Girdler v. Convergent Outsourcing, Inc.

Filing 35

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - Convergent's motion for summary judgment, D. 19, is DENIED in part and ALLOWED in part. Convergent's motion is DENIED as to Count I and ALLOWED as to Count II. (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________________
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FAITH GIRDLER,
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)
Plaintiff,
)
) Civil Action No. 15-cv-13359-DJC
v.
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CONVERGENT OUTSOURCING,
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INC.,
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Defendant.
_________________________________________ )

MEMORANDUM AND ORDER
CASPER, J.
I.

December 29, 2016

Introduction
Plaintiff Faith Girdler (“Girdler”) asserts claims against Defendant Convergent

Outsourcing, Inc. (“Convergent”) for violations of the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692 et seq. (“FDCPA”). D. 17. Girdler alleges that Convergent used false, deceptive
or misleading representations or means by failing to identify itself as a debt collector attempting
to collect her debt in violation of § 1692e & (11) (Count I) and failed to provide her the required
written notice of her debt in violation of § 1692g(a) (Count II). Id. at 5-7. Convergent has moved
for summary judgment on all counts, D. 19, and Girdler has opposed, D. 24. Convergent has also
filed supplemental authority regarding Article III standing. D. 27, 31, 33, 34. For the reasons
stated below, the motion for summary judgment is DENIED in part and ALLOWED in part.
II.

Standard of Review
Summary judgment must be granted where there is no genuine dispute of any material fact

and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of
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law. Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a genuine
issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000) (citations omitted);
see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving
party may not rest on the allegations or denials in its pleadings, Murray v. Warren Pumps, LLC,
821 F.3d 77, 83 (1st Cir. 2016) (citation omitted), but “must, with respect to each issue on which
she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve
that issue in her favor,” Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010)
(citations omitted). The Court views the record in the light most favorable to the non-movant and
draws reasonable inferences in their favor. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009)
(citation omitted).
III.

Discussion
Standing as to Count I
Girdler’s claims are based upon phone calls made by Convergent to Girdler and a written

notice that Girdler asserts she did not receive. D. 17 at 3-4; D. 22-1, 22-2. Convergent argues that
Girdler lacks standing where she failed to follow the dispute procedures prescribed by the FDCPA.
D. 20 at 4. Convergent also argues that Girdler lacks standing in light of recent Supreme Court
precedent because she has not suffered an injury in fact. D. 27 at 2.
While Convergent does not point to the section of the FDCPA that contains the applicable
dispute procedures, the cases it relies upon, D. 20 at 4, discuss § 1692g. Among other things, §
1692g requires a debt collector, within five days after the initial communication—unless done so
in that communication—to notify the consumer in writing that unless they dispute the validity of
their debt thirty days after receipt of the notice “the debt will be assumed to be valid by the debt
collector.” See § 1692g(a). Failure to dispute the debt is not an admission of liability. § 1692g(c).

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In applying § 1692g, however, courts have dismissed FDCPA suits based upon an allegation that
“the debt sought to be collected is not valid” and where the consumer failed to follow the debt
validation dispute procedure prior to filing suit. See, e.g., Bleich v. Revenue Maximization Grp.,
Inc., 233 F. Supp. 2d 496, 500-01 (E.D.N.Y. 2002) and cases cited. Although failure to dispute a
debt permits a debt collector to assume that the debt is valid, such failure does not necessarily bar
a plaintiff from bringing suit under the FDCPA. See Hudson v. Babilonia, No. 14-cv-01646-MPS,
2016 WL 3264150, at *22 (D. Conn. June 14, 2016) (concluding that failure to contest a debt
pursuant to § 1692g(b) does not bar a debtor from bringing FDCPA claims and denying summary
judgment in debt collector’s favor). Here, Girdler is not asserting claims regarding the debt itself,
but rather the practices Convergent used in attempting to collect the debt.

See § 1692e.

Accordingly, Girdler’s failure to dispute the debt does not otherwise bar her claims. See Hudson,
2016 WL 3264150, at *22.
Convergent also argues that Girdler lacks standing based upon the Supreme Court’s recent
decision in Spokeo, Inc. v. Robins, __ U.S. __, 136 S. Ct. 1540 (2016) because she has not suffered
a concrete harm to establish injury in fact, D. 27 at 2-4—“the [f]irst and foremost of standing’s
three elements,” Spokeo, 136 S. Ct. at 1547 (alteration in original) (internal quotation marks and
citation omitted). Because the Court dismisses Count II on other grounds, as discussed below, it
will only address injury in fact as to Count I for violations of § 1692e.
“To establish injury in fact, a plaintiff must show that she suffered ‘an invasion of a legally
protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Id. at 1548 (citation omitted). In Spokeo, an online people search engine posted
allegedly false information regarding an individual in violation of certain provisions of the Fair
Credit Reporting Act “concerning the creation and use of consumer reports.” See id. at 1544-45.

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The Ninth Circuit reversed the district court’s dismissal for lack of standing and the Supreme Court
vacated and remanded for further development where the Ninth Circuit addressed the
“particularization” but not the “concreteness” requirement to determine injury in fact. See id. at
1544, 1550. As discussed in Spokeo, “[t]o be ‘concrete,’ an injury ‘must actually exist,’ that is, it
must be ‘real, and not abstract.’” Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016)
(internal quotation mark omitted) (quoting Spokeo, 136 S. Ct. at 1548). The Second Circuit, in
concluding that plaintiff had standing to bring certain claims for violations of the Truth in Lending
Act for failure to disclose particular consumer rights, summarized the holding in Spokeo: “we
understand Spokeo, and the cases cited therein, to instruct that an alleged procedural violation can
by itself manifest concrete injury where Congress conferred the procedural right to protect a
plaintiff’s concrete interests and where the procedural violation presents a ‘risk of real harm’ to
that concrete interest.” See id. at 190 (quoting Spokeo, 136 S. Ct. at 1549). “But even where
Congress has accorded procedural rights to protect a concrete interest, a plaintiff may fail to
demonstrate concrete injury where violation of the procedure at issue presents no material risk of
harm to that underlying interest.” Id. (citing Spokeo, 136 S. Ct. at 1549).
Based upon the record before the Court, Girdler has met her burden as to Count I “to proffer
evidence sufficient to manifest” a concrete and particularized injury. See id. at 192 (citing Lujan
v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). According to the FDCPA, a debt collector must
disclose in the initial communication with the consumer that it is a debt collector “attempting to
collect a debt and that any information obtained will be used for that purpose.” See Kagan v.
Selene Fin. L.P., No. 15-cv-5936-KMK, 2016 WL 5660255, at *7 & n.7 (S.D.N.Y. Sept. 28, 2016)
(quoting § 1692e(11)). Debt collectors must also disclose in all subsequent communications with
the consumer that the communication is from a debt collector. See id. This disclosure requirement

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is contingent upon the debt collector affirmatively identifying the debtor as the one being
contacted. See §§ 1692b(2), 1692c(b). Here, a reasonable jury could find that, based upon the
uncontested transcripts of the applicable telephone calls, D. 22-1 at 2-3, Convergent used “false,
deceptive, or misleading representation[s] or means” in failing to disclose to Girdler that it was a
debt collector attempting to collect a debt and that the information obtained would be used for that
purpose, see § 1692e. A jury could find that Convergent first communicated with Girdler by phone
on June 23, 2015 and confirmed that they had indeed contacted Girdler, but did not disclose that
it was a debt collector attempting to collect a debt or for what purpose any information obtained
during the call would be used. See D. 22-1 at 2. Likewise, a jury could find that during
Convergent’s June 25, 2015 phone call, it failed to disclose that it was a debt collector and used
improper representations or means in describing the call as a “courtesy call” prior to attempting to
confirm Girdler’s address. See id. at 3.
Convergent’s purported conduct thus presents a risk of harm to Girdler’s concrete interest
established by the FDCPA to be free of “any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” § 1692e. That is, such a violation harms
Girdler’s interest to be informed of the identity of the debt collector and the purpose of the call so
as to allow her to make fair decisions regarding how to respond. See Horowitz v. GC Servs. Ltd.
P’ship, No. 14-cv-2512-MMA-RBB, 2016 WL 7188238, at *7 (S.D. Cal. Dec. 12, 2016) (citations
omitted). As reasoned by the Eleventh Circuit, “through the FDCPA, Congress has created a new
right—the right to receive the required disclosures in communications governed by the FDCPA—
and a new injury—not receiving such disclosures.” Church v. Accretive Health, Inc., 654 F. App’x
990, 994 (11th Cir. 2016) (per curium).

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In Church, the Eleventh Circuit, in affirming the district court’s ruling on summary
judgment, concluded that where a debt collector’s written communication failed to include the
disclosures required by §§ 1692e(11) and 1692g(a), Church established standing as she had
suffered “a concrete—i.e., ‘real’—injury because she did not receive the allegedly required
disclosures.” Id. The Eleventh Circuit explained that:
The invasion of Church’s right to receive the disclosures is not hypothetical or
uncertain; Church did not receive information to which she alleges she was entitled.
While this injury may not have resulted in tangible economic or physical harm that
courts often expect, the Supreme Court has made clear an injury need not be
tangible to be concrete. Rather, this injury is one that Congress has elevated to the
status of a legally cognizable injury through the FDCPA.
Id. (citing Spokeo, 136 S. Ct. at 1549 and Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74
(1982) (concluding that plaintiff who lost no actual housing opportunity had standing to bring Fair
Housing Act claims where she alleged that the defendant violated her legal right to truthful housing
information)); see Linehan v. Allianceone Receivables Mgmt., Inc., No. 15-cv-1012-JCC, 2016
WL 4765839, at *8 (W.D. Wash. Sept. 13, 2016) (discussing how where “[t]he goal of the FDCPA
is to protect consumers from certain harmful practices; it logically follows that those practices
would themselves constitute a concrete injury” (citations omitted)).
This Court’s conclusion that Girdler has established standing as to Count I is consistent
with that of other courts which have addressed standing as to a § 1692e claim. See, e.g., Horowitz,
2016 WL 7188238, at *7 (concluding at summary judgment that plaintiff had established standing
for violation of § 1692e(11)); Linehan, 2016 WL 4765839, at *7-8 (denying motion to dismiss §
1692e(11) for lack of standing and collecting cases); Quinn v. Specialized Loan Servicing, LLC,
No. 16-cv-2021, 2016 WL 4264967, at *4-5 (N.D. Ill. August 11, 2016) (same as to § 1692e(10)
& (11)).

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Merits of Count I
As to the merits of Count I, based upon the undisputed phone call transcripts discussed
above, D. 22-1 at 2-3, there is a triable question of fact as to whether Convergent identified Girdler
as the debtor, triggering its § 1692e(11) disclosure obligations, and acted improperly within the
meaning of § 1692e during the calls, D. 24 at 7-9. Likewise, because there is a question as to
Convergent’s identification of Girdler, there is a triable issue as to whether it was permissible for
Convergent to identify itself as a debt collector or risk violation of § 1692c(b). D. 20 at 4-5; see
Edwards v. Niagara Credit Sols., Inc., 584 F.3d 1350, 1354 (11th Cir. 2009) (addressing the “bona
fide error” defense provided for in § 1692k(c) in regards to §§ 1692e and 1692c). As such,
Convergent’s motion is denied as to this Count.
The Court notes that if such violations are found, Girdler would be entitled to the sum of
any actual damages she sustained as well as statutory damages, as the Court may allow, not to
exceed $1,000. See § 1692k(a)(1), (a)(2)(A); Goodmann v. People’s Bank, 209 F. App’x 111, 114
(3d Cir. 2006) (citations omitted) (limiting statutory damages under the FDCPA to $1,000 per
successful court action and not per violation); Sweetland v. Stevens & James, Inc., 563 F. Supp.
2d 300, 303 (D. Me. 2008) (discussing categories of actual damages). Additionally, if successful,
Girdler would be entitled to reasonable attorneys’ fees and costs, as determined by the Court,
pursuant to § 1692k(a)(3).
Merits of Count II
As to Count II, Girdler alleges that Convergent failed to disclose in writing the information
required by § 1692g(a). D. 17 ¶ 20. Pursuant to § 1692g(a), “[w]ithin five days after the initial
communication with a consumer in connection with the collection of any debt, a debt collector
shall . . . send the consumer a written notice” containing information regarding the debt and the

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consumer’s rights. While Girdler asserts that she never received the letter at issue and contests
that Convergent ever mailed it, D. 23 ¶¶ 4-6; D. 25 ¶¶ 4-6, she does not dispute that Convergent’s
“normal business procedures” would result in “caus[ing] its letter to be sent,” D. 23 ¶ 4; D. 25 ¶ 4
(alteration in original). Notably, Girdler does not contest that Convergent’s account records
indicate that the letter was properly mailed on June 26, 2015 and do not indicate that the letter was
returned. D. 23 ¶ 6; D. 25 ¶ 6. Where, as here, a debt collector presents records showing that it is
its ordinary business practice to automatically send letters to debtors and presents electronic
records indicating that the letter was properly sent, there is a presumption that the consumer
received the letter. See, e.g., Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197, 120102 (9th Cir. 1999); United States Fire Ins. Co. v. Producciones Padosa, Inc., 835 F.2d 950, 952 n.2
(1st Cir. 1987) (citations omitted).
Girdler does not present any evidence to rebut such a presumption. Rather, Girdler
contends that any presumption that Convergent complied with § 1692g(a) is inapplicable because
Convergent used the wrong mailing address. D. 24 at 9-10. Girdler admits that the letter at issue
addressed to her had the correct street address and zip code, but asserts that it erroneously lists the
city as Boston as opposed to Jamaica Plain. Id.; D. 23 ¶ 5; D. 25 ¶ 5. Girdler admits, D. 23 ¶ 5;
D. 25 ¶ 5, and the Court takes judicial notice, see United States v. Bello, 194 F.3d 18, 23 (1st
Cir.1999) (discussing Fed. R. Evid. 201(b)(2)), that Jamaica Plain is one of the neighborhoods of
Boston. Regardless of whether Girdler’s mail normally lists Jamaica Plain as the city, D. 24 at 910, the correct name, street address and zip code is listed on the letter. There is thus no triable
issue of material fact rebutting the presumption that the letter sent by Convergent was received by
Girdler. Accordingly, Convergent is entitled to summary judgment on Count II.

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IV.

Conclusion
For the aforementioned reasons, Convergent’s motion for summary judgment, D. 19, is

DENIED in part and ALLOWED in part. Convergent’s motion is DENIED as to Count I and
ALLOWED as to Count II.

So Ordered.
/s/ Denise J. Casper
United States District Judge

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