Mazziotti v. Fair Dinkum et al

Filing 18

MEMORANDUM DECISION and Ordergranting 7 Motion to Dismiss for Failure to State a Claim, which has been converted to a Motion for Summary Judgment, isgranted. The Clerk of Court is requested to enter judgment forDefendants. Signed by Judge David Sam on 3/18/13. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
SARAH MAZZIOTTI,

)

Plaintiff,
vs.

Case No. 2:12CV01021 DS

)
)
MEMORANDUM DECISION
AND ORDER

FAIR DINKUM, LLC ET AL.,
Defendants.

)
)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
I.

INTRODUCTION

Plaintiff complains that Defendants violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. In
response to the Complaint, Defendants have filed a Motion to
Dismiss for Failure to State a Claim (Doc. #7).

Because matters

outside the pleadings were presented and not excluded, pursuant to
Fed. R. Civ. P. 12(d) the Court converted the Motion to one for
summary judgment under Fed. R. Civ. P 56.

Notice of the conversion

was given to the parties on February 7, 2013.
The facts underlying this matter involve efforts by Defendants
Cannon Law Associates (“Cannon Law”) and Fair Dinkum, LLC (“Fair
Dinkum”) to collect a debt allegedly owed by Plaintiff.

The

Complaint contains one claim for relief for the alleged violation
of the FDCPA.

Specifically, Plaintiff asserts that Defendants

violated the FDCPA when they (1) failed to provide her with the
notice required by 15 U.S.C § 1692g(a), (2) continued to contact

her without first providing validation of the debt after she
disputed the debt in writing, and (3) used “false representations
and deceptive practices in connection with collection of an alleged
debt from Plaintiff, including Defendant Cannon Law representing in
its validation response on behalf of Fair Dinkum that Plaintiff’s
time for validation had expired.”

Compl. ¶12.

In their Motion, Defendants state the following facts.

On

August 3, 2011, Cannon Law mailed a demand letter (the “Letter”) to
Plaintiff at her address in Riverton, Utah.1

Plaintiff failed to

respond to the Letter within the required 30 days.

On March 23,

2012, Fair Dinkum initiated a civil action against Plaintiff in
state

court.

validation.

On

June

27,

2012,

Plaintiff

requested

a

debt

On November 27, 2012, Plaintiff served Cannon Law in

this matter.
II.

SUMMARY JUDGEMENT STANDARD

Under Fed. R. Civ. P. 56, summary judgment is proper only when
the pleadings, affidavits, depositions or admissions establish
there is no genuine issue regarding any material fact and the
moving party is entitled to judgment as a matter of law.

The

burden of establishing the nonexistence of a genuine issue of

1

A copy of the Letter is attached to the Motion as an

exhibit.
2

material fact is on the moving party.2
Catrett, 477 U.S. 317 (1986).
components:

E.g., Celotex Corp. v.

This burden has two distinct

an initial burden of production on the moving party,

which burden when satisfied shifts to the nonmoving party, and an
ultimate burden of persuasion, which always remains on the moving
party.

See 10A C. Wright, A. Miller & M. Kane, Federal Practice

and Procedure § 2727 (2d ed. 1983).
The central inquiry is "whether the evidence presents a
sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law."
Id.

If the nonmoving party cannot muster sufficient evidence to

make out a triable issue of fact on his claim, a trial would be
useless and the moving party is entitled to summary judgment as a
matter of law.

Celotex, 477 U.S. 242.
III.

DISCUSSION

As noted, Plaintiff alleges violation of the FDCPA in three
specific ways.
A. Failure to provide Plaintiff with the notices required
by 15 U.S.C § 1692g(a).
Plaintiff complains that Defendants failed to give her notice
as required by 15 U.S.C. § 1692g.
must

either

provide

in

the

Compl. at ¶10.

initial

2

A debt collector

communication,

or

in

a

Whether a fact is material is determined by looking to
relevant substantive law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242.
3

communication within five days of the initial communication,

a

written

§

notice

containing

certain

information.

15

U.S.C.

1692g(a).
Defendants state that on August 3, 2011, Cannon Law on behalf
of Fair Dinkum sent Plaintiff such a communication.

Defendants

have submitted to the Court what they represent to be a copy of the
Letter.

On its face that Letter

supports Defendants’ position

that Plaintiff was given adequate notice under 15 U.S.C. §1692g(a).
In response, Plaintiff conclusorily asserts only that because
the letter is “not authenticated” it is not admissible.3
The Court disagrees with Plaintiff’s position that the Letter
is not admissible as evidence for purposes of the present motion.

3

After so asserting, Plaintiff clarifies that “[i]n any case,
Plaintiff does not accuse Cannon Law Associates of failing to send
a letter pursuant to 15 USC 1692g(a), it has instead accused Fair
Dinkum of failing to send such a letter, so the evidence of the
alleged 2011 letter is completely irrelevant.” Mem. Opp’n at 2.
Plaintiff does not offer, and the Court is not aware of any
legal basis for her position that the creditor, rather that the
creditor’s attorney, is required to provide notice pursuant to
section 1692g(a). That section requires that a “debt collector”
shall send the consumer a written notice. Plaintiff alleges that
“Defendants are each a ‘debt collector’ as defined by the FDCPA, 15
U.S.C. § 1692a(6).” Compl. ¶6. “Debt Collector” is defined to
mean “any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.”
15 U.S.C. § 1692a(6).
Plaintiff alleges that Cannon Law is “engaged in the business of
collecting debts by use of the mails and telephone.
Defendant
Cannon regularly attempts to collect debts alleged due another.”
Compl. ¶5. Thus, it is undisputed that Defendant Cannon Law is a
debt collector for purposes of the present action.
4

“While

the

party

opposing

summary

judgment

need

not

produce

evidence in a form that would be admissible at trial, the content
or substance of the evidence must be admissible.” Law Co., Inc. v.
Mohawk Const. and Supply Co., Inc., 577 F.3d 1164, 1170 (10th Cir.
2009)(citation and internal quotation marks omitted).

Subject to

a few exceptions, relevant evidence is admissible evidence.
R. Evid. 402.

Fed.

“Evidence is relevant if: (a)it has any tendency to

make a fact more or less probable that it would be without the
evidence; and (b)the fact is of consequence in determining the
action.”

Id. at 401. Clearly the letter is relevant to whether

Plaintiff received adequate notice under § 1692g.
Contrary to Plaintiff’s position, an affidavit is not required
to authenticate every document submitted for consideration at
summary

judgment.

Law

Co.,Inc.,

577

F.3d

at

1170.4

“[T]he

requirement of authenticating or identifying an item of evidence
[is satisfied if] the proponent ... produce[s] evidence sufficient
to support a finding that the item is what the proponent claims it
is.”

Fed. R. Evid. 901(a).

4

The Rule can be satisfied by evidence

See id.
By the text of Rule 56, affidavits are merely
one form of submission that can demonstrate a
genuine issue of material fact. Fed. R. Civ.
P. 56(c)(“The judgment sought should be
rendered if the pleadings, the discovery and
disclosure
materials
on
file,
and
any
affidavits show that there is no genuine issue
as to any material fact and that the movant is
entitled to judgment at a matter of law.”
(emphasis added [in original]).
5

about “[t]he appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken together with
all the circumstances.” id. at 901(b)(4); see also Law Co., 577
F.3d at 1170-71 (exhibits might be sufficiently authenticated
taking into consideration the characteristics set forth in Rule
901(b)(4)).
Based on the circumstances presented and for purposes of the
present motion, the Court finds that the appearance, content and
substance of the Letter are indicative of its origin and provide
sufficient evidence to support a finding that the Letter is what
Defendants claim it is.

The Letter is on Cannon Law letterhead and

addressed to Plaintiff.
successor

in

interest

It
to

references

Chase

Fair Dinkum as the

Manhattan

Bank

USA

NA,

and

identifies the last five digits of a specific Account Number
identified with Plaintiff.

The Letter references specifics of the

alleged debt, including the principal balance due, plus a specific
amount of accrued interest at a particular rate from a particular
date.

These

are

facts

or

matters

not

of

common

knowledge.

Defendants have no apparent motive to send the Letter absent a
legitimate business reason. Moreover, Plaintiff has not denied that
she received the Letter, or that what she received is in a form
different

from

affirmatively

what

states

is
that

represented.

Indeed,

she

accuse

“does

not

Plaintiff
Cannon

Law

Associates of failing to send such a letter pursuant to 15 USC

6

1692g(a), it [she] has instead accused Fair Dinkum of failing to
send such a letter ....”

Mem. Opp’n at 2.

Plaintiff has not put in dispute any of the facts relied upon
by Defendants in support of their converted motion for summary
judgment.

As noted, once the moving party has met its burden of

production, the burden shifts to the nonmoving party to establish
that there is a genuine issue of material fact.

This Plaintiff has

failed to do.
The Court rejects Plaintiff’s alternative position that “even
if it [the Letter] were admissible the Court is aware that under
our Federal rules each party is entitled to an opportunity to
examine the evidence and conduct discovery before the facts can be
decided in either side’s favor, and facts are not decided by

7

unsupported factual allegations in the pleading state, as much as
that might please Defendants here.”5
B.

Mem. Opp’n at 2.

Failure to Provide Validation of the Debt.

Plaintiff next complains that after she disputed the debt in
writing to Fair Dinkum, Cannon Law “sent a validation response
instead of Fair Dinkum, which is not legally sufficient because it
does not validate Fair Dinkum’s right to collect. Thereafter, Fair
Dinkum, LLC continued with collection in violation of 15 USC
1692g(b).”

Comp. at ¶11.

The undisputed facts reflect that Plaintiff did not request a
debt validation until June 27, 2012, well beyond 30 days that began
to run when notice under § 1692g was provided by Cannon Law in the

5

Plaintiff’s apparent attempt to invoke Fed. R. Civ. P. 56(f)
fails.
With respect to rule 56(f) motions, the Tenth Circuit
instructs as follows.
“Unless dilatory or lacking in merit, the motion should
be liberally treated.” ... A prerequisite to granting
relief, however, is an affidavit furnished by the
nonmovant.... Although the affidavit need not contain
evidentiary facts, it must explain why facts precluding
summary judgment cannot be presented. ... This includes
identifying the probable facts not available and what
steps have been taken to obtain these facts. ... In this
circuit, the nonmovant also must explain “how additional
time will enable him to rebut movant’s allegations of no
genuine issue of fact.”
Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th
Cir. 1992) (citations omitted)(emphasis added). Accord,
Garcia v. U. S. Airforce, 533 F.3d 1170,1179 (10th Cir. 2008);
Hackworth v. Progressive Casualty Ins. Co., 468 F.3d 722, 731 (10th
Cir. 2006), cert. denied, 550 U.S. 969 (2007). Plaintiff has not
complied with any of foregoing prerequisites.
8

Letter and received by Plaintiff.6

The validation provision of §

1692g(b) applies upon the timely receipt by the debt collector of
a written notice from the consumer.
Defendants

note,

“[t]here

is

no

See 15 U.S.C. § 1692g(b).
language

in

the

FDCPA

As

which

requires an additional validation of the debt if no request is
received within the thirty day validation period.” Mem. Supp at 4.
Plaintiff had not provided any authority to the contrary, and the
Court is unaware of any.
C. False representations and Deceptive Practices
Regarding Plaintiff’s Validation Request.
Finally, Plaintiff complains that Defendants used
false representations and deceptive practices in
connection with collection on an alleged debt from
Plaintiff, including Defendant Cannon Law representing in
its validation response on behalf of Fair Dinkum that
Plaintiff’s time for validation had expired. Plaintiff’s
time for validation had not expired as of the time of
that writing because Fair Dinkum, LLC, had never sent a
letter
to
Plaintiff
after
Plaintiff’s
initial
communication with them and therefore Plaintiff’s 30-day
dispute period never expired, as it only begins running
when Plaintiff receives Fair Dinkum’s letter complying
with 15 USC 1692g(a)....
Compl. ¶12.
As noted, because Plaintiff’s validation request was untimely,
the valuation provision of § 1692g(b) is inapplicable.

6

And as

See 15 U.S.C. § 1692g(b) (“If the consumer notifies the debt
collector in writing within the thirty-day period that the debt ...
is disputed ... the debt collector shall cease collection of the
debt ... until the debt collector obtains verification of the
debt... and a copy ... is mailed to the consumer by the debt
collector.”).
9

Defendants note, there is no statutory language or case authority
specifically requiring the creditor to directly provide validation,
rather than some other authorized party.
III.

CONCLUSION

For the reasons stated, Defendants Motion to Dismiss (Doc.
#7), which has been converted to a Motion for Summary Judgment, is
granted.

The Clerk of Court is requested to enter judgment for

Defendants.
IT IS SO ORDERED.
DATED this 18th day of March, 2013.
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

10