Morgan v. AR Resources, Inc.

Filing 73

MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 09/29/2021. (Opinion mailed to Pro Se Party via US Mail)(dg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
CHRISTOPHER MORGAN,
CASE NO. 3:19-cv-00023
Plaintiff,
v.

MEMORANDUM OPINION

AR RESOURCES, INC.,
JUDGE NORMAN K. MOON

Defendant.

The plaintiff, proceeding pro se, has sued a debt collector claiming that it employed
unfair or unconscionable means to collect a debt and thereby violated the Fair Debt Collection
Practices Act. The plaintiff asserts that the defendant used “unfair and unconscionable” means
when it reported to a credit reporting agency false amounts that he owed. The parties have filed
cross motions for summary judgment. Because the record discloses no genuine of material fact
and establishes that the defendant is entitled to judgment as a matter of law, the Court will award
summary judgment to the defendant.
Procedural Background
In March 2019, Plaintiff Christopher Morgan filed a Warrant in Debt 1 against Defendant
AR Resources in the General District Court, Orange County, Virginia. Dkt. 1-2 at 2–3. Plaintiff
claimed that AR Resources owed him $1,000.00, suing under the Fair Debt Collection Practices
Act (“FDCPA”) “§ 808(1),” codified at 15 U.S.C. § 1692f(1), and the Fair Credit Reporting Act
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A Warrant in Debt is a common form used to start civil legal proceedings in the General
District Courts of Virginia, which are “courts of limited jurisdiction, where the plaintiffs typically
assert claims to relatively small sums, such as credit card debts.” Bohannon v. LVNV Funding,
LLC, No. 3:14-cv-354, 2015 WL 893362, at *1 n.1 (E.D. Va. Mar. 2, 2015).
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(“FCRA”) “§ 623(a)(1)(A),” which is codified at 15 U.S.C. § 1681s-2(a)(1)(A). Dkt. 1-2 at 3.
AR Resources removed the case to this Court on the grounds that it presented a federal question.
Dkt. 1 at 2.
The procedural history of this case is set forth more fully in this Court’s Memorandum
Opinion, in which the Court granted in part and denied in part AR Resources’ motion to dismiss.
Dkt. 34. Therein, the Court dismissed Plaintiff’s claim under the FCRA, holding that there is no
private right of action for violations of 15 U.S.C. § 1681s-2(a), as asserted. Id. at 7. However, the
Court allowed Plaintiff’s claim under the FDCPA to proceed, stating, among other things, that
Plaintiff plausibly alleged in the complaint that AR Resources was a debt collector attempting to
collect a debt, notwithstanding AR Resources’ arguments to the contrary. Id. at 6–7. The parties
subsequently filed cross motions for summary judgment, which have been fully briefed. See
Dkts. 54, 55, 56, 57, 67, 68. The Court cancelled the scheduled jury trial pending resolution of
the parties’ motions for summary judgment.
Standard of Review
Summary judgment is appropriate 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). “The mere existence of some alleged factual dispute between the parties, however, will
not defeat an otherwise properly supported motion for summary judgment”—only the existence
of a “genuine issue of material fact” will preclude summary judgment, meaning that it “might
affect the outcome of the suit under the governing law ….” Hooven-Lewis v. Caldera, 249 F.3d
259, 265 (4th Cir. 2001) (emphasis omitted).
“When cross-motions for summary judgment are before a court, the court examines each
motion separately, employing the familiar standard under Rule 56 of the Federal Rules of Civil
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Procedure.” Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d 351, 354 (4th Cir. 2011).
Thus, “[w]ith respect to each side’s motion,” the Court must “view the facts and all justifiable
inferences arising therefrom in the light most favorable to the nonmoving party.” Kolbe v.
Hogan, 849 F.3d 114, 130 (4th Cir. 2017) (internal quotation marks and citations omitted). A pro
se litigant’s filings must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). But
where no genuine issue of material fact exists, the trial judge has an “affirmative obligation … to
prevent factually unsupported claims and defense from proceeding to trial.” Bouchat v. Balt.
Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (citation omitted).
Reasoning
The Court first addresses AR Resources’ motion for summary judgment, reciting the
facts in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor.
The only remaining claim is whether AR Resources violated 15 U.S.C. § 1692f(1). Dkt. 11-1
at 1; Dkt. 56 at 1–2; Dkt. 67 at 1. The Court concludes that AR Resources is entitled to summary
judgment for several, independent reasons.
Section 1692f states that “[a] debt collector may not use unfair or unconscionable means
to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. It then provides a non-exhaustive
list of certain types of conduct that violate the statute, including “[t]he collection of any amount
(including any interest, fee, charge, or expense incidental to the principal obligation) unless such
amount is expressly authorized by the agreement creating the debt or permitted by law.” Id.
§ 1692f(1) (emphasis added).
Viewing the evidence in the light most favorable to Plaintiff, the summary judgment
record does not disclose any genuine issue of material fact on the issue whether AR Resources
either collected or attempted to collect unauthorized amounts from Plaintiff. Indeed, the only
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evidence in the record that AR Resources attempted to collect any debt at all from Plaintiff are
two letters in which AR Resources sought to collect uncontested amounts of $420 and a later
charge of $42. Dkts. 55-2, 55-4, 55-5. But Plaintiff admits that he owed $420 for medical
services received at Martha Jefferson Hospital. Dkt. 55-1; Dkt. 56 at 2 (“the correct original
amount owed is $420”). 2
To be sure, there is one page of the January 2019 Experian report that, as this Court noted
in its opinion on AR Resources’ motion to dismiss, see Dkt. 34 at 6–7, references incorrect
amounts Plaintiff owed. While the Court determined on the motion to dismiss that Plaintiff’s
allegations on this issue were sufficient to state a plausible claim to relief, the summary judgment
record as set forth more fully below demonstrates that there is no genuine issue of material fact
that AR Resources did not collect or attempt to collect unauthorized amounts from Plaintiff—
notwithstanding this stray remark in one credit report (that was subsequently corrected the
following month). See infra. Thus, while Plaintiff disputes that he owed between $1004 and
$1129 to AR Resources at any time, Dkt. 56 at 1, taking the evidence in the light most favorable
to Plaintiff, still the Court concludes that no reasonable jury could find that AR Resources ever
actually collected or attempted to collect any such sum from him. Having failed to establish any
genuine issue of material fact on this element of Plaintiff’s FDCPA claim, the Court concludes
that AR Resources is entitled to summary judgment on the issue.
Separately, Plaintiff argues that AR Resources violated § 1692f(1) by “reporting false
amounts to the principal obligation 17 times” to Experian, which amounts were not authorized
by the agreement creating the debt or permitted by law. Dkt. 67 at 1–2; see also Dkt. 56 at 1–2

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It is immaterial that Plaintiff disputes that he received either letter from AR Resources,
Dkt. 55-1, as he has not asserted that in either letter, AR Resources attempted to collect from him
in an amount beyond that which they were rightfully owed.
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(challenging “false 17 reported amounts to Experian” by AR Resources as violating § 1692f(1)).
However, even if reporting a debt to a credit reporting agency constituted collection activity,
Plaintiff still has not shown the existence of a genuine issue of material fact that would preclude
summary judgment on his claim. Courts have “limited § 1692f’s prohibitive reach to conduct
that is separate and distinct from other FDCPA violations and thus dismiss § 1962f claims where
a plaintiff fails to allege any misconduct beyond that which violates the other provisions of the
FDCPA asserted in the complaint.” Jennings v. Dynamic Recovery Solutions, LLC, 441 F. Supp.
3d 106, 116 (D. Md. 2020) (citation omitted); see also Archie v. Nagle & Zaller, P.C., 790 F.
App’x 502, 503 n.1 (4th Cir. 2019). Significantly, another provision of the FDCPA specifically
prohibits “[c]ommunicating or threating to communicate 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.” 15 U.S.C. § 1692e(8) (emphasis added). Since § 1962e(8) specifically
details prohibition of the type of conduct Plaintiff alleges, the Court concludes that Plaintiff must
establish the elements of a claim under that provision rather than a more general § 1692f.
Plaintiff has not demonstrated the existence of a genuine dispute of material fact whether
AR Resources knew the information reported to Experian was false or should have known it to be
false. Indeed, Plaintiff has failed to provide any factual or evidentiary basis for that assertion. He
argues that that AR Resources reported 17 false amounts Experian, and that “an inconsistent
amount” was added each month, which, he contended, does not show any “logically consistent
error … and could only be inten[tionally] created.” Dkt. 56 at 1–2; see also Dkt. 56-1 at 2. The
Court will assume that some inference may be drawn in Plaintiff’s favor, that varying amounts
reported to Experian tended to support an inference of some intentional or deliberate act on the
part of AR Resources. Nevertheless, without more, that evidence and inference would fall far

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short of constituting such evidence as would create a genuine dispute of material fact on the issue
whether AR Resources knew or should have known that the information reported was false. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (holding that “[t]he mere existence of
a scintilla of evidence in support of the plaintiff’s position” will not preclude summary
judgment).
Indeed, with the benefit of additional evidence following discovery, Plaintiff’s assertions
that AR Resources knowingly misreported incorrect information to Experian have become only
less persuasive. Initially, Plaintiff had identified a single page of his January 2019 Experian
credit report information for an AR Resources account, which showed certain amounts Plaintiff
owed, beginning in January 2017 ($1,004) and ending on October 2018 ($1,129). See, e.g.,
Dkt. 11-1 at 3. And that account purported to show an original amount owed of $784. Id. All
agree that these amounts are incorrect. Dkt. 55 at 5–6; Dkt. 56 at 1. However, on the more
developed summary judgment record, the significance of that single page is greatly reduced and
explained by surrounding pages of the report and other reports—undermining any contention that
AR Resources communicated information it knew or should have known to be false.
For instance, earlier Experian credit reports show that this same AR Resources account
had (correctly) reflected that Plaintiff owed an “original amount” of $420, which account history
began in February 2018. See Dkt. 68-2 at 24 (Plaintiff’s Experian credit report, of March 2018).
The full January 2019 Experian credit report contains the page Plaintiff had originally
identified, which incorrectly shows amounts owed on this account from January 2017 to October
2018. See Dkt. 56-1 at 2. To be sure, that same page of the report noted that Experian had
“completed the processing of your dispute(s),” and with respect to this account, “[t]he company
that reported the information has certified to Experian that the information is accurate. This item

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was not changed as a result of our processing of your dispute.” Id. However, critically, all of this
information was listed under a header “Before dispute.” Id. (emphasis added). While there was
no similar “After dispute” heading after that account information, on the very next page of that
January 2019 report, the account associated with AR Resources correctly reflects the original
amount of $420. Id. at 2–3. Moreover, it further correctly reflects that that sum remained
unchanged in the “account history” portion of the report, between February and December 2018.
Id. at 3.
Again, with the benefit of a more developed record, the Court now also has in the record
still further evidence on this issue. Significantly, in Plaintiff’s Experian credit report the
following month (February 2019), Experian stated, regarding his dispute concerning the AR
Resources account: “Outcome – Updated.” Dkt. 68-2 at 3 (emphasis added). It continued: “The
information you disputed has been verified as accurate; however, information unrelated to your
dispute has been updated. Please review your report for the details.” Id. At this point, the report
shows under the “Before dispute” header, the AR Resources account information correctly
showed an original amount owed of $420, which amount remained unchanged monthly. Id.
Then, after that information, there is an “After dispute” header. And again, the same, correct
information is there, showing an original amount owed of $420, and an “account history” with
that sum unchanged. Id. at 4. In addition, the record now also contains an Experian credit report
from March 2019 for Plaintiff—which was issued to Plaintiff before he filed his lawsuit. And
that too, contains correct information as to the AR Resources account: an original amount owed
of $420, which amount stayed constant monthly in the account history. Dkt. 68-2 at 14.
The Court concludes—upon consideration of the evidence before the Court on this
summary judgment record and viewing the evidence in the light most favorable to Plaintiff and

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drawing all reasonable inferences in his favor—that the evidence is such that no reasonable jury
could find for Plaintiff that AR Resources communicated account information to Experian that it
knew or should have known was false, as required to support his FDCPA claim. The evidence is
uncontradicted that both before and after January 2019, the AR Resources account information in
Plaintiff’s Experian credit reports was accurate, showing an original amount owed of $420 and
an unchanging monthly balance of $420. While Plaintiff’s January 2019 Experian report showed
incorrect information on one page for the AR Resources account, notably, this information was
listed under a “Before dispute” heading, and the correct information on this very same account
was found on the following page of the report. In addition, the February 2019 Experian report
from the following month stated that Plaintiff’s dispute regarding the AR Resources account had
an “Outcome: updated,” which then reflected correct information ($420 owed) in both the
“Before dispute” and “After dispute” sections of the report. This February 2019 Report was
issued before Plaintiff filed suit in this case, correcting Plaintiff’s asserted error in his credit file
for the AR Resources account. Placing that one page in the full context of the January 2019
Experian report, as well as in the context of earlier and subsequent reports and the rest of the
record evidence, the Court concludes that Plaintiff has not demonstrated the existence of a
genuine dispute of material fact that AR Resources communicated account information to
Experian that it knew or should have known was false. See, e.g., Alston v. United Coll. Bureau,
Inc., No. 13-cv-913, 2014 WL 859013, at *1, 4 (D. Md. Mar. 4, 2014) (holding that, “[e]ven if
reporting a debt to credit reporting agencies constitutes collection activity,” the plaintiff failed to
state a claim under § 1692e(8), as “Plaintiff’s allegation fails to demonstrate that at the time
UCB reported the account to Equifax, Experian, and TransUnion, it knew or should have known
that the information was false”).

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For these reasons, the Court concludes that AR Resources is entitled to summary
judgment on Plaintiff’s sole remaining claim. The Court will grant AR Resources’ motion for
summary judgment and deny Plaintiff’s motion for summary judgment. An accompanying Order
will issue.
The Clerk of the Court is directed to send a copy of this Memorandum Opinion to the
parties.
Entered this 29th

day of September, 2021.

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