Anderson v. Credit Bureau Collection Services, Inc.

422 F. App'x 534
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 25, 2011
DocketNo. 10-3815
StatusPublished
Cited by2 cases

This text of 422 F. App'x 534 (Anderson v. Credit Bureau Collection Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Credit Bureau Collection Services, Inc., 422 F. App'x 534 (7th Cir. 2011).

Opinion

ORDER

Joshua Anderson sued Credit Bureau Collection Services (“CBCS”)1 after the company tried to collect $1,013 allegedly owed to U.S. Cellular. Anderson claimed that CBCS violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 to 1692p, by not sending him the notice required by § 1692g(a) within five days of its initial communication. See McKinney v. Cadleway Props., Inc., 548 F.3d 496, 500 (7th Cir.2008). The district court granted summary judgment for CBCS. We conclude that CBCS failed to introduce admissible evidence that the notice was sent, and thus we vacate the judgment and remand for further proceedings.

The FDCPA requires that debt collectors “send” a prescribed notice to consumers within five days of making an initial communication. 15 U.S.C. § 1692g(a). [536]*536That notice shall include the name of the creditor and the dollar amount sought, and also must alert the consumer that a failure to dispute the alleged debt will allow the collection agency to. assume its validity. Id. If notice is not sent or is inadequate, an aggrieved consumer may recover actual or statutory damages not exceeding $1,000. Id. § 1692k.

CBCS corresponded with Anderson in January 2010 and offered to settle U.S. Cellular’s claim at a discount. That much is undisputed. And the company concedes that it did not send the notice required by § 1692g(a) with, or within five days of, this communication. According to Anderson, the January correspondence was the first and only communication he received from CBCS, which if true raises an inference, though perhaps weak, that no prior communication was sent. See Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 420 (5th Cir.2007); Barrett v. Nicholson, 466 F.3d 1038, 1042 (Fed.Cir.2006). But in answering Anderson’s complaint, CBCS affirmatively represented that another letter was sent in October 2009 informing him that the company intended to collect the debt to U.S. Cellular and giving him the statutorily required notice. Anderson’s lawsuit turns on the veracity of that representation, since he does not contend that a debt collector will escape liability under § 1692k only by proving that statutory notice was received by the consumer. See Mahon v. Credit Bureau, Inc., 171 F.3d 1197, 1201 (9th Cir.1999); Zamos v. Asset Acceptance, LLC, 423 F.Supp.2d 777, 785 (N.D.Ohio 2006); Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1097 (D.Or.2000).

Anderson’s appeal raises several procedural issues, but the significant question is whether the admissible evidence in the record would allow a jury to conclude that CBCS timely sent him the statutory notice. CBCS moved for summary judgment in July 2010, two months before the discovery cutoff and three months before the deadline set by the district court for filing dispositive motions. That motion, which did not include proposed findings of fact or the admonishments to pro se litigants required by local rule, see E.D. Wis. Civ. L.R. 56(a), (b)(1)(C); Timms v. Frank, 953 F.2d 281, 285 (7th Cir.1992), pressed the contention from CBCS’s answer that it communicated with Anderson initially in October 2009 and sent the statutory notice at that time. But CBCS did not submit a copy of a communication addressed to Anderson or any physical evidence that correspondence was sent to him in October, e.g., a receipt from the Postal Service or another carrier, an entry from a mailing log, or even a copy of a metered envelope addressed to Anderson in Wisconsin. Instead, CBCS provided an affidavit from Sang Ki, the general manager of CBCS’s office in Jacksonville, Florida, and templates of the company’s form letters bearing an address in Columbus, Ohio, where CBCS is based. Ki attested that CBCS does not keep copies of correspondence with debtors but said he knew from its “electronic system” that “CBCS sent correspondence” to Anderson in Wisconsin on October 28, 2009. Ki did not explain his connection to Anderson’s account or to communications apparently originating in Columbus. He did not attach a printout of Anderson’s file or any other record from a CBCS database, nor did he establish familiarity with the entries made to that system.

A month later CBCS realized that its motion did not comply with the local rule. The company filed an amended motion, this time including a proposed statement of facts and the Timms notice but omitting Ki’s affidavit. That filing crossed in the mail with one from Anderson, who moved to compel CBCS to respond to his discovery requests; he also asked for a revised [537]*537scheduling order, arguing that he would be unable to file dispositive motions by the October deadline because CBCS was delaying discovery. The next week Anderson, who was incarcerated, filed a motion asking for more time to oppose summary judgment. He explained that, for reasons unknown to him, he still had not received CBCS’s original motion for summary judgment or the supporting documents. He was aware of the earlier motion, he said, only because it is mentioned in the amended motion, which he received in early September. Anderson added that, because the amended motion did not include Ki’s affidavit or the supporting documents, he lacked the materials necessary to oppose summary judgment.

CBCS opposed Anderson’s motions to compel discovery and for additional time, though the company did send him another copy of its original motion for summary judgment and the attachments. Anderson received Ki’s affidavit on September 23, and six days later he replied to CBCS’s opposition to his requests for more time and discovery. In a sworn declaration, see 28 U.S.C. § 1746; Owens v. Hinsley, 635 F.3d 950, 955 (7th Cir.2011), Anderson quoted an answer that he had received on September 17 to one of his interrogatories, in which CBCS acknowledges that a “third-party letter vendor” actually “conducted the clerical tasks of printing and mailing the letter” allegedly sent to Anderson in October 2009. That admission, argued Anderson, established that Ki’s affidavit contained a false or misleading representation that “CBCS sent” correspondence to him in October 2009. Anderson added that CBCS was refusing to disclose the identity of the vendor, and repeated his request that the district court compel discovery and allow him additional time to oppose summary judgment.

Two weeks later the district court issued a brief order granting CBCS’s motion for summary judgment and denying Anderson’s pending motions. The court reasoned:

Although CBCS does not have a copy of the exact correspondence it sent ..., one of its managers has asserted under oath that its computer system confirms that such correspondence was sent and all of its initial communications contain the required notice of debt____Plaintiff has not responded to this evidence. Instead, he has filed a motion to compel answers to his discovery requests.

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422 F. App'x 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-credit-bureau-collection-services-inc-ca7-2011.