Collins v. Diversified Consultants

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 26, 2018
• Docket: 17-1446
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 26, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court MICHAEL A. COLLINS,

Plaintiff - Appellant,

v. No. 17-1446 (D.C. No. 1:15-CV-02115-RBJ-NYW) DIVERSIFIED CONSULTANTS INC.; (D. Colo.) MEDICREDIT INC.; TRANS UNION, LLC; EXPERIAN INFORMATION SOLUTIONS, INC.; EQUIFAX INFORMATION SERVICES, LLC,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges. _________________________________

Pro se litigant Michael Collins appeals the district court’s grant of summary

judgment to the defendants on the majority of his claims. He also appeals the jury

verdict entered against him on the remaining claims and the order denying his motion

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. filed under Fed. R. Civ. P. 59 to set aside the jury verdict.1 After Mr. Collins filed

his notice of appeal, this court noted a possible jurisdictional defect in that the claims

against defendant Stellar Recovery, Inc. (Stellar) had not been finally resolved.

Thereafter, the district court dismissed the claims against Stellar with prejudice,

thereby conferring appellate jurisdiction. See Lewis v. B.F. Goodrich Co., 850 F.2d

641, 645-46 (10th Cir. 1988) (premature notice of appeal ripens to confer appellate

jurisdiction when district court enters final order). Stellar is not a party to this

appeal.

We conclude that this appeal is frivolous. Accordingly, we affirm the

judgment, deny Mr. Collins’ motion to proceed in forma pauperis (IFP), deny his

motion for a trial transcript at government expense, and grant Medicredit, Inc.’s

motion for attorney fees and double costs on appeal.

I. BACKGROUND

Mr. Collins sued three debt collectors, Diversified Consultants, Inc.

(Diversified), Medicredit, Inc. (Medicredit), and Stellar, alleging violations of the

Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act

(FDCPA).2 He also sued three credit reporting agencies, Trans Union, LLC

(Trans Union), Experian Information Solutions, Inc. (Experian), and Equifax

1 Mr. Collins does not appeal the district court’s award of attorney fees and costs to various defendants. 2 Mr. Collins has abandoned his claims brought under the Colorado Consumer Protection Act and his state-law negligence claims. 2 Information Services, LLC (Equifax) (collectively, the CRAs), alleging violations of

the FCRA.

A magistrate judge and the district court thoroughly and extensively analyzed

all of Mr. Collins’ claims. Summary judgment was granted to all defendants on all

but two claims. Those claims were against Diversified and Medicredit and proceeded

to a jury trial. The jury returned a verdict in their favor. Mr. Collins then filed a

motion for a new trial under Fed. R. Civ. P. 59, which the district court denied.

II. DISCUSSION

A. Standards of Review

“We review a district court’s decision to grant summary judgment de novo,

applying the same standard as the district court.” Maiteki v. Marten Transp. Ltd.,

828 F.3d 1272, 1275 (10th Cir. 2016) (internal quotation marks omitted). 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).

“When a party challenges the jury’s verdict on appeal, our review is limited to

determining whether the record—viewed in the light most favorable to the prevailing

party—contains substantial evidence to support the jury’s decision. . . . Thus, we

may reverse a jury’s verdict only if the evidence points but one way and is not

susceptible to any reasonable inferences supporting the verdict.” Zia Shadows,

L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1247 (10th Cir. 2016) (citations and

internal quotation marks omitted).

3 We liberally construe Mr. Collins’ pro se filings. See Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however, “take on

the responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Id. Moreover, “pro se parties [must] follow the same rules of

procedure that govern other litigants.” Id. (internal quotation marks omitted).

B. Diversified and Medicredit

(1) Diversified

Mr. Collins’ claims against Diversified are based on Diversified’s efforts to

collect a debt he owed to Comcast. When a Diversified representative telephoned

him, Mr. Collins told the caller that he disputed the debt and that he would probably

sue Comcast. Mr. Collins alleged that a Comcast representative came to his

residence to collect the balance due of approximately $400, but informed Mr. Collins

that he could either pay $200 to restore his services or pay $200 to disconnect his

services. Mr. Collins further alleged that his sister paid Comcast $220 in November

2014. On February 14, 2015 and April 30, 2015, Diversified reported to the CRAs

that the debt was disputed. Mr. Collins maintains that he did not owe any money to

Comcast. On September 14, 2015, Diversified submitted a request to the CRAs to

delete the debt from Mr. Collins’ credit file.

The district court granted summary judgment to Diversified on most of

Mr. Collins’ claims. The jury returned a verdict in Diversified’s favor on the

remaining claim. On appeal, Mr. Collins assigns error to the grant of summary

4 judgment on his claim that Diversified violated the FCRA and to the jury verdict on

his FDCPA claim.

Mr. Collins’ FCRA claim is based on Diversified’s response to an Automated

Credit Dispute Verification (ACDV) sent by Trans Union. The ACDV informed

Diversified that Mr. Collins disputed the Comcast debt and requested verification of

the account information. Under the FCRA, 15 U.S.C. § 1681s-2(b), Diversified was

required to investigate the completeness and accuracy of information that was

disputed by Mr. Collins. Upon receipt of the ACDV, Diversified investigated and

responded that the information it had reported to the CRAs was accurate. This

procedure was described in an affidavit by Mr. Goodwin, Diversified’s Chief

Compliance Officer.

Mr. Collins first complains that he was not permitted to conduct adequate

discovery before summary judgment was entered on this claim. He says he required

discovery to prove his allegation that Diversified did not send him the initial notice

from Diversified’s files. Aplt. Opening Br. at 20. This apparently refers to the

notice required to be sent by Diversified, which formed the basis of his FDCPA claim

under 15 U.S.C. §1692g(a), the claim that went to trial. But Diversified admitted that

it did not send the notice. Moreover, Mr. Collins concedes that the magistrate judge

granted time for discovery, although he claims the time was insufficient to complete

discovery. Mr. Collins has not made a “clear showing that the denial of discovery

resulted in actual and substantial prejudice,” so we conclude that the district court’s

5 discovery ruling was not an abuse of discretion. Garcia v. Tyson Foods, Inc.,

770 F.3d 1300, 1309 (10th Cir. 2014).

Mr. Collins avers that Diversified did not conduct an appropriately thorough

investigation, as required by § 1681s-2(b). In his affidavit, Mr. Goodwin explained

that Diversified confirmed that the Comcast debt it had reported was accurate.

Mr. Collins’ appellate argument is that Mr. Galvis, counsel for Diversified, admitted

that Diversified did not investigate the dispute, thus showing that Mr. Goodwin lied.

Mr. Collins cites only to Mr. Goodwin’s affidavit and a minute order about trial

preparation, which do not support his assertion.

His remaining arguments, including those advocating for plain-error review

and claiming fraud on the court, are too general and conclusory to warrant review.

See Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1146 (10th Cir. 2009) (rejecting

appellate claim as inadequately briefed because the claim was addressed in only

conclusory fashion). Therefore, we affirm the summary judgment entered in favor of

Diversified. We address below Mr. Collins’ challenge to the jury verdict.

(2) Medicredit

Mr. Collins’ claims arose from Medicredit’s attempt to collect a debt owed to

Boulder Holistic Medical Center. After Mr. Collins disputed the debt, in June 2011,

Medicredit deleted the debt and ceased reporting it to the CRAs. In July 2015,

Medicredit converted to a new software program. As a result, on July 19, 2015, this

debt re-reported on Mr. Collins’ account, even though it had been deleted from the

old system. On September 9 and September 11, 2015, Medicredit received notice

6 from the CRAs that Mr. Collins disputed this account. On September 13, 2015,

Medicredit deleted the debt and ceased reporting it to the CRAs. Mr. Collins asserted

that re-reporting the debt violated the FDCPA. This claim went to trial. The jury

returned a verdict that Mr. Collins had not proved his FDCPA claim. Mr. Collins

challenges the verdict.

(3) Jury Trial – Diversified and Medicredit

The jury trial was limited to one claim each against Diversified and Medicredit

for violating the FDCPA. Mr. Collins alleged Diversified violated §1692g(a) based

on a notice required to be sent by Diversified to Mr. Collins, which Diversified

admitted it did not send. Diversified asserted that this failure was the result of a bona

fide error. The jury found that although Diversified violated §1692g(a), Diversified

proved its affirmative defense of a bona fide error.

Mr. Collins alleged Medicredit violated the FDCPA when it re-reported the

Boulder Holistic Medical Center debt. See 15 U.S.C. §1692e (“A debt collector may

not use any false, deceptive, or misleading representation or means in connection

with the collection of any debt.”). Medicredit also invoked the bona-fide-error

defense, but rather than finding Medicredit was entitled to the defense, the jury found

that Mr. Collins had not proved his claim against Medicredit.

Mr. Collins challenges the jury verdict, first arguing that the jury instructions

were erroneous. Because Mr. Collins did not object to the jury instructions at trial,

we review only for plain error. See Johnson ex rel. Estate of Cano v. Holmes,

455 F.3d 1133, 1141 (10th Cir. 2006). “Under that standard, we will affirm unless

7 the instructions were patently, plainly erroneous and prejudicial.” Id. (internal

quotation marks omitted).

Mr. Collins asserts that the jury instruction concerning bona fide error was

erroneous because it did not instruct the jury that the defendants “must maintain and

have in place procedures to avoid the specific error at issue.” Aplt. Opening Br. at

51. But Instruction No. 11 stated that to establish the bona-fide-error defense, the

defendants “must show . . . that they maintain procedures reasonably adapted to

prevent the occurrence of errors such as occurred in this case.” R. Vol. 4, at 169

(emphasis added). Thus, we perceive no error, let alone plain error.

Mr. Collins claims the instructions should have been different, see Aplt.

Opening Br. at 53, but he has not explained why his newly proffered instructions

were required for the issues presented to the jury, or why the instructions given were

erroneous. He has again failed to demonstrate error.

Mr. Collins also argues that the verdict is against the weight and

preponderance of the evidence. He relies on Mr. Goodwin’s testimony that a

Diversified debt collector erroneously assumed that Mr. Collins was represented by

an attorney. He does not, however, explain why this testimony was relevant to the

issues before the jury, let alone why it requires setting aside the verdict.

Mr. Collins makes a brief claim that the district court erroneously dismissed

his claims under other sections of the FDCPA. He asserts only that these claims

should have been included in the jury instructions because he showed that he did not

owe the Comcast debt. He does not claim that he requested such jury instructions at

8 trial, nor does he explain how these FDCPA sections were relevant to his case against

Diversified. Once again, he has failed to establish error.

As to Medicredit, Mr. Collins contends that Medicredit admitted that it

reported his debt without marking it as disputed, so the jury was required to conclude

that Medicredit made a false, deceptive, or misleading representation. Jury

Instruction No. 9 required Mr. Collins to prove that Medicredit made a false,

deceptive, or misleading representation in connection with the collection of a debt.

R. Vol. 4, at 167. Medicredit did not admit that it reported the debt in connection

with the collection of a debt; rather, it stated that the re-reporting of the debt was due

to a computer glitch. Because “a debt collector does not have an affirmative duty to

notify CRAs that a consumer disputes the debt unless the debt collector knows of the

dispute and elects to report to a CRA,” Llewellyn v. Allstate Home Loans, Inc.,

711 F.3d 1173, 1189 (10th Cir. 2013), we reject Mr. Collins’ argument that

Medicredit’s admission rendered the verdict against the weight of the evidence.

Mr. Collins next contends that the jury’s verdict in Medicredit’s favor “was the

product of bias, prejudice, or passion.” Aplt. Opening Br. at 59. This claim is based

on the closing argument presented by Medicredit’s attorney referring to Mr. Collins’

trial evidence that he would have purchased cars for his granddaughters but for the

errors in his credit reports, which prevented him from obtaining credit. This subject

was relevant to Mr. Collins’ claim for damages. Given the jury’s verdict that

Medicredit did not violate the FDCPA, it did not consider the issue of damages.

Therefore, despite Mr. Collins’ assertion that the closing argument incited the

9 passion of the jury, we conclude that even if the argument was improper, it does not

warrant overturning the verdict. See King v. PA Consulting Grp., Inc., 485 F.3d 577,

591 (10th Cir. 2007) (“We will not reverse on an improper [closing] argument unless

it obviously prejudices one of the parties.” (alterations and internal quotation marks

omitted)).

Mr. Collins’ remaining challenges to the jury verdict, such as the trial was

unfair and the facts did not support the jury’s verdict, are inadequate for appellate

review. See Kerber, 572 F.3d at 1146. For the reasons stated above, we affirm the

judgment based on the jury verdict.

After trial, Mr. Collins filed a motion under Fed. R. Civ. P. 59 to set aside the

verdict and grant a new trial. He contends that the district court’s denial of the

motion was arbitrary and without just cause, relying on the arguments addressed

above. For the same reasons we affirm the verdict, we conclude that the district court

did not abuse its discretion in denying a new trial. See Mathis v. Huff & Puff

Trucking, Inc., 787 F.3d 1297, 1308 (10th Cir. 2015) (reviewing denial of a motion

for a new trial for abuse of discretion).

C. Trans Union, Experian, and Equifax

Mr. Collins alleged that the CRAs violated the FCRA, 15 U.S.C. §§ 1681e(b)

& 1681i(a).3 On appeal, he challenges only the rulings as they pertain to the Comcast

3 Although Mr. Collins includes 15 U.S.C. § 1681g in the heading for this argument, see Aplt. Opening Br. at 27, he presents no argument on this statute. Therefore, he has waived any such argument. See Toevs v. Reid, 685 F.3d 903, 911 10 account and he incorporates substantially the same arguments with regard to all the

CRAs.

Sections 1681e(b) and 1681i(a) require CRAs to assure the accuracy of their

consumer files and reports. “To prevail on a §1681i(a) claim . . . , plaintiffs must

prove essentially the same elements as those for a §1681e(b) claim—unreasonable

procedures in reinvestigating a report, inaccuracy of the report, injury, and

causation—in addition to proving they informed the CRA about the inaccuracy.”

Wright v. Experian Info. Sols., Inc., 805 F.3d 1232, 1242 (10th Cir. 2015).

The district court held that Mr. Collins failed to demonstrate a genuine issue of

material fact (1) that the CRAs’ procedures for reinvestigating a report were

unreasonable or (2) that their reports of the Comcast account were inaccurate. We

affirm on the first point, which makes it unnecessary to consider the second.

Mr. Collins asserts that the reinvestigation of his dispute of the Comcast debt

was unreasonable because the ACDV did not inform Diversified that he had sent a

letter to Trans Union saying he did not owe Comcast any money. Therefore, he

contends the ACDV was inadequate because it stated only that he claimed inaccurate

information had been provided and it requested verification of account information.

As discussed above, however, Diversified responded to the ACDV by confirming that

the Comcast debt it had reported was accurate. Thus, Mr. Collins has not shown that

the CRAs’ use of the ACDV violated the FCRA.

(10th Cir. 2012) (“Arguments not clearly made in a party’s opening brief are deemed waived.”). In addition, Mr. Collins dismissed his § 1681i claim against Equifax. 11 Mr. Collins next challenges the district court’s determination that the CRAs

appropriately relied on Diversified to be a reputable furnisher of information.4 A

CRA does not violate § 1681e(b) if it relies on information “received from a source

that it reasonably believes to be reputable, and which is credible on its face.”

Cassara v. DAC Servs., Inc., 276 F.3d 1210, 1217 (10th Cir. 2002) (internal

Mr. Collins refers to unidentified “orders” and “letters” to demonstrate that

Diversified “furnishes false information to the CRAs all the time.” Aplt. Opening Br.

at 31, 32. It is unclear whether these references are to consent orders issued by the

Administrator of the Colorado FDCPA imposing discipline on Diversified in other

cases, or to his own letter to Trans Union disputing the Comcast debt. Mr. Collins

does not challenge the district court’s finding that the consent orders were irrelevant

because he did not show that the CRAs were aware of them and none of the

discipline imposed on Diversified concerned reinvestigation or verification of a

disputed debt. As to Mr. Collins’ own letter, it is not relevant to whether Diversified

was a reputable furnisher of information; indeed, as discussed above, Diversified

provided accurate information on Mr. Collins’ account. Finally, Mr. Collins again

alleges that Diversified’s attorney admitted that Diversified did not investigate the

Comcast account, a claim we have already rejected.

4 Although Mr. Collins also claims Stellar was not a reputable furnisher, he has provided no argument to support this claim, so we do not consider it. See Kerber, 572 F.3d at 1146. 12 Therefore, we affirm the summary judgment in favor of the CRAs on

Mr. Collins’ FCRA claims. This holding obviates Mr. Collins’ arguments pertaining

to the CRAs’ alleged willful violations of the FCRA and his claims for damages. The

CRAs did not violate the FCRA, willfully or otherwise, so they are not liable for

damages. Similarly, we reject Mr. Collins’ claim of cumulative error because he has

not prevailed on any of his attempts to demonstrate error. See Smith v. United States,

555 F.3d 1158, 1171 (10th Cir. 2009) (holding “there can be no cumulative error”

where plaintiff did not prevail on any of his appellate arguments).

III. PENDING MOTIONS

As is apparent from our discussion of Mr. Collins’ appellate arguments, his

appeal is “wholly without merit;” therefore, his appeal is frivolous. See FDIC v.

McGlamery, 74 F.3d 218, 222 (10th Cir. 1996) (“An appeal is considered frivolous

when the result is obvious, or the appellant’s arguments of error are wholly without

merit.” (internal quotation marks omitted)). Based on our finding of frivolousness,

we, like the district court, deny Mr. Collins’ request to proceed IFP on appeal. See

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (requiring a reasoned

and nonfrivolous argument to proceed IFP on appeal). Further based on our finding

of frivolousness, we deny Mr. Collins’ request for a trial transcript at government

expense. See 28 U.S.C. § 753(f) (providing for a trial transcript at government

expense “to persons permitted to appeal in forma pauperis . . . if the trial judge or a

circuit judge certifies that the appeal is not frivolous (but presents a substantial

question)”).

13 Our frivolousness finding also warrants granting Medicredit’s separately filed

motion for attorney fees and double costs on appeal. See Fed. R. App. P. 38 (“If a

court of appeals determines that an appeal is frivolous, it may, after a separately filed

motion or notice from the court and reasonable opportunity to respond, award just

damages and single or double costs to the appellee.”). “Under Rule 38 . . . attorney

fees and costs are appropriate if a court determines ‘an appeal is frivolous.’”

In re Nat. Gas Royalties Qui Tam Litig., 845 F.3d 1010, 1026 (10th Cir.) (quoting

Rule 38), cert. denied, 138 S. Ct. 84 (2017). Mr. Collins did not oppose the motion.

His pro se status does not preclude an award of attorney fees and costs. See Kyler v.

Everson, 442 F.3d 1251, 1253 (10th Cir. 2006). Therefore, we grant the motion and

remand to the district court to make the required factual findings and to determine the

amount of attorney fees and costs to be awarded to Medicredit. See Braley v.

Campbell, 832 F.2d 1504, 1515 (10th Cir. 1987) (instructing that the court imposing

sanctions may remand to the district court to determine the amount).

IV. CONCLUSION

The district court’s judgment is affirmed. Mr. Collins’ motion to proceed on

appeal IFP is denied. Therefore, immediate payment of the appellate filing fee is due

and payable to the district court. Mr. Collins’ request for a trial transcript at

government expense is denied. Medicredit’s motion for attorney fees and double

14 costs on appeal is granted; the appeal is remanded to the district court to determine

the amount.

Entered for the Court

Bobby R. Baldock Circuit Judge