Scheffler v. Gurstel Chargo, P.A.
ORDER granting 64 Motion for Summary Judgment (Written Opinion) Signed by Senior Judge David S. Doty on 4/19/2017. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-4436(DSD/SER)
Troy K. Scheffler,
Gurstel Chargo, P.A.
Peter J. Nickitas, Esq., 431 South 7th Street, Suite 2446,
Minneapolis, MN 55415, counsel for plaintiff.
Manuel H. Newburger, Esq. and Barron & Newburger, PC, 1212
Guadalupe, Suite 104, Austin, TX 78701 and Amy M. Goltz, Esq.
and Gurstel Chargo, P.A., 6681 Country Club Drive, Golden
Valley, MN 55427, counsel for defendant.
This matter is before the court upon the motion for summary
judgment by defendant Gurstel Chargo P.A. Based on a review of the
reasons, the court grants the motion.
This debt-collection dispute arises out of plaintiff Troy
$9,896.90 owed to Discover Bank.
Scheffler Decl. Ex. B.
Second Am. Compl. ¶¶ 5-7;
Scheffler is a former debt collector who
has filed many lawsuits in this district alleging violations of the
Fair Debt Collection Practice Act (FDCPA).
Gurstel is a law firm
engaged in debt collection.
On July 31, 2009, Gurstel secured a judgment against Scheffler
on Discover’s behalf.
Second Am. Compl. ¶ 6; Answer ¶ 6.1
2014, Gurstel sent a garnishment summons to Financial One Credit
Second Am. Compl. ¶ 9; Answer ¶ 9.
the garnishment summons to Scheffler.
Gurstel sent a copy of
Second Am. Compl. ¶ 9;
Answer ¶ 9. In early August 2014, Scheffler mailed Gurstel a cease
letter, and Gurstel acknowledged receipt of the letter. Second Am.
Compl. ¶ 17; Answer ¶ 17.
In early August 2015, Gurstel sent Financial One Credit Union
a garnishment notice.
Second Am. Compl. ¶ 19.
On August 11,
Gurstel sent copies of the garnishment notice to Scheffler with a
cover letter stating the following:
These documents were served upon Financial One Credit
Union on or about August 6, 2015.
If you have any
questions, please contact one of our collections
representatives at 800-514-0791.
Scheffler Decl. Ex. D, at 2 (emphasis in original).
concludes with the following admonition:
This communication is from a debt collector and is an
attempt to collect a debt. Any information obtained will
be used for that purpose.
On September 21, 2015, Scheffler called the number on the
Neither party provided complete documentation regarding the
underlying debt, judgment, or the parties’ communications. The
court will accept the undisputed facts as true for purposes of this
motion. Allegations which are disputed and unsupported will not be
letter and spoke to John Thomas, a Gurstel employee.
Decl. Ex. G; Goltz Decl. Ex. 13.
Scheffler claims that he called
only to ask questions about the garnishment notice but that Thomas
“insisted on attempting to collect the debt.”
Second Am. Compl. ¶
28. The call, which the court has listened to several times, tells
a different story.
See Scheffler Decl. Ex. E; Goltz Decl. Ex. 13.
garnishment notice beyond asking why Gurstel sent it to him:
Are you calling in regards
garnishment disclosure you received?
Scheffler: Well yeah I mean I got that. I mean you guys
have on here call if I have any questions.
[unintelligble]. (Salter interrupts)
Alright, so what’s the what’s the question you
Scheffler: Well, I guess why are you guys sending this
stuff to, to I don’t know, I don’t even know why you guys
are bothering really to be honest with you.
Scheffler Decl. Ex. G, at 1-2. Thereafter, Scheffler baited Salter
into discussing possible resolution of the debt:
Salter: What’s your confusion? You have twelve thousand
none hundred and twenty dollar debt that they’re trying
Ok, so what am I going to do about that?
Are you able to pay it?
The transcript provided by Scheffler indicated that the
Gurstel employee is named John Thomas. The call indicates that his
full name is John Thomas Salter and the court will refer to him as
Salter: Ok. Uhh, are you in a position to where you
wanna try to resolve it?
Scheffler: Well I mean possibly at some point, I mean
what are you saying, what are you offering?
Id. at 2.
Scheffler then complained that Gurstel was improperly
trying to collect on the debt, to which Salter responded, “You
called me right?”
Id. at 5.
When it became clear that the
conversation would not be productive, Salter said “I mean I don’t
wanna go round and round with you.
If your intent is to not
resolve it that’s fine; or if you don’t have the ability to do so
The call concluded soon thereafter.
Id. at 6.
On November 20, 2015, Scheffler commenced this putative class
action in Hennepin County District Court, alleging that Gurstel’s
Gurstel timely removed to this court.
On March 1, 2017, Scheffler
filed a second amended complaint alleging violations of 15 U.S.C.
§§ 1692c(c) & 1692e(10).
Gurstel now moves for summary judgment.
Standard of Review
“The court shall grant summary judgment 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.
The nonmoving party, however, may not rest upon mere
denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.
A party asserting that a genuine dispute exists — or
cannot exist — about a material fact must cite “particular parts of
materials in the record.”
Fed. R. Civ. P. 56(c)(1)(A).
plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
Celotex, 477 U.S. at 322-23.
Congress enacted the FDCPA to protect consumers “in response
to abusive, deceptive, and unfair debt collection practices.”
Schmitt v. FMA Alliance, Ltd., 398 F.3d 995, 997 (8th Cir. 2005).
unsophisticated-consumer standard which ... protects the uninformed
or naive consumer, yet also contains an objective element of
peculiar interpretations of collection [attempts].”
Diversified Collection Serv., Inc., 380 F.3d 316, 317–18 (8th Cir.
2004) (citations and internal quotation marks omitted).
unsophisticated consumer test is a practical one, and statements
that are merely susceptible of an ingenious misreading do not
violate the FDCPA.”
Peters v. Gen. Serv. Bureau, Inc., 277 F.3d
1051, 1056 (8th Cir. 2002) (citations and internal quotation marks
15 U.S.C. § 1692c(c)
consumers “with respect to the debt” if the consumer “notifies a
debt collector in writing that the consumer refuses to pay a debt
or that the consumer wishes the debt collector to cease further
Scheffler argues that Gurstel violated § 1692c(c) by sending the
garnishment notice to him with a cover letter inviting him to call
Gurstel with any questions.3
The court disagrees.
As Scheffler well knows given his past involvement in similar
litigation, Gurstel did not violate the FDCPA by sending the
In his memorandum of law, Scheffler also references
“superfluous correspondence” that gave him “a directive to contact
one of Gurstel’s collection representatives.” ECF No. 73, at 11.
It is unclear whether he is referencing letters in addition to the
August 11, 2015, letter. Because the court has not been provided
with additional correspondence, it will consider only the August 11
A creditor may communicate with a debtor after receiving
a cease letter to notify the consumer that the debt
collector or creditor may invoke specified remedies which
are ordinarily invoked by such debt collector or
creditor. That is exactly what the garnishment letter
was — a notification that Capital One would be attempting
to collect the debt Scheffler owed.
Scheffler v. Messerli & Kramer P.A., 791 F.3d 847, 848 (8th Cir.
§ 1692c(c); see Scheffler Decl. Ex. G, at 5 (“Scheffler:
don’t mind the notification of a bank garnishment.
You have to do that ....”).
Nor did Gurstel violate the
FDCPA by inviting Scheffler to call the number provided if he had
See Lindley v. TRS Recovery Assocs., Inc., No. 12-
109, 2012 WL 6201175, at *5 (S.D. Tex. Dec. 12, 2012) (“[T]he
letter’s invitation for Lindley to call if he needed any assistance
did not transform this informative letter into an effort to collect
The court is unpersuaded by Scheffler’s argument -
made during the hearing on this matter - that Gurstel “subliminally
commanded” him to call the number provided by putting it in bold
Scheffler initiated, is likewise insufficient to constitute an
Salter handled the call appropriately and only
asked Scheffler about resolving the debt after Scheffler said “Ok,
so what am I going to do about that [referring to the debt]?”
Scheffler Decl. Ex. G, at 2.
When reviewed as a whole, the call
was an unsubtle and ultimately unsuccessful attempt to provoke
Salter into committing an FDCPA violation. At no time did Gurstel,
either in writing or in the telephone call, demand payment on the
debt or otherwise violate the FDCPA as alleged.
than pressuring Scheffler to pay the debt, Salter simply said, “If
your intent is to not resolve it that’s fine; or if you don’t have
the ability to do so that’s fine.”
Id. at 5.
Even if construed as an effort to collect on the debt,
Scheffler’s conduct and words constituted a waiver of his cease
See Backlund v. Messerli & Kramer, P.A., 964 F. Supp. 2d
1010, 1015-16 (D. Minn. 2010) (quoting Clark v. Capital Credit
Collections Servs., Inc., 460 F.3d 1162, 1168 (9th Cir. 2006))
(adopting the view that “a debtor may waive the rights created by
a cease communications directive” if the waiver is “knowing and
voluntary” and “the least sophisticated debtor would understand
that he or she was waiving his or her rights under § 1692c(c)”).
Scheffler initiated the phone call to Gurstel, responded vaguely
when asked what questions he had about the garnishment notice, and
steered the conversation to possible resolution of the debt.
waiver was thus knowing and voluntary, just as it would be were he
an unsophisticated debtor.
15 U.S.C. § 1692e(10)
Section 1692e(10) prohibits debt collectors from using “any
false or deceptive means to collect or attempt to collect any debt
or to obtain information concerning a customer.”
that Gurstel violated § 1692e(10) by falsely indicating that he
could call the number on the letter to discuss the garnishment
notice with a lawyer.
Scheffler’s argument is unavailing.
letter does not state that the number provided will be answered by
an attorney prepared to answer questions solely about garnishment.
Rather, the letter expressly notified Scheffler that he could
contact a “collection representative” by calling the number.
he in fact spoke with a collection representative when he called.
As a result, there is nothing deceptive about the information
Scheffler, whose experience in debt collection and FDCPA litigation
belies his grievance, but neither would it be deceiving to an
The fact that the letter also includes a so-called miniMiranda warning4 does nothing to change the court’s conclusion.
Although the warning may not have been necessary given the purely
informative nature of the letter, it did not transform the letter
into a debt-collection effort. See Lewis v. ACB Bus. Servs., Inc.,
135 F.3d 389, 399 (6th Cir. 1998) (“[T]he mere fact that the letter
This is a warning in which debt collectors identify
themselves as such and disclose that they are communicating with
the consumer to collect a debt.
Zortman v. J.C. Christensen &
Assocs., Inc., 870 F. Supp. 2d 694, 700 (D. Minn. 2012).
states at the bottom that it ‘is an attempt to collect a debt’ does
not transform the letter into an unlawful demand for payment.”).
Finally, as already discussed, the call itself was not a debtcollection effort in violation of the FDCPA.
As a result, Gurstel
is entitled to summary judgment.
Accordingly, based on the above, IT IS HEREBY ORDERED that:
The motion for summary judgment [ECF No. 64] is granted;
The case is dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: April 19, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court
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