Drake v. Enhanced Recovery Company, LLC

Filing 47

OPINION AND ORDER: Defendant's Motion for Summary Judgment 27 is GRANTED. Accordingly, this case is dismissed. Signed on 3/19/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

RAYMOND DRAKE,

Case No. 6:15-cv-01899
OPINION AND ORDER

Plaintiff,
vs.
ENHANCED RECOVERY COMPANY, LLC,
Defendant.

AIKEN, District Judge:
Plaintiff Raymond Drake brought suit against defendant Enhanced Recovery Company,
LLC ("ERC") for, inter alia, violations of the Fair Debt Collection Practices Act ("FDCPA") and
Fair Credit Reporting Act ("FCRA"). (doc. 1). Defendant now moves for summary judgment on
all claims. (doc. 27). In the alternative, defendant also moves for summary judgment on (1) all
portions of plaintiffs claims that are factually unsupported or otherwise fail as a matter of law;
(2) defendant's bona fide enor defense; and (3) plaintiffs claims for "credit denial" damages and
punitive damages. For the reasons set forth herein, defendant's Motion for Summary Judgment
is GRANTED.

II I
Page 1 - OPINION AND ORDER

BACKGROUND
This suit arises from a case of mistaken identity. In March 2015, a delinquent AT&T
account ("the Account") belonging to a Raymond Drake, not the plaintiff, was placed with
defendant for collection. 1 The information defendant received with the placement included the
amount owed on the Account ($98), the debtor's name (Raymond Drake), and the debtor's
address (Los Angeles, California). Defendant did not receive the debtor's social security number,
date of birth, or any additional identifying infmmation from AT&T, nor did defendant obtain this
info1mation from another source, or possess other such information.
Pursuant to its standard procedures, defendant submitted to one of the consumer reporting
agencies ("CRAs") the name and address infonnation it received with the placement, as part of a
"scrub" process. The purpose of the "scrub" process is to obtain from the CRAs the most current
and accurate contact information on the debtor. When defendant submitted the name Raymond
Drake and the past address it had received from AT&T, the CRA informed defendant that the
most likely contact information for the debtor was the plaintiff who lived in Salem, Oregon.
On March 12, 2015, defendant initiated contact with plaintiff in an effort to collect on the
Account. On March 23, 2015, plaintiff informed defendant by telephone that he received the
March 12 letter but that defendant had contacted the wrong Raymond Drake. Defendant noted
the Account as "disputed" in its internal files. The next day, on March 24, 2015, defendant
received a letter from plaintiff further formally disputing the validity of the Account. On March
26, 2015, defendant responded to the letter, treating it as a verification request pursuant to 15
U.S.C. § 1692g(a)(4), by sending plaintiff a summary of charges on the Account and billing

1

Plaintiff is a resident of Salem, Oregon, and defendant is a Florida Limited Liability
Company licensed to conduct business in the State of Oregon and is a debt collection business.
Page 2 - OPINION AND ORDER

statement by AT&T. On April 6, 2015, plaintiff responded to the letter with a phone call to
defendant, informing them that the Account was not his. Defendant informed plaintiff that it
would not direct any further collection attempts on the Account to him.
Defendant admits to reporting the Account as "disputed" on April 26, 2015, to the CRAs.
On August 2, 2015, defendant requested that the CRAs delete this information regarding the
Account.
Plaintiff filed this lawsuit on October 7, 2015, asserting claims for (1) violation of the
FDCP A; (2) willful violation of the FCRA; (3) negligent violation of the FCRA; (4) defamation;
and (5) fraud.2

Plaintiff alleges that he was damaged in the form of denial of credit and

emotional distress, anger, anxiety, wony, frustration, and other "negative emotions." Plaintiff
also seeks punitive damages. Defendant filed the present Motion for Summary Judgment on
June 23, 2017. After an extended briefing schedule, I heard oral argument on January 16, 2018. 3
STANDARD OF REVIEW

Summary judgment is appropriate if "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). The moving
patiy has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving pmiy shows the absence of a genuine

issue of material fact, the nonmoving patiy must go beyond the pleadings and identify facts
which show a genuine issue for trial.

Id. at 324.

"Summary judgment is inappropriate if

reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict

2

In plaintiffs response to defendant's Motion for Summary Judgment, plaintiff withdrew
his fraud claim.
3
At oral argument, I encouraged the patiies to pursue settlement negotiations. I have
given the parties ample time to seek mediation with a District settlement Judge, but they have not
done so.

Page 3 - OPINION AND ORDER

in the nonmoving party's favor." Diaz v. Eagle Produce Ltd Partnership, 521 F.3d 1201, 1207
(9th Cir. 2008).
DISCUSSION

Plaintiff asserts tln·ee categories of claims: (I) claims under the FDCPA, (2) claims under
the FCRA, and (3) t01i claims including defamation and fraud. Defendant also assetis a bona
fide error defense and moves for summary judgment on plaintiffs claims for damages. I discuss
each issue in turn.
I.

FDCPA Claims

Defendant moves for summary judgment on plaintiffs claims that defendant violated
various provisions of the FDCPA, including 15 U.S.C. § 1692e and § 1692f. Specifically,
defendant claims that it did not violate § 1692e because it did not "use any false, deceptive, or
misleading representation or means in connection with the collection of any debt." 15 U.S.C. §
1692e. Additionally, defendant claims it did not violate§ 1692fbecause it did not use "unfair or
unconscionable means to collect or attempt to collect any debt." 15 U.S.C. § 1692f.
A.

§ 1692e
Section 1692e of the FDCPA generally prohibits the "use [ofJ any false, deceptive, or

misleading representation or means in connection with the collection of any debt." This includes
(as alleged by plaintiff in his complaint): "[t]he false representation of ... the character, amount,
or legal status of any debt," 15 U.S.C. § 1692e(2)(A); "[c]ommunicating ... to any person credit
information which is known or which should be known to be false, including the failure to
communicate that a disputed debt is disputed," §1692e(8); and "[t]he use of any false
representation or deceptive means to collect or attempt to collect any debt or to obtain
infonnation concerning a consumer," §1692e(IO)

Page 4 - OPINION AND ORDER

Plaintiff alleges that defendant violated the above sections by reporting the Account to
the CRAs after plaintiff disputed it. Defendant admits that it made a single report to the CRAs
which it later requested be deleted.

Namely, it reported that the Account was disputed.

Defendant argues, however, that this did not constitute the use of any false, deceptive, or
misleading representation or means in connection with the collection of the debt.
A debt collector's liability under the FDCPA is an issue of law. Gonzales v. Arrow Fin.

Servs., LLC, 660 F.3d 1055, 1061 (9th Cir. 2011).

Generally, conduct that is not taken in

connection with the collection of a debt is not covered under the FDCP A. Narog v. Certegy

CheckServs., Inc., 759 F. Supp. 2d 1189, 1193 (N.D. Cal. 2011).
In the Ninth Circuit, a false or misleading representation is not actionable under the
FDCPA unless it is "material." Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir.
2010) ("False but non-material representations are not likely to mislead the least sophisticated
consumer and therefore are not actionable under [§ 1692e].") The law is "not concerned with
mere technical falsehoods that mislead no one, but instead with genuinely misleading statements
that may frustrate a consumer's ability to intelligently choose his or her response." Id. at 1034.
Here, the reporting of the Account to the CRAs was not in connection to the collection of
the Account. The recipient of the alleged "false, deceptive, or misleading representation" was
not the debtor, but rather, the CRAs. Moreover, defendant did not violate § 1692e because the
information conveyed to the CRAs was not actually "false, deceptive, or misleading." The
infonnation conveyed was simply that the Account was "disputed," which was in fact true.
Finally, the representation did not seemingly frustrate plaintiffs ability to choose his response.
Indeed, plaintiff successfully disputed the debt. For all these reasons, plaintiffs claims pursuant
to § 1692e are appropriate for summary judgment.

Page 5 - OPINION AND ORDER

B.

§ 1692/
Plaintiff also asserts that defendant violated § l 692f of the FDCPA, that is, he asserts that

defendant used unfair or unconscionable means to collect the Account. Congress passed the
FDCPA to "eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692(e);

Donohue, 592 F.3d at 1032 ("FDCPA's purpose is to protect unsophisticated consumers"). To
that end, the statute prohibits debt collectors from trying to collect any amount that is not
"expressly authorized by the agreement creating the debt or permitted by law." 15 U.S.C. §
1692f(l).
Again, the action of reporting to the CRAs was not done in connection with the collection
of the debt under the FDCPA. Instead the Account was accurately reported as disputed to the
CRAs. This does constitute unfair or unconscionable means to collect the Account. Thus, I find
that plaintiffs claim that defendant has liability under§ 1692fis without merit. 4
II.

FCRA Claims

Plaintiff also claims that defendant violated§ 168lb(f) and§ 168lq of the FCRA. He
alleges that defendant misused his social security number to obtain an unauthorized consumer
report from the CRA' s. Defendant moves for summary judgment for these claims, arguing that it
never had plaintiffs social security, nor did the information it received from the CRAs constitute
a consumer report.
A.

168lb(f)
§ 168lb(f) of the FCRA provides that "[a] person shall not use or obtain a consumer

repmi for any purpose unless ... the consumer repmi is obtained for a purpose for which the
consumer report is authorized to be furnished
4

[under Section 168lb]."

15 U.S.C.

Given that I have found that defendant's actions did not violate the FDCPA, there is no
need for me to discuss defendant's bona fide error defense.
Page 6 - OPINION AND ORDER

§ 168lb(f). Section 168lb(a)(3)(A) allows a CRA to furnish a consumer repmi "[t]o a person
which it has reason to believe ... intends to use the infonnation in connection with ... [the]
review or collection of an account of the consumer."

A consumer rep01i is "any . . .

communication ... bearing on a consumer's credit worthiness, credit standing, credit capacity,
character, general reputation, personal characteristics, or mode of living .

" 15 U.S.C. §

1681a(d)(l).
Here, plaintiff complains that his consumer repmi was obtained by defendant for an
unauthorized purpose. While plaintiff alleged in his complaint that defendant had impermissibly
used his social security number to obtain a consumer report, he admitted in briefing that there is
no evidence to support that contention. Rather in his response to this motion he argues, for the
first time, that inf01mation received by defendant constituted an unauthorized consumer rep01i.
However, it is important to note that what he refers to as a credit report was actually basic
contact info1mation furnished by CRA's to defendant. Plaintiff avers that this info1mation is
subsumed within his "mode of living" under § 1681 a(d)(l ).
Plaintiff's claim fails for several reasons. As noted above, defendant stipulated in his
response that there is no evidence of a wrongful use of his social security number. His argument
that the basic contact info1mation obtained by defendant from the CRAs constitutes a consumer
rep01t is raised for the first time in briefing.

Advancing new claims in response to a motion for

summary judgment is disfavored. See Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989,
992 (9th Cir. 2006). ("[S]ummary judgment is not a procedural second chance to flesh out
inadequate pleadings.")
Neve1iheless, even addressing this new argument, I would still hold that defendant's
actions did not violate§ 168lb(f). First, I note that the basic contact information obtained from

Page 7 - OPINION AND ORDER

the CRAs did not constitute a credit repmi. See Harrington v. Choicepoint Inc., 2006 WL
8198396 (C.D. Cal. Oct. 11, 2006) (holding that repmis containing names addresses, dates of
bhih and Social Security numbers did not bear on any factors listed in§ 168la(d)(l)). 5
Numerous coutis have held that more detailed info1mation than is present here, did not constitute
a consumer repo1i. See Individual Reference Servs. Group v. FTC, 145 F.Supp.2d 6, 17
(D.D.C.2001) (held that name, address, Social Security number and phone number did not bear
on the§ 1681a(d)(l) factors); Ali v. Vikar lvfgmt. Ltd., 994 F.Supp. 492, 497 (S.D.N.Y 1998)
("[N]o restriction is put on the use of information that is not a 'consumer report' as defined by 15
U.S.C. § 1681a(d)(l). Address information on a consumer, for example, is not a consumer repmi
because it is not infmmation that bears on any of the characteristics described in 15 U.S.C. §
1681a(d)(l)."); Dotzler v. Perot, 914 F.Supp. 328, 330 (E.D.Mo.1996) (held that name, current
and former addresses and Social Security number did not bear on the § 1681 a(d)(l)
factors), affd, 124 F.3d 207 (8th Cir.1997). 6
Finally, I hold that defendant obtained the contact information for a permissible
purpose under the statute. Again, CRAs are permitted to "furnish a consumer report ... [t]o a
person which it has reason to believe ... intends to use the information in connection with ...
[the]review or collection of an account of the consumer.'' 15 U.S.C. § 1681 b(a)(3)(A). It is not

5

"[I]fthe seven-factor statutory test is to be applied at such a level of generality or
attenuation that even very basic, publicly available information of the type at issue here qualifies
a communication as a consumer repmi, then vhiually any info1mation about a person will be
deemed to satisfy the content prong of the consumer report definition.'' Id. at 8.
6
The court in Dotzler noted that the Federal Trade Commission, in its Commentary had
specifically addressed this issue and opined that a "report limited solely to the consumer's name
and address alone, with no connotations as to credit wmihiness or other characteristics, does not
constitute a 'consumer report,' if it does not bear on any of the seven factors." Dotzler, 914 F.
Supp. at 331 (quoting FTC Commentary to the FCRA, 16 C.F.R. § 600 App. at 379-80 (1995)).

Page 8 - OPINION AND ORDER

disputed that defendant was obtaining the infonnation in connection with the collection of a debt.
It was trying to locate the debtor who owned the Account. For all of these reasons, defendant's

Motion for Sununary Judgment on plaintiffs FCRA claim pursuant to§ 168lb(f) is granted.

B.

168Jq

The FCRA provides for civil liability and criminal penalties for those who do not comply
with the Act. Section 1681 q provides a criminal penalty for "knowingly and willfully
obtain[ing] information on a consumer from a consumer repo1ting agency under false
pretenses." 15 U.S.C. § 1681q. The Ninth Circuit has established that "[n]oncompliance with§
1681q thereby forms a basis of civil liability under§ 168ln." Hansen v. Morgan, 582 F.2d 1214,
1221 (9th Cir. 1978).
"The standard for determining when a consumer report has been obtained
under false pretenses will usually be defined in relation to the permissible purposes of consumer
repo1ts which are enumerated in 15 U.S.C. § 1681b." Id. at 1219. Therefore, if a user requests
information for a purpose not permitted by § 1681 b, while representing to the reporting agency
that the report will be used for a pe1missible purpose, the user may be subject to civil liability for
obtaining information under false pretenses. Id.
Here, there is no evidence that defendant requested info1mation for a purpose other than
to collect on the delinquent Account which, as noted above, is authorized by 15 U.S.C. §
168lb(a)(3)(A). Because defendant obtained the credit report for the purpose of collecting on an
account and did not obtain the credit report under false pretenses, defendant did not violate §
1681q. Defendant's motion for sununary judgment is therefore granted as to that claim.

Page 9 - OPINION AND ORDER

III.

Tort Claims7
In his defamation claim, plaintiff alleges that "defendant intended to publish information

it knew was false when it rep01ied to consumer reporting agencies that [p ]laintiff owed [t]he
[d]ebt to [d]efendant," and that the publication was malicious in nature. Pl. Complaint ~ 35, 36.
Defendant argues that the FCRA preempts state common law claims that are based on allegations
of false repo1iing to the CRAs, including the state common law claim of defamation.
Alternatively, defendant asse1is that even if the defamation claim is not preempted, the alleged
defamatory statement was not false.
15 U.S.C. § 168lh(e) states that "No consumer may bring any action or proceeding in the
nature of defamation ... with respect to the reporting of information against ... any person who
furnishes information to a consumer reporting agency . . . except as to false inf01mation
furnished with malice or willful intent to injure such consumer."

§ 1681h(e). This statute

seemingly allows state law actions for defamation as long as the plaintiff can show falsity and
malice. Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1166 (9th Cir. 2009).
15 U.S.C. § 1681t(b)(l)(F), however, addresses more generally the FCRA's relation to
state laws. It provides that no requirement or prohibition may be imposed with respect to any
subject matter regulated under specific sections relating to the responsibilities of persons who
furnish information to consumer reporting agencies. § 168 lt(b)( 1)(F). This statute can be read
to preempt all state law claims based on a creditor's actions in furnishing information to credit
reporting agencies. Wood v. Nationstar lviortg., LLC, 2017 WL 3484664, at 7 (D. Or. 2017).
"The analysis for courts has become this: 1) are state law claims preempted by§ 1681t(b)(l)(F);

7

As noted above, plaintiff has withdrawn his fraud claim, leaving only his claim for
defamation to be considered for summary judgment.
Page 10 - OPINION AND ORDER

and, if not, 2) does the claim fall within the exception of § 1681h(e) by alleging that the
information was false and furnished with malice?" Id.
These two statutes within the FCRA, § 1681h(e) and § 168lt(b)(l)(F), and their
interaction, have been "the basis of much judicial consternation." Id. There are essentially two
approaches that comis have taken in dealing with these seemingly conflicting statutes. The first
approach is the "total preemption" approach and is likely the majority view. See, e.g., Cope v.
MBNA Am. Bank, NA, 2006 WL 655742 at 9 (D.Or. 2006) (Judge Brown adopting total

preemption approach). Under this approach, the second, later passed statute, § 1681t(b)(l)(F),
effectively repeals the first, § 168 lh(e), resulting in preemption of state statutory and common
law actions.
More recently, other courts in this district have adopted what has been termed the
"statutory approach." See Weseman v. Wells Fargo Home lvfortg., Inc, 2008 WL 542961, at *3
(D.Or. 2008) (Judge Mosman adopting the statutory approach); Blair v. Bank of America,
NA. 2012, WL 860411 at 6 (D.Or. 2012) (Judge Simon adopting Judge Mosman's reasoning

in Weseman); Wood, 2017 WL 3484664 at 7 (Judge McShane adopting the statutory approach.)
Under the statutory approach,§ 168lt(b)(l)(F) preempts only state law claims against credit
information furnishers brought under state statutes while § 168 lh(e) preempts state common law
claims. Wood, 2017 WL 3484664 at 7.
I also adopt the statutory approach as the more legally sound course. While the total
preemption approach gives full fidelity to the language of§ 1681 t(b)(1 )(F), it ignores important
legal principles and context by rendering § 1681h(e) superfluous. Id.

Importantly, the total

preemption approach "violates a canon of statutory construction by allowing a general statute to
trump a specific statute." Weseman 2008 WL 542961, at *4. As noted in Wood, if Congress had

Page 11 - OPINION AND ORDER

intended to repeal § 1681 h(e), they could have done so directly. 2017 WL 3484664 at 7. "A
cardinal rule of statutory construction is that a repeal by implication is disfavored." Donaldson v.
United States, 653 F.2d 414, 418 (9th Cir. 1981); 1i!fanno v. Am. Gen. Fin. Co., 439 F. Supp. 2d

418, 424 (E.D. Pa. 2006) (adopting the statutory approach).
Thus, I tum to the question of whether plaintiffs claim falls within the exception of §
1681h(e) by alleging that the information provided by defendant to CRAs was false and
furnished with malice. See Gorman, 584 F.3d at 1166.
Regarding falsity, I find that the representation made by defendant that the Account in
question was "disputed" was not false. Regarding malice, I find that the infomiation was not
furnished with malice or willful intent to injure plaintiff. The Ninth Circuit has adopted the
standard found in New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 (1964), for malice.
Gorman, 584 F.3d at 1168. This standard requires the publication be made "with knowledge that

it was false or with reckless disregard of whether it was false or not." New York Times, 376 U.S.
at 280. After an examining the record as whole, there is no support for plaintiffs allegations of
malice under this standard. The only applicable facts are that on April 26, 2015, defendant
reported the Account as "disputed" to the CRAs. The information was not false, and there is no
evidence that it was furnished with malice or willful intent to injure the plaintiff. Absent
allegations of further willful behavior or knowledge by defendant, plaintiffs common law
defamation claim is preempted by§ 1681h(e).
Finally, even ifthe state common law tort claim was not preempted, plaintiffs claim for
defamation would still be subject to summary judgment. In Oregon, the elements of a claim for
defamation are: (1) the making of a defamatory statement; (2) publication of the defamatory
material; and (3) a resulting special harm, unless the statement is defamatory per se and therefore

Page 12 - OPINION AND ORDER

gives rise to presumptive special harm. Nat'! Union Fire Ins. Co. of Pittsburgh Pennsylvania v.

Starplex Corp., 188 P.3d 332, 347 (Or. App. 2008). Additionally, a defamatory statement must
be false. Reesman v. Highfill, 965 P.2d 1030, 1034 (1998) ("[t]o be actionable, a communication
must be both false and defamatory").
Here, as stated previously, the information defendant conveyed to the CRAs was simply
that the Account was disputed, which was in fact true. Defendant's report to the CRAs that an
Account held by plaintiff was in dispute was not false and therefore not a defamatory statement.
Thus, plaintiff falls short of proving the first element of defamation.
CONCLUSION

For the reasons set forth above, defendant's Motion for Summary Judgment (doc. 27) is
GRANTED. 8 Accordingly, this case is dismissed.
IT IS SO ORDERED.

of1t-

Dated this _ _ day of March 2018.
/ I

Ann Aiken
United States District Judge

8

Given the nature of this ruling, there is no need for me to consider defendant's summary
judgment arguments regarding damages.
Page 13 - OPINION AND ORDER