Duranseau v. Portfolio Recovery Associates, Inc.
Filing
122
ORDER. IT IS HEREBY ORDERED THAT PRA's motion for summary judgment 97 and Duranseau's motion for partial summary judgment 104 are DENIED as to Duranseau's claim that PRA failed to send him the written notice required by 15 U.S.C. § 1692g(a). (Written Opinion). Signed by Judge Patrick J. Schiltz on February 13, 2015. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
HARVEY DURANSEAU,
Case No. 13‐CV‐0955 (PJS/LIB)
Plaintiff,
v.
ORDER
PORTFOLIO RECOVERY ASSOCIATES,
L.L.C.,
Defendant.
Matthew J. Gilbert, GILBERT LAW OFFICE PLLC; and Charlie R. Alden,
ALDEN LAW OFFICES, for plaintiff.
Jennifer M. Robbins and Amira A. ElShareif, ROBINS, KAPLAN, MILLER
& CIRESI L.L.P., for defendant.
Plaintiff Harvey Duranseau sued defendant Portfolio Recovery Associates, LLC
(“PRA”), alleging that PRA violated the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. §§ 1692 et seq., violated various Minnesota statutes, and committed various
torts when it repeatedly called him to demand that he pay the debt of a “Thomas
Duranseau.” PRA moved for judgment on the pleadings, and the Court granted the
motion in part, narrowing Duranseau’s claims to the following: (1) a claim that PRA
violated §§ 1692d and 1692d(5) by repeatedly and continuously calling with the intent
to annoy, abuse, or harass; (2) a claim that PRA violated §§ 1692d and 1692d(2) and
intentionally inflicted emotional distress by using obscene or profane language during a
phone call on or about December 28, 2012; and (3) a claim that PRA violated § 1692g(a)
by failing to timely send the prescribed written notice after its first communication with
Duranseau. ECF No. 43.
Following discovery, both parties moved for summary judgment on Duranseau’s
remaining claims. ECF Nos. 97, 104. The Court denied the motions, except the Court
agreed with PRA that Duranseau’s §§ 1692d and 1692d(5) claim was barred by the
FDCPA’s statute of limitations (§ 1692k(d)) insofar as that claim related to phone calls
made more than one year before Duranseau filed this lawsuit. ECF No. 118 at 2. The
Court also ordered supplemental briefing on two issues regarding Duranseau’s
§ 1692g(a) claim:
1.
Is plaintiff’s § 1692g(a) claim barred by the statute of
limitations, given that plaintiff swears that
defendant’s “initial communication” with him about
the debt occurred no later than March 25, 2011 (see
ECF No. 105 at ¶¶ 3‐4, 7)?
2.
Assuming that defendant’s “initial communication”
with plaintiff about the debt occurred on March 25,
2011, to whom and to what address was defendant
obligated to send the “written notice” required by
§ 1692g(a)?
ECF No. 118 at 2.
After reviewing the supplemental briefs submitted by the parties, ECF Nos. 116,
117, the Court now concludes that neither party is entitled to summary judgment on
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Duranseau’s § 1692g(a) claim. That claim will be tried to a jury, along with Duranseau’s
two other claims.
I. STANDARD OF REVIEW
Summary judgment is warranted “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 dispute over a fact is “material” only if its resolution
might affect the outcome of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “The evidence of the non‐movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255.
II. STATUTE OF LIMITATIONS
Section 1692g(a) requires that, “[w]ithin five days after the initial communication
with a consumer in connection with the collection of any debt,” a debt collector must
send a written notice to the consumer identifying the amount of the debt and the name
of the creditor to whom the debt is owed and providing specific information about the
consumer’s rights under the FDCPA. Duranseau’s account of PRA’s alleged phone calls
has been a bit of a moving target, but, according to Duranseau’s most recent sworn
statement, PRA first called him on March 25, 2011. ECF No. 105 ¶¶ 3‐4, 7. Duranseau
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alleges that PRA violated § 1692g(a) because it failed to send the required notice to him
within five days of March 25, 2011.
When it moved for summary judgment on Duranseau’s § 1692g(a) claim, PRA
did not argue that the claim was barred by the statute of limitations. This puzzled the
Court. The FDCPA requires that a claim be brought “within one year from the date on
which the violation occurs.” § 1692k(d). According to Duranseau, PRA violated
§ 1692g(a) when it failed to send him the required written notice by March 30, 2011.
Thus, it would appear that this alleged violation occurred no later than March 30, 2011.
Yet Duranseau did not file suit until April 25, 2013—long after the one‐year statute of
limitations would seem to have expired. Because it appeared to the Court that
Duranseau’s § 1692g(a) claim was barred by the statute of limitations, the Court asked
for supplemental briefing on the issue.
The Court erred in making that request. “[T]he law typically treats a limitations
defense as an affirmative defense that the defendant must raise at the pleadings stage
and that is subject to rules of forfeiture and waiver.” John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 133 (2008). The FDCPA’s statute of limitations is no exception.
See Kropelnicki v. Siegel, 290 F.3d 118, 130 n.7 (2d Cir. 2002) (in FDCPA case, statute of
limitations is an affirmative defense not to be raised by district court sua sponte);
Marshall‐Mosby v. Corp. Receivables, Inc., 205 F.3d 323, 327 (7th Cir. 2000) (FDCPA’s
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statute of limitations is a non‐jurisdictional affirmative defense, not reviewable by court
of appeals sua sponte). In its answer to Duranseau’s second amended complaint, PRA
did not plead the statute of limitations as an affirmative defense to any of Duranseau’s
claims (see ECF No. 90 at ¶¶ 43‐51), and, as noted, PRA did not argue that Duranseau’s
§ 1692g(a) claim was barred by the statute of limitations when PRA moved for
summary judgment. PRA has thus forfeited its statute‐of‐limitations defense to
Duranseau’s § 1692g(a) claim.1
III. NOTICE REQUIREMENT
Again, § 1692g(a) requires that , “[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 certain information,
including the amount of the debt, the name of the creditor to whom the debt is owed,
1
By contrast, PRA has not forfeited its statute‐of‐limitations defense to
Duranseau’s §§ 1692d and 1692d(5) claim. True, PRA did not plead the statute of
limitations as an affirmative defense to any of Duranseau’s claims. But a defendant
may raise an affirmative defense for the first time on motion for summary judgment, as
long as the plaintiff is not unfairly surprised. See First Union Nat’l Bank v. Pictet Overseas
Trust Corp., 477 F.3d 616, 622 & n.5 (8th Cir. 2007). Duranseau could hardly claim to be
unfairly surprised. In fact, Duranseau appears to have been the first to mention the
statute of limitations in connection with his §§ 1692d and 1692d(5) claim, preemptively
advancing a continuing‐violation theory in a footnote in his memorandum in support of
his summary‐judgment motion. ECF No. 107 at 14 n.8. After PRA took up the issue in
its response, ECF No. 108 at 3‐4, Duranseau addressed the issue on the merits in his
reply and did not contend that PRA had waived or forfeited the defense, ECF No. 111 at
5.
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and specific information about the consumer’s rights under the FDCPA. The parties do
not seem to dispute that PRA mailed various § 1692g(a) notices in connection with the
debt of Thomas Duranseau. The complication is that PRA was making phones calls to
Harvey Duranseau in Big Falls, Minnesota, but it was mailing the § 1692g(a) notices to
Thomas Duranseau in Rose City, Michigan. ECF No. 106 Ex. 3 at 3; ECF No. 116 at 12;
ECF No. 117 at 8‐9. PRA argues that it thought that it was talking to Thomas
Duranseau, and thus it acted properly in sending the § 1692g(a) notices to Thomas
Duranseau. Duranseau responds that PRA knew that it was not talking to Thomas
Duranseau—and that, even if PRA thought that it was talking to Thomas Duranseau, it
should be held strictly liable for not sending the § 1692g(a) notices to Harvey
Duranseau.
This is an unusual situation, and neither the text of § 1692g(a) nor the case law
provides much guidance. As PRA points out, § 1692g(a) requires only that notice be
sent, not that it be received. See Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197,
1201‐02 (9th Cir. 1999) (debt collector did not violate FDCPA when it mailed notice to
debtors’ home in ordinary course of business, though debtors said they never received
it). But § 1692g(a) requires notice to be sent to “the consumer.” Accordingly, courts
have required debt collectors to send the § 1692g(a) notice to a “valid and proper
address where the consumer may actually receive it.” Ponce v. BCA Fin. Servs., Inc., 467
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F. App’x 806, 807‐08 (11th Cir. 2012); Johnson v. Midland Credit Mgmt. Inc., No. 1:05 CV
1094, 2006 WL 2473004, at *12 (N.D. Ohio Aug. 24, 2006); see also Johnson v. CFS II, Inc.,
No. 12‐CV‐01091‐LHK, 2013 WL 1809081, at *9 (N.D. Cal. Apr. 28, 2013); Nikkel v.
Wakefield & Assocs., Inc., Civil Action No. 10‐cv‐02411‐PAB‐CBS, 2012 WL 5571058, at
*12‐13 (D. Colo. Nov. 15, 2012); Rogozinski v. NCO Fin. Sys., Inc., Civil Action
No. 11‐2594, 2012 WL 5287896, at *4‐5 (E.D. Pa. Oct. 25, 2012); Peterson v. PRA, LLC,
Civil No. 09‐2707, 2010 WL 2015260, at *3‐4 (D.N.J. May 19, 2010), rev’d on other grounds,
430 F. App’x 112 (3d Cir. 2011).
The problem in this case is that there are two consumers. The FDCPA defines
“consumer” to mean “any natural person [1] obligated or [2] allegedly obligated to pay
any debt.” § 1692a(3). Thomas Duranseau is a “consumer,” because he is “obligated”
to pay the debt. But Harvey Duranseau is also a “consumer,” because PRA
representatives “alleged[]” that he was “obligated to pay [the] debt.” Specifically, PRA
representatives told the person to whom they were speaking—that is, Harvey
Duranseau—that he was indebted to them. See, e.g., ECF No. 106 Ex. 3 at 10 (PRA
representative tells Harvey Duranseau that “[y]ou owe us a negative balance of $344”
and asks him to “pay your bill sir”).
In the past, when a debt collector has known the identity of the consumer with
whom it has communicated, but the debt collector has sent the § 1692g(a) letter to an
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incorrect address, courts have essentially held that whether the debt collector is liable
for violating § 1692g(a) depends on whether the debt collector’s mistake was
reasonable.2 No court, as best as the Court can tell, has ever held that a debt collector is
strictly liable for sending a § 1692g(a) notice to an incorrect address (the position
advocated by Duranseau). It seems to the Court that this same “reasonableness”
principle should apply to the unusual facts of this case.
Suppose, for example, that a debt collector who is trying to collect a debt of A
calls a phone number that it believes to belong to A and speaks about the debt to a
person whom it reasonably believes to be A, but who is in fact B.3 In this situation, it
would make little sense to hold that the debt collector has a legal obligation to send a
2
See, e.g., Johnson, 2006 WL 2473004, at *12 (“If the debt collector knows the
validation notice was sent to the wrong address, the debt collector has not complied
with the plain language of the statute.”); Rogozinski, 2012 WL 5287896, at *4 (“The cases
Plaintiff cites . . . all stand for the notion that a Defendant has not complied with 1692g
when it either had the letter returned as undeliverable or knowingly has sent the letter to
a wrong address.”); Peterson, 2010 WL 2015260, at *3 (“In order to create a genuine issue
of material fact on this point, Defendant would need to come forth with evidence
suggesting that there is a reason to suppose that Plaintiff would receive mail sent to the
Skyline Road address.”); see also Newton v. PRA, LLC, No. 2:12‐cv‐698, 2014 WL 340414,
at *11 (S.D. Ohio Jan. 30, 2014) (“While Plaintiff suggests that the notice should have
been sent to another address, he does not dispute the evidence submitted by Defendant
demonstrating that the notice was sent to his wife’s last known address and that the
notice was not returned.”).
3
The FDCPA would cover the communication with B in this instance, since
§ 1692a(3) defines “consumer” to include persons “allegedly obligated to pay any debt,”
even when the allegation is mistaken. See Dunham v. PRA, LLC, 663 F.3d 997, 1000‐02
(8th Cir. 2011).
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§ 1692g(a) notice to B. The debt collector does not even know that B exists, much less
where B lives, and thus it is literally impossible for the debt collector to send a
§ 1692g(a) notice to B. As long as the debt collector did not have reason to know that it
was speaking to B, § 1692g(a) does not require the debt collector to send written notice
to B.
Suppose instead that a debt collector who is trying to collect a debt of A calls a
phone number that it believes to belong to A, but learns in the course of its conversation
with the person who answers the phone that it is speaking to B. If the debt collector
then alleges that B is liable for A’s debt, the debt collector would clearly have a duty
under § 1692g(a) to send written notice to B. It would make no sense to hold that the
debt collector could meet its obligation under § 1692g(a) by sending written notice only
to A.
The question, then, is whether PRA knew or reasonably should have known that
the “consumer” to whom it was communicating was Harvey Duranseau, not Thomas
Duranseau. The record does not permit the Court to grant summary judgment to either
party on this issue. The first call that Duranseau claims to have received about the debt
is documented in one of PRA’s internal notes. ECF No. 105 ¶¶ 3‐4, Ex. A. (Apparently,
any recording of that call was not kept because the call lasted fewer than 60 seconds.
Privette Decl. at 29‐31.) The note is cryptic because it consists largely of abbreviations
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and shorthand. The note says that the person on the phone was “immediately irate,
yelling [and] s[ai]d that he was relative and atty for [the debtor] . . . just very upset,
s[ai]d don’t call there again.” ECF No. 105 Ex. A; see also Privette Decl. at 40‐42, 56‐59
(explaining abbreviations). At the summary‐judgment hearing, PRA suggested that this
phone call was answered by someone other than Harvey Duranseau.
Later calls do not shed much light on PRA’s knowledge of the identity of the
person whom it was calling. At times, Duranseau indicates that he is not Thomas, but
because much of what Duranseau says consists of sarcastic, obscenity‐laced tirades, it is
difficult to say what a reasonable debt collector in PRA’s position should have known.
A typical conversation—save for the lack of obscenities—is the following:
PRA:
Hi Thomas.
Plaintiff:
Hi Mary.
PRA:
Hello?
Plaintiff:
Hello.
PRA:
Hi, is this Thomas?
Plaintiff:
Is this Mary?
PRA:
No, this is not Mary. Is this Thomas?
Plaintiff:
Is this Joan?
PRA:
No, this is not Joan.
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Plaintiff:
Is this Larry?
PRA:
You already asked me if this is Mary. I’m not Mary and I’m not
Joan. Thomas, this is Jasmin.
Plaintiff:
Oh. Well, I don’t know you and this ain’t Thomas. Why would
you talk on the phone and say “Is Thomas, Thomas?” Don’t you
know how to identify yourself before you start a conversation?
PRA:
Why would you—why would you identify yourself as Thomas? Is
that who you are, and then—.
Plaintiff:
No.
[cross‐talk]
PRA:
[—inaudible] conversation. You have a great day sir.
PRA:
He said, “Why did you call my—I said Thomas.” It’s not Thomas.
You said you was. You said you were Thomas. I said
“Thomas”—[inaudible]
[line disconnected]
ECF No. 106 Ex. 1 at PRAHD0000066 (recording), Ex. 3 at 5‐6 (transcript).
Given the confusion in the record—including confusion about when PRA
initially contacted Harvey Duranseau—the jury will have to determine whether (and
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when) PRA knew or reasonably should have known that the “consumer” with whom it
was communicating was not Thomas Duranseau, but Harvey Duranseau.
ORDER
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT PRA’s motion for summary judgment [ECF No. 97] and
Duranseau’s motion for partial summary judgment [ECF No. 104] are DENIED as to
Duranseau’s claim that PRA failed to send him the written notice required by 15 U.S.C.
§ 1692g(a).
Dated: February 13, 2015
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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