DE # 23 at 4.) The parties do not dispute that Indiana’s law on res judicata
controls. See Paniaguas v. Aldon Cos., No. 2:04-CV-468-PRC, 2007 WL 2228597, at *8 (N.D.
Ind. July 31, 2007) (“[W]here the first of two causes of action was adjudicated in state
court, the adjudicating state’s law controls.”).
In Indiana, issue preclusion arises when some fact or question has been
determined in a prior suit and is then put in issue in a subsequent suit between the
same parties or their privies. Luxury Townhomes, LLC v. McKinley Props., Inc., 992 N.E.2d
810, 817 (Ind. Ct. App. 2013). The four elements of issue preclusion are: “1) the former
judgment must have been rendered by a court of competent jurisdiction; 2) the matter
now in issue was determined in the former suit; 3) the particular controversy
adjudicated in the former action must have been between the parties to the present suit
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or their privies; and 4) the judgment in the former suit must have been rendered on the
merits.” Id. These four elements are satisfied by the state court’s order granting the
motion to set aside default judgment. (See DE # 24-1.) Specifically, service of process
was at issue before the state court in the motion to set aside default judgment, and the
state court order on that motion served as a final judgment. Additionally, Meyer was
not a party to the state court case but he is in privity with GLHS Unity Surgery Center
because he served as their attorney and he was “so identified in interest” with GLHS
that “he represents the same legal right.” Thrasher Buschmann & Volkel, P.C. v. Adpoint,
Inc., 24 N.E. 3d 487, 496 (Ind. Ct. App. 2015). GLHS (in the state court case) and Meyer
(here) are completely aligned in their desire to prove that service was valid.
Meyer disputes that Schroeder has satisfied these requirements on only two
grounds. He argues (a) that Indiana’s rules of res judicata only apply to final judgments,
and (b) that the state court’s order granting the motion to set aside default judgment did
not actually state that service of process was invalid. (DE ## 24 at 4–5, 24-1.) However,
neither of these arguments convinces the court that issue preclusion does not apply.
Regarding the first of these issues, Schroeder moved to set aside the default
judgment under Indiana Rule of Trial Procedure 60(B)(6). (DE # 23-1 at 4.) An order
granting or denying relief under that rule is a final judgment. See Indiana Rule of Trial
Procedure 60(C). Regarding the second issue, the only basis for Schroeder’s motion to
set aside the default judgment was a lack of service of process. (DE # 23-1 at 2–4.) So, in
granting the motion, the state court must have concluded that service was not proper.

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Accordingly, issue preclusion bars Meyer from contesting the validity of service of
process and the court will not grant summary judgment on this basis.
Second, Meyer contends that his statements to the state court were legal
positions and such positions may not be deemed violations of § 1692e. To support this
position, Meyer cites several cases which hold that it is not a violation of the FDCPA to
request attorney’s fees in certain scenarios. See Singer v. Pierce & Assocs., P.C., 383 F.3d
596 (7th Cir. 2004); Fields v. Wilbur Law Firm, P.C., 383 F.3d 562, 565 (7th Cir. 2004); Bull
v. Asset Acceptance, LLC, 444 F. Supp. 2d 946 (N.D. Ind. 2006). Meyer attempts to
analogize those cases to the issues in the case at hand; however, nothing in those cases
leads the court to believe it should extend their holdings outside the context of requests
for attorney’s fees. Furthermore, those cases do not indicate that the Seventh Circuit has
broadly held that legal positions are not actionable under § 1692e. Accordingly, the
court rejects Meyer’s assertion that summary judgment should be granted on this basis.
Lastly, defendant argues that communications made by lawyers to state court
judges are not actionable under § 1692e of the FDCPA. Meyer is correct that the FDCPA
only extends its protections to consumers and there can be no violation under § 1692e
for representations or means that would confuse or mislead a state court judge.
O’Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 944 (7th Cir. 2011). Accordingly,
to the extent that Schroeder claims the state court judge was deceived or misled,
summary judgment is appropriate. However, to the extent that Schroeder’s claim
alleges that he (the consumer) was misled or deceived, summary judgment is not

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appropriate.
IV.

CONCLUSION
For the foregoing reasons, the court
(1) DENIES Matthew A. Schroeder’s Motion for Partial Summary Judgment

(DE # 20);
(2) GRANTS Walter Christian Meyer's Motion for Summary Judgment (DE # 18)
as to Schroeder's claim under 15 U.S.C. § 1692f;
(3) GRANTS Meyer's Motion for Summary Judgment (DE # 18) as to Schroeder's
claim under 15 U.S.C. § 1692e to the limited extent that Schroeder claims the state court
was deceived or misled; and,
(4) Otherwise DENIES Meyer’s Motion for Summary Judgment. (DE # 18.)

SO ORDERED.
Date: March 31, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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