REYNOLDS v. EOS CCA et al

Filing 59

ORDER - or the foregoing reasons, the Court GRANTS IN PART Ms. Reynolds' Motion for Summary Judgment, [Filing No. 46], to the extent that it finds that she is entitled to judgment as a matter of law on her claims under § 1692e and § 1 692f of the FDCPA. The Court DENIES IN PART Ms. Reynold's Motion for Summary Judgment, [Filing No. 46], to the extent that Ms. Reynolds is not entitled to judgment as a matter of law on her claim under § 1692d of the FDCPA. No partial fin al judgment shall enter at this time. The Court requests that the Magistrate Judge meet with the parties to discuss the possibility of resolving Ms. Reynolds' claim under § 1692d,6 and to address the issue of the appropriate amount of damages for Defendants' violations of § 1692e and § 1692f, before the July 19, 2016 trial in this matter. (SEE ORDER FOR MORE DETAILS.) Signed by Judge Jane Magnus-Stinson on 4/26/2016. (MRI)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

SHERRY REYNOLDS,

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Plaintiff,
vs.
EOS CCA,
U.S. ASSET MANAGEMENT, INC.,
Defendants.

No. 1:14-cv-01868-JMS-DML

ORDER
Presently pending before the Court in this action brought under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., is Plaintiff Sherry Reynolds’ Motion for
Summary Judgment. [Filing No. 46.] 1
I.
STANDARD OF REVIEW
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). Whether a party asserts that a fact is undisputed or
genuinely disputed, the party must support the asserted fact by citing to particular parts of the
record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can
also support a fact by showing that the materials cited do not establish the absence or presence of

1

Ms. Reynolds’ counsel filed a factually similar complaint on behalf of a different plaintiff,
Thomas Reed, in a separate case against Defendant EOS CCA (“EOS”). See Reed v. EOS CCA,
No. 1:14-cv-01745-JMS-DKL (S.D. Ind.). Mr. Reed filed a motion for summary judgment in his
case, raising the same issues that Ms. Reynolds raises in her pending motion. Consequently, the
Court is contemporaneously issuing an Order in Reed that is substantially similar to this Order.
1

a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant is competent to testify on
matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a
movant’s factual assertion can result in the movant’s fact being considered undisputed, and
potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In
other words, while there may be facts that are in dispute, summary judgment is appropriate if those
facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.
2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed. 202 (1986).
On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d
892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th
Cir. 2009). The Court views the record in the light most favorable to the non-moving party and
draws all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d
903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657
F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P.
56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that

2

they are not required to scour every inch of the record for evidence that is potentially relevant to
the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension
Plan, 614 F.3d 684, 691 (7th Cir. 2010).
II.
STATEMENT OF FACTS
In 2004, Ms. Reynolds contracted with Cingular Wireless for cell phone service. [Filing
No. 47-1 at 1.] At some point in the future, AT&T Mobility acquired Cingular Wireless, and
AT&T Mobility continued to provide Ms. Reynolds with cell phone service. [Filing No. 47-1 at
1.] Ms. Reynolds never signed an agreement with AT&T Mobility regarding her cell phone
service, and never indicated that she agreed to any “terms of service” with AT&T Mobility. [Filing
No. 47-1 at 1.] When Ms. Reynolds missed, and eventually stopped making, payments on her
AT&T Mobility account, AT&T Mobility did not apply interest to the unpaid amounts. [Filing
No. 47-1 at 2.] Additionally, AT&T Mobility never informed Ms. Reynolds that she could be
responsible for collection costs for unpaid amounts. [Filing No. 47-1 at 2.]
In August of 2012, Defendant U.S. Asset Management, Inc. (“U.S. Asset Management”)
purchased Ms. Reynolds’ AT&T Mobility account and approximately two million more “chargedoff” accounts from AT&T Mobility. [Filing No. 47-2 at 5; Filing No. 47-4.]

U.S. Asset

Management subsequently hired Defendant EOS to collect unpaid amounts on Ms. Reynolds’
AT&T Mobility account. [Filing No. 47-2 at 6.]
On April 4, 2014, EOS sent Ms. Reynolds a letter on behalf of U.S. Asset Management,
stating that Ms. Reynolds owed $1,042.84 in principal on her AT&T Mobility account, $353.95 in
interest, and $187.72 in fees/collection costs, for a total owed of $1,584.51. [Filing No. 47-5.]

3

The letter stated that U.S. Asset Management had “authorized…resolution to your balance” for a
lump sum settlement payment of $792.26. [Filing No. 47-5.]
Defendants’ corporate representative, 2 John Burns, testified that interest on the account
had been accruing since September 25, 2009. [Filing No. 47-2 at 15.] Mr. Burns also testified
that the IT department at EOS applied the interest on Ms. Reynolds’ account (at 8 percent), and
also applied the collection costs. [Filing No. 47-2 at 12.] He further testified that neither U.S.
Asset Management nor EOS received the original Cingular Wireless contract signed by Ms.
Reynolds, nor any documentation with Ms. Reynolds’ signature, when they purchased her account
from AT&T Mobility. [Filing No. 47-2 at 10-11.] Mr. Burns also testified that neither EOS nor
U.S. Asset Management have any documents indicating that Ms. Reynolds agreed to the AT&T
Mobility terms of service. [Filing No. 47-2 at 18-22.]
Ms. Reynolds filed her Complaint in this matter on November 14, 2014, alleging that
Defendants violated §§ 1692d, 1692e, and 1692f of the FDCPA “when they sent dunning letters
to [her] attempting to collect interest that was not in the original contract, and thus…attempting to
collect an amount not authorized or permitted by the original agreement creating the debt.” [Filing
No. 1 at 3-4.] Ms. Reynolds seeks actual damages under 15 U.S.C. § 1692k(a)(1), statutory
damages under 15 U.S.C. § 1692k(a)(2)(A), and reasonable attorneys’ fees and costs under 15
U.S.C. § 1692k(a)(3). [Filing No. 1 at 4.]
III.
DISCUSSION
Congress enacted the FDCPA to “eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt collection

2

EOS is now known as “EOS USA,” and owns U.S. Asset Management. [Filing No. 47-2 at 3.]
4

practices are not competitively disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.” 15 U.S.C. § 1692. Ms. Reynolds sets forth three main
arguments in support of her Motion for Summary Judgment: (1) that Defendants violated the
FDCPA when they sent the April 4, 2014 letter attempting to collect interest and collection costs
not provided in the contract; (2) that AT&T Mobility waived any application of interest and
collection costs, and so Defendants are estopped from seeking them; and (3) that Defendants’
failure to properly compute the interest allegedly due on her account, and to subsequently modify
the interest rate without notice, violates the FDCPA. [Filing No. 47 at 9-20.]
A. FDCPA Violations for Attempting to Collect Interest and Collection Costs Not
Provided in the Contract
Ms. Reynolds argues that Defendants violated the FDCPA by attempting to collect interest
and collection cost not provided for in any contract between her and AT&T Mobility. Ms.
Reynolds states that Defendants “do not have any documentation signed by Ms. Reynolds in which
she agreed to be responsible for interest and collection costs on her old AT&T Mobility account.”
[Filing No. 47 at 9.] Therefore, Ms. Reynolds contends that “by applying collection costs and
interest to [her] account, Defendants are misleading Ms. Reynolds that these extraneous amounts
are legally owed by her.” [Filing No. 47 at 9.] Ms. Reynolds argues that neither U.S. Asset
Management nor EOS possess any signed contracts or have record of her original contract. [Filing
No. 47 at 10-11.] Ms. Reynolds contends that Mr. Burns also was not able to determine whether
the AT&T Terms of Service provided by EOS during discovery applied to Ms. Reynolds. [Filing
No. 47 at 11-12.] Ultimately, Ms. Reynolds contends that the “2009 AT&T Terms of Service” are
not applicable because she signed her cell phone contract prior to 2009 and her account was
charged off in 2009. [Filing No. 47 at 11-12.] Thus, without any legal basis to charge and collect

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interest or collection costs, Ms. Reynolds argues that Defendants violated the FDCPA. [Filing No.
47 at 12.]
In response, Defendants do not present any further evidence, but use Ms. Reynolds’ own
statements to rebut her position. 3 First, Defendants attempt to establish the presence of a contract
through Ms. Reynolds’ admission that she entered into a contract with Cingular Wireless. [Filing
No. 57 at 6.] Defendants argue that Ms. Reynolds admits that she had been using her cellular
service even after knowing her plan had switched to AT&T Mobility and receiving monthly bills
from AT&T Mobility. [Filing No. 57 at 6.] Defendants point to a provision in AT&T Mobility’s
Terms of Service which states:
If you decide to terminate because you object to the Terms of this Agreement, return
any handsets or accessories in accordance with the Cancellation
Period/Termination provision below AND, in order to have any restocking fee
returned, send a letter as described in the Cancellation Period/Termination
provision within 15 days.
[Filing No. 57 at 6 (quoting Filing No. 47-7 at 2) (emphasis omitted).] Defendants contend that
“[s]uch terms of service would have been provided at the time the service was activated.” [Filing
No. 57 at 7.] Defendants assert that Ms. Reynolds’ admitted and continued usage of the phone
service constitutes assent to the AT&T Mobility terms of service. [Filing No. 57 at 7.] Thus,
arguing the terms of service are binding, Defendants point to a second provision in the terms of
service which allows for the collection of late payments:
You agree to reimburse us the fees of any collection agency, which may be based
on a percentage at a maximum of 33% of the debt, and all costs and expenses,
including reasonable attorney’s fees, we incur in such collection efforts.

3

Defendants do not differentiate between U.S. Asset Management and EOS. For example, they
do not discuss whether U.S. Asset Management, as a debt buyer, can be held liable for an FDCPA
violation. The Court will follow Defendants’ lead, and refer to U.S. Asset Management and EOS
collectively, as “Defendants.”
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You agree that for amounts not paid by the due date, AT&T may charge, as a part
of its rates and charges, and you agree to pay, a late payment fee of $5 in CT, D.C.,
DE, IL, KS, MA, MD, ME, MI, MO, NH, NJ, NY, OH, OK, PA, RI, VA, VT, WI,
WV; the late payment charge is 1.5% of the balance carried forward to the next bill
in all other states.
[Filing No. 57 at 7 (quoting Filing No. 47-7 at 10; Filing No. 47-7 at 13).] Additionally,
Defendants attempt to justify the 8% interest rate imposed on Ms. Reynolds’ outstanding charges
by citing Indiana Code § 24-4.6-1-103, which allows for accrual of interest from “the date an
itemized bill shall have been rendered and payment demanded on an…account closed.” [Filing
No. 57 at 9.]
On reply, Ms. Reynolds contends that Defendants misquote her affidavit, rely on language
not present in the record, cite to incorrect documents, provide no evidence to support their position,
and cannot provide “admissible evidence that the ‘Terms of Service’ it references…control in this
case.” [Filing No. 58 at 2-3.] Ms. Reynolds rejects Defendants’ contention that the AT&T
Mobility “2009 Terms of Service” produced by Defendants are binding. [Filing No. 58 at 5.] She
states that “[d]efendants fail to provide any evidence under oath that the ‘Terms of Service’ at
issue in this matter is the ‘Terms of Service’ that applied to Ms. Reynolds’ account with AT&T
Mobility.” [Filing No 58 at 5.] Ms. Reynolds also notes that “[d]efendants produced more than
one ‘Terms of Service’ during discovery in the case,” and emphasizes that Defendants “cannot
simply point to an arbitrary ‘Terms of Service’ agreement and argue that it is the one that applied
to Ms. Reynolds’ account.” [Filing No. 58 at 5.] Furthermore, Ms. Reynolds rejects Defendants’
application of the 8% interest rate pursuant to Indiana Code 24-4.6-1-103 by pointing out that the
statute “pertains to the imposition of interest on judgments,” and therefore is not applicable in this
case. [Filing No. 58 at 6 (emphasis omitted).]

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1. Whether a Contract Providing for the Imposition of Interest and Collection
Costs Existed
The Seventh Circuit has “consistently held that summary judgment is ‘not a dress rehearsal
or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what
evidence it has that would convince a trier of fact to accept its version of the events.’” Steen v.
Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407
F.3d 852, 859 (7th Cir. 2005)). To overcome a motion for summary judgment, the non-moving
party must support the asserted facts by citing to particular parts of the record, including
depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A).
Here, Defendants have not provided any evidence to the Court which would suggest the
presence of a binding contract between Ms. Reynolds and AT&T Mobility that provided for the
imposition of interest and collection costs. In fact, the record evidence suggests that Defendants
do not possess such documentation. During his deposition, Mr. Burns admitted that Defendants
do not possess documentation, with Ms. Reynolds’ signature, agreeing to any AT&T Mobility
terms of service. [Filing No. 47-2 at 18.] And, significantly, Mr. Burns could not testify to any
degree of certainty that the “2009 Terms of Service” were the same terms of service Ms. Reynolds
would have been provided, but could only “assume” that was the case. [Filing No. 47-2 at 18.]
Mr. Burns stated that Defendants relied on a “representation from AT&T that this is a valid
account, that the balance is valid, and that the person…was in contract with them, and the terms
of that contract provided that the individual would be subject to the service agreement….” [Filing
No. 47-2 at 19-20.] The Court finds that Defendants have not presented sufficient evidence to
establish Ms. Reynolds’ assent to the “2009 AT&T Terms of Service” or any other contract with
AT&T Mobility that authorized the imposition of interest and collection costs.

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As the Seventh Circuit has repeatedly assured the district courts, the Court is not required
to scour every inch of the record for evidence that is potentially relevant to the summary judgment
motion before them. Johnson, 325 F.3d at 898. Defendants have not produced a valid contract
between Ms. Reynolds and AT&T Mobility and, thus, have not established that such a contract –
providing for the imposition of interest and collection costs – ever existed between those parties.
2. FDCPA Violations
Ms. Reynolds’ Complaint sets forth claims for violations of the FDCPA pursuant to 15
U.S.C. §§ 1692d, 1692e, and 1692f. [Filing No. 1 at 4.] Because the issue of whether Defendants
have violated § 1692e and § 1692f turns specifically on the validity of the debt, the Court will
consider Ms. Reynolds’ claims under those sections first.
a. § 1692e
15 U.S.C. § 1692e creates a private action against a debt collector who uses “any false,
deceptive, or misleading representation or means in connection with the collection of any debt.”
15 U.S.C. § 1692e. The FDCPA sets forth non-exhaustive examples of conduct that violates this
section, such as “[t]he threat to take any action that cannot legally be taken.” Id., § 1692e(5). To
determine which actions violate the FDCPA, the Seventh Circuit follows the “unsophisticated
consumer” standard. Lox v. CDA, Ltd., 689 F.3d 818, 822 (7th Cir. 2012). The unsophisticated
consumer “isn’t a dimwit.

She may be ‘uninformed, naïve, [and] trusting,’…but she has

‘rudimentary knowledge about the financial world,’ and is ‘capable of making basic logical
deductions and inferences.’” Wahl v. Midland Credit Management, Inc., 556 F.3d 643, 645 (7th
Cir. 2009) (citations omitted). “If a statement would not mislead the unsophisticated consumer, it
does not violate the FDCPA – even if it is false in some technical sense.” Id. at 645-46.

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The question of whether debt collectors have violated § 1692e is objective in nature.
Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 995 (7th Cir. 2003). The question does not
turn on “what the debt collector knew but on whether the debt collector’s communication would
deceive or mislead an unsophisticated, but reasonable, consumer.” Id. Furthermore, the FDCPA
is a strict liability statute. “[A] consumer need not show intentional conduct by the debtor collector
to be entitled to recover damages.” Conner v. Howe, 344 F.Supp.2d 1164, 1172 (S.D. Ind. 2004);
see also Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir. 2004).
Ms. Reynolds alleges that Defendants’ actions of attempting to collect interest and
collection costs was misleading. [Filing No. 47 at 9.] As Ms. Reynolds testified, AT&T Mobility
did not attempt to collect or add any interest to her account, even after she missed several payments
and eventually stopped making payments all together. [Filing No. 47-1 at 1-2.] Furthermore,
AT&T Mobility never informed Ms. Reynolds that she could be liable for interest or collection
costs. [Filing No. 47-1 at 2.] As discussed above, Defendants cannot affirmatively establish that
the “2009 AT&T Mobility’s Terms of Service” were applicable to Ms. Reynolds. Other courts
have similarly found that “generic” terms of service or parallel agreements do not constitute
sufficient evidence to overcome summary judgment in the FDCPA context. See McCollough v.
Johnson, Rodenburg & Lauinger, LLC., 637 F.3d 939, 950 (9th Cir. 2011) (granting summary
judgment in favor of plaintiff in FDCPA case and stating “the presentation of generic evidence
that all [cardmember agreements] contain attorney’s fees provisions was insufficient to create a
genuine issue of material fact for the jury”); see also Robinson v. Sherman Financial Group, LLC,
984 F.Supp.2d 816, 825 (E.D. Tenn. 2013) (denying defendant’s summary judgment motion and
stating “the HSBC Cardmember Agreement provided by [Defendants] is a generic form and there
are no names, signatures, or other personal identifiers to demonstrate this particular document is

10

in anyway connected to Plaintiff’s original agreement with HSBC”). There is nothing in the record
which establishes that Ms. Reynolds agreed to, knew about or should have been expecting the
imposition of interest and collection costs.
Further, as to the collection of interest, even if Defendants had established that Ms.
Reynolds entered into an agreement with AT&T Mobility providing for the recovery of interest on
unpaid amounts, their actions still constitute a violation of § 1692e because they attempted to
collect the same amount of interest on several different dates (which cannot be correct) and, in any
event, they calculated the interest amount incorrectly. 4 First, Mr. Burns explained that the amount
of interest on Ms. Reynolds’ account was $353.95 as of August 2012, [Filing No. 47-2 at 15], but
the April 4, 2014 letter states that the interest was that same amount as of April 2014, [Filing No.
47-5]. The amount of interest cannot have been the same in August 2012 and in April 2014.
Second, according to Mr. Burns, the interest rate changed several times: it was 8% from September
25, 2009 to May 31, 2013, 6% for the month of June 2013, and 5.99% from July 1, 2013 to
December 31, 2013. [Filing No. 47-2 at 14-15.] Based on those rates, the Court agrees with Ms.
Reynolds’ calculation that the correct amount of interest would have been $343.46, not $353.95
as reflected in the April 4, 2014 letter. [See Filing No. 47 at 19-20.]
Ms. Reynolds is entitled to summary judgment on her claim under § 1692e of the FDCPA,
both because Defendants have not established that she entered into a contract with AT&T Mobility
that provided for the collection of interest and collection costs, and because Defendants calculated
the interest amount incorrectly.

4

Defendants do not respond to Ms. Reynolds’ argument that they calculated the amount of interest
incorrectly, instead arguing only that they did not violate the FDCPA because “the total amount
of interest added to the account never exceeded 8% during the relevant period.” [Filing No. 57 at
10.] As discussed below, however, the Court rejects Defendants’ argument that they were entitled
to collect interest at a rate of 8% in the first place.
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b. § 1692f
Ms. Reynolds also alleges that Defendants violated 15 U.S.C. § 1692f, which prohibits
“[t]he collection of any amount (including any interest [or] fee…) unless such amount is expressly
authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1). The
Seventh Circuit has instructed that whether or not a defendant has violated § 1692f “does not
hinge on the defendant’s knowledge, but rather upon how a consumer would perceive the demand
letter.” Turner, 330 F.3d at 996. Additionally, a plaintiff alleging a violation of § 1692f need not
show any intent on the defendant’s part. Id. Therefore, bona fide errors do not excuse the
perpetrator from a violation of § 1692f. Id.
Similar to the analysis above, the Court again focuses on the fact that Defendants have not
submitted into evidence a contract between Ms. Reynolds and AT&T Mobility. A simple and
plain reading of the statute requires an explicit agreement authorizing the amounts Defendants
attempted to collect in the April 4, 2014 letter. 15 U.S.C. § 1692f(1). Defendants argue that the
“2009 Terms of Service” document is such a contract, but have not provided evidence that Ms.
Reynolds ever agreed to it.
Defendants attempt to justify applying interest to Ms. Reynolds’ account by relying upon
Indiana Code 24-4.6-1-103, which allows for application of an 8% annual interest rate “from the
date an itemized bill shall have been rendered and payment demanded on an…account closed….”
Ind. Code 24-4.6-1-103(b). Again, however, Defendants have not produced a contract between
Ms. Reynolds and AT&T Mobility that would create the debt in the first place. Because that is so,
the Court cannot determine whether Indiana law even applied to the terms of the contract – perhaps
the contract provided otherwise. Additionally, § 24-4.6-1-103 is generally used to determine the
amount of prejudgment interest the losing party in a lawsuit owes. See, e.g., Easyrest, Inc. v.

12

Future Foam, Inc., 2008 WL 126647, *2 (S.D. Ind. 2008) (“Under Indiana law, prejudgment
interest is to be awarded where the amount of damages was fixed and ascertainable…. Under
Indiana Code 24-4.6-1-103, unless a different rate is specified by contract, prejudgment interest is
awardable at a rate of Eight Percent (8%) per annum from the time payment was due until judgment
is entered”). Defendants have not pointed the Court to any authority standing for the proposition
that § 24-4.6-1-1-3 allows a debt collector to collect interest on an unpaid debt where, as here, the
debt collector has not produced the contract that provides for the imposition of interest in the first
place, or any other evidence that an 8% interest rate would apply.
Defendants did not produce either Ms. Reynolds’ Cingular Wireless contract or any
subsequent contract – specifically applicable to Ms. Reynolds – explicitly authorizing AT&T
Mobility to collect interest and collection costs. Thus, Defendants are in violation of § 1692f by
attempting to collect interest and collection costs without an agreement expressly authorizing such
collection, and Ms. Reynolds is entitled to judgment as a matter of law on her claim under § 1692f.
c. § 1692d
Ms. Reynolds alleges in her Complaint that “[t]he Defendants’ acts and omissions
constitute a violation of 15 U.S.C. § 1692d.” [Filing No. 1 at 4.] Section 1692d provides:
A debt collector may not engage in any conduct the natural consequence of which
is to harass, oppress, or abuse any person in connection with the collection of a
debt. Without limiting the general application of the foregoing, the following
conduct is a violation of this section:
(1) The use or threat of use of violence or other criminal means to harm the physical
person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of
which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except
to a consumer reporting agency or to persons meeting the requirements of
section 1681a(f) or 1681b(3) of this title.
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(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone conversation
repeatedly or continuously with intent to annoy, abuse, or harass any person at
the called number.
(6) Except as provided in section 1692b of this title, the placement of telephone
calls without meaningful disclosure of the caller’s identity.
15 U.S.C. § 1692d.
Ms. Reynolds does not discuss her claim under § 1692d at all in her Motion for Summary
Judgment, nor has she provided the Court with evidence of any conduct by Defendants which
would suggest that Defendants’ actions fall within § 1692d. Specifically, Ms. Reynolds has not
presented any evidence of a threat of violence, use of obscene or profane language, publication of
her name on any consumer lists, advertisements for sale of her debt, or continuous telephone calls.
15 U.S.C. § 1692d(1)-(6); see also Frye v. Bowman, Heintz, Boscia, and Vician, P.C., 193
F.Supp.2d 1070, 1081-82 (S.D. Ind. 2002) (denying plaintiff’s motion for summary judgment on
a claim brought under § 1692d because no support for the claim was provided, including evidence
of any action which naturally resulted in harassment, oppression, or abuse.) Thus, Ms. Reynolds
is not entitled to judgment as a matter of law on her claim under § 1692d. 5
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART Ms. Reynolds’ Motion for
Summary Judgment, [Filing No. 46], to the extent that it finds that she is entitled to judgment as a

5

Because the Court has found that Ms. Reynolds is entitled to summary judgment on her claims
under § 1692e and § 1692f, and since she does not address her § 1692d claim at all in her Motion
for Summary Judgment, the Court need not, and will not, address Ms. Reynolds’ additional
argument that AT&T Mobility waived any right to collect interest and collection costs and so
Defendants are estopped from seeking them.
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matter of law on her claims under § 1692e and § 1692f of the FDCPA. The Court DENIES IN
PART Ms. Reynold’s Motion for Summary Judgment, [Filing No. 46], to the extent that Ms.
Reynolds is not entitled to judgment as a matter of law on her claim under § 1692d of the FDCPA.
No partial final judgment shall enter at this time.
The Court requests that the Magistrate Judge meet with the parties to discuss the possibility
of resolving Ms. Reynolds’ claim under § 1692d, 6 and to address the issue of the appropriate
amount of damages for Defendants’ violations of § 1692e and § 1692f, before the July 19, 2016
trial in this matter.

Date: April 26, 2016

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only to all counsel of record

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When determining whether to pursue her claim under § 1692d, Ms. Reynolds should be mindful
of Fed. R. Civ. P. 11 and 28 U.S.C. § 1927.
15