Brandon v. Eaton Group Attorneys, LLC
ORDER AND REASONS denying 8 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 1/24/17. (jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EATON GROUP ATTORNEYS, LLC
SECTION “R” (1)
ORDER AND REASONS
Dr. Cassandra Brandon sued Eaton Group Attorneys, LLC, alleging
that a debt collection letter sent by Eaton Group violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq., and the Louisiana Unfair
Trade Practice and Consumer Protection Act, LA. Rev. Stat. § 51:1401-18.
Eaton Group moves for summary judgment, and argues that its letter offends
neither statute as a matter of law. For the following reasons, the Court denies
Eaton Group’s motion.
On May 6, 2016, Eaton Group Attorneys, LLC, as the representative of
National Collegiate Student Loan Trust 2007-1, filed a petition against Dr.
Brandon in the 24th Judicial District Court for the Parish of Jefferson.1 In
R. Doc. 9-4 at 3.
its petition, the Student Loan Trust alleged that Dr. Brandon had defaulted
on a debt, and sought $41,115.13, plus accrued interest of $4,998.37,
additional interest at the rate of 4% from the date of judgment, and costs.2
On or around June 3, 2016, Dr. Brandon received a letter from Eaton
Group concerning the lawsuit and her alleged debt.3 The subject line of the
letter described it as a “REQUEST FOR PAYMENT ARRANGEMENTS.”4
The letter stated:
Dear CASSANDRA PLUMMER:5
If you would like to explore a voluntary repayment plan, then
please provide the requested information. The debt will need to
be acknowledged through the attached consent judgment. Please
return these forms as soon as possible. This is a communication
from a debt collector. This is an attempt to collect a debt. Any
information obtained will be used for that purpose.
The letter also included a form for Dr. Brandon to provide information—
including address, social security number, and employer’s contact
information—for both Dr. Brandon and her spouse.7
R. Doc. 9-2 at 2; R. Doc. 8-2 at 4-5.
R. Doc. 8-2 at 4.
Plummer is Dr. Brandon’s maiden name.
R. Doc. 8-2 at 4.
Attached to the letter was a partially completed consent judgment8 and
a copy of the petition in the Jefferson Parish case.9 The consent judgment
IT IS ORDERED, ADJUDGED, AND DECREED that judgment
be rendered in favor of the Plaintiff, NATIONAL COLLEGIATE
LOAN TRUST 2007-1, and against the defendant, CASSANDRA
PLUMMER (SSN ), in the full sum of $41,115.13, together with
accrued interest of $4,998.37, and additional interest of 4% from
date of judgment, and for all costs of these proceedings, subject
to a credit of $.00.10
The consent judgment had already been signed by a representative of the
In her complaint, Dr. Brandon alleges that this letter “was deceptive
and misleading as it attempted to trick [her] into signing a consent judgment
by promising a voluntary repayment plan.”12 She brings claims under the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., and the
Louisiana Unfair Trade Practice and Consumer Protection Act (LUTPA), LA.
Rev. Stat. § 51:1401-18.
The Eaton Group now moves for summary
judgment, arguing that the letter it sent to Dr. Brandon was non-deceitful as
a matter of law.
Id. at 5.
Id. at 2.
Id. at 5.
R. Doc. 9-3 at 2.
R. Doc. 1 at 5.
Summary judgment is warranted when “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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).
All reasonable inferences are drawn in favor of the
nonmoving party, but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “No genuine dispute of fact exists if the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would entitle it to a directed verdict if the evidence went
uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by
either countering with evidence sufficient to demonstrate the existence of a
genuine dispute of material fact, or “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
merely pointing out that the evidence in the record is insufficient with
respect to an essential element of the nonmoving party’s claim. See Celotex,
477 U.S. at 325. The burden then shifts to the nonmoving party, who must,
by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
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.” (quoting Celotex, 477 U.S. at 322)).
Eaton Group moves for summary judgment on both Dr. Brandon’s
FDCPA claims and her LUTPA claim. The Court considers each in turn.
The FDCPA seeks to eliminate “abusive, deceptive, and unfair debt
collection practices” by regulating the type and number of contacts a “debt
collector”13 can make with a debtor. See 15 U.S.C. § 1692(a). Section 1692e
of the law prohibits debt collectors from using “any false, deceptive, or
misleading representation or means in connection with the collection of any
debt.” Similarly, “[a] debt collector may not use unfair or unconscionable
means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. Congress
“clearly intended the FDCPA to have a broad remedial scope,” and the law
“should therefore be construed broadly and in favor of the consumer.”
Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 511 (5th Cir.
2016) (quoting Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d
440, 445 (5th Cir. 2013)).
In considering whether a debt collection letter violates these
provisions, the Court views the letter from the perspective of “an
The Eaton Group does not appear to contest that it qualifies as a debt
collector under the FDCPA.
unsophisticated or least sophisticated” consumer. Goswami v. Am.
Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir. 2004). Such a consumer
is assumed to be “neither shrewd nor experienced in dealing with creditors.”
Id. Still, “we do not consider the debtor as tied to the very last rung on the
intelligence or sophistication ladder.” Id. (internal quotations and
modifications omitted). A collection letter is misleading or deceptive “when
it can be reasonably read to have two or more different meanings, one of
which is inaccurate.” Gomez v. Niemann & Heyer, L.L.P., No. 16-119, 2016
WL 3562148, at *5 (W.D. Tex. June 24, 2016) (quoting Russell v. Equifax
A.R.S., 74 F.3d 30, 35 (2nd Cir. 1996)); see also Gonzales v. Arrow Fin.
Servs. LLC, 660 F.3d 1055, 1062 (9th Cir. 2011); Rosenau v. Unifund Corp.,
539 F.3d 218, 222 (3rd Cir. 2008). In a suit seeking statutory damages, the
plaintiff need not prove that she was actually misled by the letter. Bartlett v.
Heibl, 128 F.3d 497, 499 (7th Cir. 1997).
The Court finds that the letter plaintiff received was misleading
because an unsuspecting debtor, seeking only to “explore a voluntary
repayment plan,”14 could be fooled into executing the consent judgment
without knowledge of the consequences. Specifically, an unsophisticated
debtor may not know that the consent judgment will serve to waive
R. Doc. 8-2 at 4.
potentially valid defenses and may facilitate a wage garnishment order.
Plaintiff alleges that defendant did not intend to use the consent judgment
for a voluntary repayment plan, but rather to enforce involuntary repayment.
If a repayment plan is “explore[d],” but no repayment plan is actually agreed
to, the debtor is still bound by the acknowledgement and consent judgment.
This follows because the letter could be read to mean the debtor is receiving
only the right to “explore” an unspecified repayment plan by signing the
acknowledgment and consent judgment. Under these circumstances, the
debtor has to sign the consent judgment and acknowledge the debt before he
even knows the terms of the payment plan to be “explore[d].”
Unsophisticated consumers may be unaware that they will have no leverage
to negotiate a payment plan because they will be bound by the
acknowledgement and consent judgment even if the plan offered is never
agreed to. Defendants’ argument that the letter expresses their purpose not
to enforce the consent judgment if plaintiff adheres to an agreed payment
plan is not supported by the language of the letter.
The Fifth Circuit’s recent decision in Daugherty v. Convergent
Outsourcing, Inc., 836 F.3d 507 (5th Cir. 2016), is instructive in evaluating
Dr. Brandon’s claim.
In Daugherty, the court found that allegations
concerning a collection letter that contained an offer to “settle” a time-barred
debt stated a claim for deceptive and misleading practices under the FDCPA.
In deciding the case, the Fifth Circuit quoted approvingly from similar cases
in the Sixth and Seventh Circuits. Id. at 511-12. Those circuits both found
that, because the offer to “settle” a time-barred debt could fool an
unsuspecting debtor into reviving the barred debt—and thereby place the
debtor in a worse position—letters containing such offers and no disclosure
of the associated risk may be misleading. McMahon v. LVNV Funding, LLC,
744 F.3d 1010, 1021 (7th Cir. 2014) (letters could be misleading, in part,
because “a gullible consumer who made a partial payment would
inadvertently have reset the limitations period and made herself vulnerable
to a suit on the full amount”); Buchanan v. Northland Grp., Inc., 776 F.3d
393, 399 (6th Cir. 2015) (partial payment “exposes a debtor to substantial
new risk” and therefore “[w]ithout disclosure, a well-meaning debtor could
inadvertently dig herself into an even deeper hole.”). Agreeing with these
cases, the Fifth Circuit held that “a collection letter seeking payment on a
time-barred debt (without disclosing its unenforceability) but offering a
‘settlement’ and inviting partial payment (without disclosing the possible
pitfalls) could constitute a violation of the FDCPA.” Daugherty, 836 F.3d at
Here, as in Daugherty, McMahon, and Buchanon, Eaton Group’s letter
invites the consumer to “explore” a voluntary repayment plan, but because
Eaton Group’s offer requires the consumer to “acknowledge” the debt and
execute the attached consent judgment to even try to negotiate a voluntary
repayment plan, a “well-meaning debtor” seeking to negotiate a payment
plan “could inadvertently dig herself into an even deeper hole.” Daugherty,
836 F.3d at 513 (quoting Buchanan, 776 F.3d at 399). Specifically, the
consumer could unknowingly waive potential defenses, and subject herself
to wage garnishment, and this could occurred even if no repayment plan is
ultimately agreed to. These are substantial “possible pitfalls,” id., and the
letter evinces no attempt at disclosure. Accordingly, drawing all reasonable
inferences in favor of Dr. Brandon, the Court cannot find that Eaton Group’s
letter is neither misleading nor deceptive as a matter of law. Eaton Group’s
portrayal of the letter as a settlement offer does not disturb this conclusion.
See Goswami, 377 F.3d at 496 (“A collection agency may offer a settlement;
however, it may not be deceitful in the presentation of that settlement offer
. . . .”).
LUTPA prohibits “[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce.” La. Rev.
Stat. § 51:1405(A). “[A] practice is unfair when it offends established public
policy and when the practice is unethical, oppressive, unscrupulous, or
substantially injurious.” Rogers v. Brooks, 122 F. App’x 729, 733 (5th Cir.
2004) (quoting Jarrell v. Carter, 577 So.2d 120, 123 (La. App. 1 Cir.1991). A
misrepresentation.” Mixon v. Iberia Surgical, L.L.C., 956 So. 2d 76, 80 (La.
App. 3 Cir. 2007). A practice need not be both unfair and deceptive to fall
under LUTPA, either will suffice. Monroe Med. Clinic, Inc. v. Hosp. Corp. of
Am., 622 So. 2d 760, 763 (La. App. 2 Cir 1993). Determination of whether a
particular practice offends LUTPA is largely left to the courts, and is to be
determined on a “case-by-case basis.” Turner v. Purina Mills, Inc., 989 F.2d
1419, 1422 (5th Cir. 1993).
The Court finds that summary judgment under LUTPA is
inappropriate for the same reasons as the FDCPA. As noted, Eaton Group’s
conduct could be deemed a deceptive attempt to fool an unsuspecting debtor
seeking only to explore a voluntary payment plan into waiving valid defenses
and subjecting herself to wage garnishments. Whether this conduct offends
LUTPA is a question of fact, best suited for the jury. SnoWizard, Inc. v.
Robinson, 897 F. Supp. 2d 472, 488 (E.D. La. 2012) (“[T]his claim should be
sent to a jury to determine if SnoWizard’s behavior implicated LUTPA, and
therefore SnoWizard’s motion for summary judgment on this issue is
denied.”); see also Fagan v. Lawrence Nathan Assocs., Inc., 957 F. Supp. 2d
784, 801 (E.D. La. 2013) (granting default judgment to plaintiff alleging debt
collection practices in violation of LUTPA).
To resist this conclusion, Eaton Group argues that Louisiana courts
have ruled attorneys immune to LUTPA. The Court finds that Eaton Group’s
only supporting case, Thibaut, Thibaut, Garrett & Bacot v. Smith & Loveless,
Inc., 576 So. 2d 532 (La. App. 1 Cir. 1990), is distinguishable. Loveless
concerned whether the legislature or Supreme Court had authority to
regulate how attorneys collect legal fees from their own clients. It does not
stand for the more sweeping proposition that, by gaining admission to the
Louisiana bar, a person may immunize himself from LUTPA entirely. See
Reed v. Allison & Perrone, 376 So. 2d 1067, 1069 (La. App. 4 Cir. 1979)
(attorney advertising may be regulated under LUTPA).
For the foregoing reasons, Eaton Group’s motion for summary
judgment is DENIED.
New Orleans, Louisiana, this _____ day of January, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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