Bartl v. Enhanced Recovery Company, LLC
ORDER: (1) The Clerk of Court is directed to amend the Court's docket to remove the designation "on behalf of himself and all others similarly situated" as to Plaintiff Christopher M. Bartl. (2) Defendant Enhanced Recovery Company, L LC's motion to dismiss under Rule 12(b)(1) [Dkt. No. 46 ] is DENIED. (3) Plaintiff Christopher M. Bartl's motion for summary judgment [Dkt. No. 49 ] is GRANTED IN PART and DENIED IN PART. Summary judgment is granted in favor of Plaintiff Christopher M. Bartl as to Defendant Enhanced Recovery Company, LLCs liability under 15 U.S.C. § 1692g(b), as set forth in this Order. Summary judgment is not granted with respect to the issue of damages on this claim. (Written Opinion) Signed by Judge Joan N. Ericksen on May 3, 2017. (CBC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CHRISTOPHER M. BARTL,
Case No. 16-CV-252 (JNE/KMM)
ENHANCED RECOVERY COMPANY,
Plaintiff Christopher M. Bartl brought claims against Defendant Enhanced Recovery
Company, LLC (“ERC”) for unlawful debt collection activities in violation of the Fair Debt
Collection Practices Act (“FDCPA”). Bartl primarily claims that ERC violated 15 U.S.C.
§ 1692g(b) when ERC continued to collect a debt, without verifying the debt, after Bartl disputed
the debt by letter. ERC moved to dismiss on the theory that Bartl lacks standing to bring this
action for want of a concrete injury in fact. (See Dkt. No. 46.) Bartl moved for summary
judgment. (See Dkt. No. 49.) For the reasons that follow, the Court denies ERC’s motion to
dismiss and grants summary judgment in Bartl’s favor on the § 1692g(b) claim.
Bartl had a personal phone account with Sprint. (See Deposition of Christopher M. Bartl
(“Bartl Dep.”) 21:7-22:17, Dkt. No. 41-1.) Sprint engaged ERC to collect a $1,024.88 balance on
the account (the “Sprint debt”). (See Dkt. No. 41-1 at 34.) ERC, in a collection notice dated
March 18, 2015, informed Bartl that Sprint placed the account with ERC for collection. (See id.)
The caption is amended to omit the designation that Bartl’s action is “on behalf of himself and
all others similarly situated,” in order to properly reflect the current nature of this non-class
action. See Datz v. Whitworth, 144 F.R.D. 426, 427 n. 4 (N.D. Ga. 1992).
Prior to receiving ERC’s collection notice, Bartl was in the process of improving his
credit. (See Bartl Dep. 45:7-46:22.) He engaged a third party to help him achieve this goal. (See
id. at 46:11-22.) After Bartl received the collection notice from ERC, the third party sent a
dispute letter to ERC on Bartl’s behalf. (See id. at 25:3-5, 68:2-11; Dkt. No. 41-1 at 36.) ERC
received the letter and recorded it in its system as a dispute letter on April 15, 2015. (Deposition
of James Davis (“Davis Dep.”) 37:6-9, Dkt. No. 37-2; Dkt. No. 42-3 at 2.)
Despite receiving the dispute letter and treating it as such, ERC did not investigate or
verify the debt. (See Davis Dep. 45:22-46:1, 52:22-24.) ERC reported the debt to credit agencies
Experian, TransUnion, and Equifax on May 3, 2015. (See id. at 52:22-24; Dkt. No. 42-3 at 2.)
These agencies added the debt to Bartl’s credit reports. (See, e.g., Dkt. No. 41-1 at 41.) Due to
ERC’s reporting, Bartl suffered irritation and anxiety; he worried about his ability to obtain a
mortgage to purchase a home. (See Bartl Dep. 70:14-73:1, 74:21-77:23.) The reporting also
delayed Bartl’s process of obtaining a mortgage, (see id. at 51:19-53:1), and negatively affected
his credit score, (see Dkt. No. 41-1 at 49, 52-53, 56-57, 60). ERC later reported the debt deleted
on July 19, 2015. (Davis Dep. 52:25-53:2; Dkt. No. 42-3 at 2.)
Bartl claims that ERC violated the FDCPA when it reported the Sprint debt without
verifying the debt (under 15 U.S.C. § 1692g(b)), failed to inform Equifax that Bartl disputed the
Sprint debt when ERC nevertheless unlawfully reported the debt (under 15 U.S.C. § 1692e and
§ 1692e(8)), and used unfair and unconscionable means to collect or attempt to collect the Sprint
debt (under 15 U.S.C. § 1692f). (See Am. Compl. ¶¶ 17-20, 57-60, Dkt. No. 8.)
ERC filed a motion to dismiss under Rule 12(b)(1), asserting that Bartl lacks standing to
bring this action. (See Dkt. No. 46.) One day later, Bartl filed a motion for summary judgment on
all claims. (See Dkt. No. 49.) The Court heard argument from the Parties on both motions, (see
Dkt. No. 57), and addresses both motions herein.
A. Motion to Dismiss under Rule 12(b)(1) for Lack of Standing
ERC makes a factual challenge to the Court’s subject-matter jurisdiction and argues that
Bartl lacks standing to pursue this action. (Defendant’s Memorandum in Support of Its Motion to
Dismiss (“Def. Dismiss Br.”) 5, Dkt. No. 48.) In a factual challenge, the Court evaluates subjectmatter jurisdiction by considering matters outside the pleadings, such as testimony and affidavits.
Branson Label, Inc. v. City of Branson, 793 F.3d 910, 915 (8th Cir. 2015). The Court does not
accept the facts alleged in the complaint as true, and the plaintiff bears the burden of establishing
subject-matter jurisdiction. Id. at 915, 917.
In order for the Court to exercise its judicial power, Bartl (as plaintiff) must establish the
“irreducible constitutional minimum” of standing, which is shown if he “(1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of [ERC], and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). ERC primarily argues that
Bartl lacks an injury in fact. (See Def. Dismiss Br. 9-19; Defendant’s Reply Memorandum in
Support of Its Motion to Dismiss (“Def. Dismiss Reply Br.”) 3-5, Dkt. No. 56.) To show injury
in fact, Bartl must have suffered “an invasion of a legally protected interest that is concrete and
particularized.” Spokeo, 136 S. Ct. at 1548. (internal quotation marks omitted). Such an injury
must be “actual or imminent, not conjectural or hypothetical.” Id.
Prior to ERC’s reporting, Bartl had other disputed debts on his credit report. (See, e.g.,
Bartl Dep. 58:9-59:10, 62:2-17, 63:2-64:9.) He previously applied for a mortgage as early as late
2014, but was told that he did not qualify for a mortgage at that time. (Id. at 45:7-46:6.) Bartl
sought help improving his credit score and decided to dispute certain debts. (See id. at 46:11-22,
51:10-18.) ERC’s reporting occurred during these efforts. (See id. at 51:19-52:1.) Bartl was told
he had to wait to apply for a mortgage after ERC reported the Sprint debt because it would be
more difficult for him to get approved with the disputed Sprint debt on his credit report. (See id.
at 52:2-21.) This caused Bartl to suffer emotional distress in the form of frustration, anxiety, and
irritation. (See id. at 70:14-73:1.) He further suffered a “meltdown” that included “crying,
shaking, [and] convulsing” due to the pressure caused by ERC’s credit reporting and his
concerns that he would not close on a home. 2 (Id. at 74:21-77:23.)
The emotional distress Bartl suffered constitutes concrete and particularized injury in fact
sufficient to meet the “irreducible constitutional minimum” of standing. See Krottner v.
Starbucks Corp., 628 F.3d 1139, 1142 (9th Cir. 2010) (holding that “generalized anxiety and
stress” was sufficient to confer standing); Potocnik v. Carlson, No. 13-CV-2093 (PJS/HB), 2016
WL 3919950, at *3 (D. Minn. July 15, 2016) (“There is no doubt that emotional distress is an
injury in fact . . . .”); Davis v. Astrue, 874 F. Supp. 2d 856, 863 (N.D. Cal. 2012) (“[M]any courts
have found that emotional distress may constitute an injury-in-fact for purposes of standing.”);
cf. Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (stating that, “[f]or standing
purposes, a loss of even a small amount of money is ordinarily an ‘injury’”). This injury is fairly
traceable to ERC’s conduct because it resulted from that conduct. See Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 592 (8th Cir. 2009). And the injury is redressable under the FDCPA.
See Edeh v. Midland Credit Mgmt., Inc., 748 F. Supp. 2d 1030, 1041 (D. Minn. 2010) (“A
consumer who has suffered emotional distress has suffered [actionable damage under the
The meltdown occurred on September 23, 2015, after ERC reported the Sprint debt deleted. At
the time, however, Bartl was unaware that the debt had been deleted. (Bartl Dep. 76:19-77:1.)
FDCPA] even if the emotional distress was not severe.”), aff’d, 413 F. App’x 925 (8th Cir. 2011)
(unpublished). Therefore, Bartl has standing.
B. Summary Judgment
Summary judgment is proper “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 genuine dispute exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To
support an assertion that a fact cannot be or is genuinely disputed, a party must cite “to particular
parts of materials in the record,” show “that the materials cited do not establish the absence or
presence of a genuine dispute,” or show “that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). “The court need consider only the
cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). In
determining whether summary judgment is appropriate, a court views the record and all
justifiable inferences in favor of the non-movant. Liberty Lobby, 477 U.S. at 255.
1. The § 1692g(b) Claim
In order to show that ERC violated § 1692g(b), Bartl must prove:
(1) that he is a consumer; (2) that [ERC] is a debt collector who contacted him in
an attempt to collect a debt; (3) that he duly notified [ERC] in writing that he
disputed the debt; and (4) that [ERC] resumed or failed to cease debt-collection
efforts without first (a) obtaining verification of the debt or a copy of a judgment
and (b) mailing a copy of the verification or judgment to [Bartl].
Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1001 (8th Cir. 2011).
ERC argues that Bartl has not provided evidence that he is a consumer or that ERC is a
debt collector. (See Defendant’s Memorandum in Opposition to the Motion for Summary
Judgment (“Def. Summ. J. Br.”) 6, Dkt. No. 53.)
The FDCPA defines “consumer” as “any natural person obligated or allegedly obligated
to pay any debt.” 15 U.S.C. § 1692a(3). “Debt” is defined as “any obligation or alleged
obligation of a consumer to pay money arising out of a transaction . . . primarily for personal,
family, or household purposes.” § 1692a(5).
There is no genuine dispute that Bartl is a consumer who was allegedly obligated to pay a
personal debt. Bartl is a natural person; he was deposed in person. (See Bartl Dep.) ERC’s
collection notice alleged Bartl to be obligated to pay the Sprint debt. (See Dkt. No. 41-1 at 3435.) And the Sprint debt relates to a personal phone account. (See Bartl Dep. 21:24-22:14.)
b. Debt Collector
There is also no genuine dispute that ERC is a debt collector who contacted Bartl in an
attempt to collect the Sprint debt. ERC’s “collection notice” stated that the Sprint debt was
“placed with Enhanced Recovery Company, LLC for collection efforts” and that “[t]his is a debt
collector attempting to collect a debt.” (See Dkt. No. 41-1 at 34-35.)
c. Dispute Letter
ERC argues that because Bartl did not send the alleged dispute letter himself, the letter
did not trigger § 1692g(b)’s protections prohibiting further collection efforts until the debt is
verified to the consumer. (See Def. Summ. J. Br. 9-10.) Bartl responds that the letter was sent by
someone on his behalf. (See Plaintiff’s Reply Memorandum in Support of His Motion for
Summary Judgment (“Pl. Summ. J. Reply Br.”) 15, Dkt. No. 55.)
In order to activate the protections in § 1692g(b), the FDCPA requires a “consumer” to
“notif[y] the debt collector in writing . . . that the debt, or any portion thereof, is disputed, or that
the consumer requests the name and address of the original creditor.” § 1692g(b). In this case, a
third party sent the letter to ERC on Bartl’s behalf after Bartl engaged the third party for
assistance with his credit. (See Bartl Dep. 25:3-5, 68:2-11.) Because the letter was sent with
Bartl’s authorization, the letter qualifies as a dispute letter for the purposes of § 1692g(b). See
Sayles v. Advanced Recovery Sys., Inc., 206 F. Supp. 3d 1210, 1213 n.4 (S.D. Miss. 2016).
Next, ERC argues that Bartl’s dispute letter did not effectively dispute the Sprint debt
because the letter only denies that Bartl owes ERC money, not that Bartl owes Sprint—the
holder of the debt. (See Def. Summ. J. Br. 10-11.) Bartl responds that ERC treated it as a dispute
letter internally. (See Pl. Summ. J. Reply Br. 14-15.)
FDCPA liability turns on the application of the “unsophisticated consumer” standard.
Nelson v. Midland Credit Mgmt., Inc., 828 F.3d 749, 752 (8th Cir. 2016). This standard requires
the Court to evaluate compliance with the FDCPA through the eyes of consumers with belowaverage intelligence. See Janson v. Katharyn B. Davis, LLC, 806 F.3d 435, 437 (8th Cir. 2015).
Under this standard, consumers are not required “to assert their rights in legally precise phrases.”
Gruber v. Creditors’ Prot. Serv., Inc., 742 F.3d 271, 274 (7th Cir. 2014). Accordingly, a dispute
letter is effective to trigger § 1692g(b)’s protections even if the letter fails to perfectly state that a
debt is disputed. See id. A dispute letter is sufficient if it puts a debt collector on notice that the
consumer is invoking § 1692g(b)’s protections. See id.; see also Horkey v. J.V.D.B. & Assocs.,
Inc., 333 F.3d 769, 773 (7th Cir. 2003) (“It is . . . enough to put debt collectors on notice [that an
FDCPA protection applies].”).
Bartl’s letter sufficiently disputed the Sprint debt so as to trigger § 1692g(b)’s
protections. The letter references ERC’s collection notice by number, states that Bartl
“dispute[s]” the debt, and demands “validation” of the debt. (Dkt. No. 41-1 at 36.) It requests
documents showing the creation of the debt and documents entitling ERC to collect on the debt.
(Id.) The letter also demands that ERC “stop all collection activity pursuant to the FDCPA”
including, for example, “furnish[ing] any information to [Bartl’s] credit report(s).” (Id.) These
demands were sufficient to put a sophisticated debt collector like ERC on notice that Bartl was
disputing the debt and invoking § 1692g(b)’s protections. 3 To wit, ERC itself interpreted the
letter as a dispute letter. (See Davis Dep. 37:3-5, 45:7-46:1.) Thus, upon receipt of the letter,
ERC had to verify the debt to Bartl before engaging in further collection efforts.
d. Further Collection Efforts
ERC does not dispute that it reported the Sprint debt to credit reporting agencies, without
verifying the debt, after ERC received Bartl’s dispute letter. (See, e.g., Def. Summ. J. Br. 2-3, 911.) Rather, ERC argues that it did not violate § 1692g(b) because reporting a debt to credit
reporting agencies is not a collection effort. (Id. at 11-12.) Bartl argues that reporting is a
prohibited collection effort, citing the Court’s previous holding in Edeh v. Midland Credit
Mgmt., Inc., 748 F. Supp. 2d 1030, 1034-36 (D. Minn. 2010). (See Plaintiff’s Memorandum in
Support of His Motion for Summary Judgment (“Pl. Summ. J. Br.”) 6-9, Dkt. No. 51.)
Edeh held that credit reporting is a collection effort. See 748 F. Supp. 2d at 1036 (citing
Purnell v. Arrow Fin. Servs., LLC, 303 F. App’x 297, 304 n. 5 (6th Cir. 2008) (unpublished);
Quale v. Unifund CCR Partners, 682 F. Supp. 2d 1274, 1279 (S.D. Ala. 2010); Semper v. JBC
Legal Grp., No. 04-CV-2240L, 2005 WL 2172377, at *4 (W.D. Wash. Sept. 6, 2005)). Central to
the decision was FTC guidance stating that “debt collectors use the reporting mechanism as a
tool to persuade consumers to pay, just like dunning letters and telephone calls.” Id. (citing Staff
Opinion Letter from John F. LeFevre, Attorney, Federal Trade Commission, Office of the
Although Bartl’s letter explicitly denies that Bartl owes ERC—rather than Sprint—money, the
letter does not concede or imply that Bartl accepts that he owes Sprint on the debt. (See Dkt.
No. 41-1 at 36.) The most that can be inferred from the focus on ERC is that the letter is a
response to ERC’s collection notice requesting payment directly to ERC. (See id. at 34.) To
require Bartl to anticipate and reference the exact arrangement between ERC and Sprint when
disputing the debt would contradict the unsophisticated consumer standard.
Secretary, to Robert G. Cass, Compliance Counsel, Commercial Financial Services (Dec. 23,
1997), 1997 WL 33791232, at *1). That guidance remains persuasive; for example, James Davis,
an ERC employee, acknowledged in his deposition for this case that reporting debts is said to
assist in collection efforts. (See Davis Dep. 35:3-36:22.) Regardless of ERC’s intent in reporting
the Sprint debt, the reporting constitutes a collection effort in violation of § 1692g(b). 4 See Edeh,
748 F. Supp. 2d at 1035-36; see also McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 915
(8th Cir. 2014) (stating that related reasoning in Edeh is “persuasive”).
In summary, there are no genuine disputes as to any material facts, and the record shows
that Bartl is entitled to judgment as a matter of law on his § 1692g(b) claim. However, because
Bartl has not provided evidence or argument as to the amount of damages attributable to the
§ 1692g(b) violation, the Court reserves the issue of damages for future disposition.
2. The § 1692e and § 1692e(8) Claims
Bartl’s claims under § 1692e and § 1692e(8) require that he prove, among other things,
that ERC made a “false, deceptive, or misleading misrepresentation . . . in connection with the
collection of any debt.” § 1692e. Bartl has not provided evidence that ERC made any
misrepresentations in connection with its collection activities. For example, the record does not
show that ERC failed to communicate that the Sprint debt was disputed when ERC reported the
debt to Equifax, as is alleged. (See Am. Compl. ¶¶ 18-19, 58-59.) Rather, the record shows that
ERC reported to Equifax that the Sprint debt was disputed—as it did to TransUnion and
Experian. (Davis Dep. 20:21-21:16.) Therefore, Bartl is not entitled to summary judgment on his
§ 1692e and § 1692e(8) claims.
ERC’s report deleting the debt is not actionable, however, because deletion, standing alone, is
not a tool used to persuade consumers to pay. See Carlisle v. Stellar Recovery, Inc., --- F.
Supp. 3d ---, No. 15-CV-918 (EGS), 2016 WL 6426363, at *3 (D.D.C. Oct. 28, 2016).
3. The § 1692f Claim
Bartl alleged his § 1692f claim as an alternative to relief. (See Am. Compl. ¶¶ 20, 60; see
also Pl. Summ. J. Br. 9.) A general claim under § 1692f fails as a matter of law if it is not
premised on conduct independent of that which forms the basis of other FDCPA violations. See
Ness v. Gurstel Chargo, P.A., 933 F. Supp. 2d 1156, 1164 n.3 (D. Minn. 2013); Baker v. Allstate
Fin. Servs., Inc., 554 F. Supp. 2d 945, 953 (D. Minn. 2008). Because the Court finds that ERC
violated § 1692g(b), and Bartl’s § 1692f claim is based on the same conduct as the § 1692g(b)
claim, Bartl is not entitled to summary judgment on the § 1692f claim.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
The Clerk of Court is directed to amend the Court’s docket to remove the
designation “on behalf of himself and all others similarly situated” as to
Plaintiff Christopher M. Bartl.
Defendant Enhanced Recovery Company, LLC’s motion to dismiss under
Rule 12(b)(1) [Dkt. No. 46] is DENIED.
Plaintiff Christopher M. Bartl’s motion for summary judgment [Dkt. No.
49] is GRANTED IN PART and DENIED IN PART. Summary judgment
is granted in favor of Plaintiff Christopher M. Bartl as to Defendant
Enhanced Recovery Company, LLC’s liability under 15 U.S.C.
§ 1692g(b), as set forth in this Order. Summary judgment is not granted
with respect to the issue of damages on this claim.
Dated: May 3, 2017.
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
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