Wade v. Bonneville Billing and Collections

Filing 60

MEMORANDUM DECISION AND ORDER denying 39 Motion for Partial Summary Judgment; granting 43 Motion for Summary Judgment. Signed by Judge Dee Benson on 7/15/14. (jlw)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

CASSIE WADE
Plaintiff,

MEMORANDUM DECISION AND
ORDER

vs.

BONNEVILLE BILLING AND
COLLECTIONS, INC.,

Case No. 2:13-CV-00203
Judge Dee Benson

Defendant.

This matter is before the court on defendant’s motion for summary judgment and
plantiff’s motion for partial summary judgment. (Dkt. Nos. 43 & 39.) Plaintiff Cassie Wade is
represented by JoshuaTrigsted and defendant Bonneville Billing and Collections, Inc. is
represented by Ronald F. Price and Jeffrey I. Hasson. Having considered the parties’ briefs and
the relevant law, the court enters the following Memorandum Decision and Order.
BACKGROUND
In August of 2012, Bonneville obtained a judgment against Wade in Utah’s Third District
Court for $1,194.69, based on five accounts assigned to Bonneville. Bonneville was also
assigned an account from Questar Gas but acquired the account after the judgment. Wade claims
that Bonneville violated Section 1692 (e)(10) of the Fair Debt Collection Practices Act (the

“FDCPA”) by making a number of false and deceptive statements during its communications
with Wade regarding her payment obligations.1
Specifically, during the fall of 2012, Wade called Bonneville with questions about her
payment obligations under the judgment. Bonneville has produced the recordings of at least six
calls Wade made to Bonneville and attached them as exhibits to its original motion for summary
judgment. (Dkt. No. 23-1, Exs. A-G.) The dates of the calls were September 6, December 1,
and four separate calls on December 31, 2012.
Wade claims that during these conversations, and others, Bonneville (a) promised to, but
did not, send her a statement identifying multiple accounts that Bonneville was seeking to collect
from her, (b) subsequently agreed to, but failed to honor, a payment plan consisting of payments
in the amount of $50 twice a month, and (c) falsely stated on December 31, 2012, that she had
not made any $50 payments, or any payments in December 2012. (Am. Compl. ¶¶ 9-13.) These
claims are analyzed below.
DISCUSSION
I.

Summary Judgment Standard
Summary judgment is proper 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). “[T]he plain language
of Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon
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Defendant asserts that the FDCPA does not apply because a judgment is not a “debt” for
purposes of the statute. However, defendants disregard the plain language of the statute which
states that a debt is “any obligation or alleged obligation of a consumer to pay money arising out
of a transaction ..., whether or not such obligation has been reduced to judgment.” 15 U.S.C §
1692(a) (emphasis added). Defendant also relies on a case from the District of Oregon for this
proposition, but takes that court’s discussion about debts “reduced to judgment” out of context.
See Denman v. Mercantile Agency, 2012 WL 1698173 (D. Or. May 11, 2013) (noting that a
judgment is not the same as a debt, but only for purposes of explaining that, pursuant to 15
U.S.C. 1692(g)(a), a debtor may only dispute the validity of the underlying debt not the
judgment itself).
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motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the evidence is merely colorable,
or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). Moreover, “[t]he mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
II.

Paragraph Nine of the Amended Complaint
In Paragraph nine of her amended complaint, Wade claims that, in an unrecorded
call made shortly after the recorded conversation on September 6, 2012, a Bonneville
employee agreed to send her a list of her debts but then never sent the list. She claims
that this violated Section 1692 (e)(10) of the FDCPA, which states:
A debt collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt. Without limiting the general
application of the foregoing, the following conduct is a violation of this section:
...
(10) The use of any false representation or deceptive means to collect or attempt
to collect any debt or to obtain information concerning a consumer.
15 U.S.C.A. § 1692(e) (10)(emphasis added).
For a statement to violate this section of the Act, it must be material. In the Ninth Circuit
case Donohue v. Quick Collect, Inc., the Court reasoned that assessing materiality under
§1692(e) requires an “objective analysis that considers whether ‘the least sophisticated debtor
would likely be misled by a communication.’” 592 F.3d 1027, 1027 (9th Cir. 2010) (emphasis
added) (citation omitted). It held that “false but non-material representations are not likely to
mislead the least sophisticated consumer and therefore are not actionable under 1692e.” Id. The
Court went on to note that the purpose of the FDCPA, “to provide information that helps
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consumers to choose intelligently,” would not be furthered by creating liability as to immaterial
information because “by definition immaterial information neither contributes to that objective
(if the statement is correct) nor undermines it (if the statement is incorrect).” Id. at 1033.
The court concludes that the alleged promise to provide a list of debts underlying her
judgment is immaterial because it is undisputed that Bonneville discussed each of the debts
underlying the judgment during the September 6, 2012, call. Thus, failing to provide an
additional list would not “mislead the least sophisticated consumer” in “choos[ing] intelligently”
how to deal with the debt.
III.

Paragraph Ten of the Amended Complaint
Similarly, in paragraph ten of her amended complaint, Wade claims that Bonneville
violated the same section of the FDCPA when it did not uphold an alleged agreement that she
could make two $50 payments each month at whatever time during the month that was
convenient for her. Conversely, Bonneville claims the arrangement was to make the $50
payment every two weeks. The only evidence supporting Wade’s assertion is from her own
declaration where she claims she spoke with an attorney for Bonneville in November who agreed
to such a plan. (Dkt. No. 44.)
At this phase in litigation, discovery has ended and Wade has produced no evidence
beyond her own declaration. Importantly, her declaration is clearly contradicted by her
statements made during the December 1, 2012 phone call where she admits the payments are due
every two weeks. Accordingly, the court finds that no reasonable jury could decide this disputed
fact in favor of Wade. Furthermore, even if the court decided that there was a genuine dispute as
to this issue, it would find that the statement was immaterial because Wade’s statements
demonstrate that, as of December 1, 2012 at the latest, any supposed agreement was clearly

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superseded by a mutual understanding that the payments were to be made every two weeks.
Thus, the prior representation would not “mislead the least sophisticated consumer” in
“choos[ing] intelligently” how to deal with the debt and the statement would therefore be
immaterial.
IV.

Paragraph Eleven of the Amended Complaint
Next, Wade claims that Bonneville violated the act by stating, in a call on December 31,
2012, that her last payment was “last month,” when in fact plaintiff had made a payment on
December 1, 2012. First, the employee who made the statements corrected herself and stated
that a $50 payment had been made on December 1, 2012. Second, whether the $50 payment was
made in November as opposed to having been made on December 1, 2012 would not affect her
actions in fulfilling her obligation to make a payment every two weeks. Accordingly, the
statement was immaterial because it is undisputed that Wade agreed during the December 1,
2012 call that a payment would be due by mid-December at the latest, and not on December 31,
2012, when she called again to inquire about her obligations.

V.

Paragraph Twelve of the Amended Complaint
In paragraph twelve of her amended complaint, Wade claims Bonneville falsely
represented that there had never been an agreement regarding two monthly payments of $50.
However, upon analyzing the entire conversation in context, it is clear that the Bonneville
employee was not denying the existence of a payment schedule but simply that Wade had ever
followed through with such a plan. The employee was apparently trying to ascertain why Wade
had not made the payment that was due in mid-December. Given the context of the
conversation, the statement was immaterial because it would not “mislead the least sophisticated
consumer” in “choos[ing] intelligently” how to deal with the debt.

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VI.

Paragraph Thirteen of the Amended Complaint
In paragraph thirteen of her complaint, Wade claims that Bonneville falsely told her that
she had not made any payments in December 2012. While the Bonneville employee did make
this statement, the statement must be analyzed in context of the entire conversation. Here, the
employee who made the statement corrected herself moments later by stating that a payment had
been made on December 1, 2012. Upon even a cursory analysis of this conversation, it is clear
that the employee was referring to the fact that Wade had never faithfully made her regularly
recurring two-week payments. Accordingly, because the statement was corrected, and because
the employee’s intended meaning becomes clear when viewed in context of the entire
conversation, the statement was not material and therefore did not violate the FDCPA. As with
the claim in paragraph twelve, Wade seems to be selectively emphasizing certain statements
while entirely disregarding others.
CONCLUSION
For the foregoing reasons, the court concludes that Bonneville did not violate Section
1692(e) (10) of the FDCPA. Accordingly, plaintiff’s motion is DENIED and defendant’s motion
is GRANTED.
DATED this 15th day of July, 2014.

___________________________________
Dee Benson
United States District Judge

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