Lillie M. Middlebrooks v. Sacor Financial, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 30, 2019
• Docket: 18-13770
• Status: Unpublished

Opinion

Case: 18-13770 Date Filed: 05/30/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13770 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cv-00679-SCJ

LILLIE M. MIDDLEBROOKS,

Plaintiff-Appellant,

versus

SACOR FINANCIAL, INC., LAZEGA & JOHANSON, LLC, MARK A. MOORE, ROOSEN VARCHETTI & OLIVER - GA PLLC, CHERICE A. TADDAY,

Defendants-Appellees. ________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(May 30, 2019)

Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-13770 Date Filed: 05/30/2019 Page: 2 of 10

Lillie M. Middlebrooks, proceeding pro se, appeals the district court’s grant

of summary judgment in favor of Sacor Financial, Inc. (“Sacor”), Lazega

& Johanson, LLC (“L&J”), Mark A. Moore (“Moore”), Roosen Varchetti,

& Olivier-GA PLLC (“RVO”), and Cherice A. Tadday (“Tadday”) (collectively

“Defendants”) on her claims under the Fair Credit Reporting Act (“FCRA”), 15

U.S.C. § 1681b, and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.

§§ 1692e and 1692d. Middlebrooks contends that the Defendants acted

deceptively, in violation of § 1692e, by pursuing legal action against her in state

court to collect a credit card debt that she alleges they did not own or otherwise

have the right to pursue. She argues that their actions in the state court also

amounted to harassment or abuse, in violation of § 1692d. Relatedly, she argues

that Sacor, L&J, and Moore violated the FCRA by obtaining her consumer report

from a credit reporting agency because, as they did not own her debt, they did not

have a permissible purpose to obtain the report. She also argues that the district

court abused its discretion in denying her motion to amend her complaint and in

ordering her to pay the costs of the litigation.

I.

We review the district court’s decision of whether to grant leave to amend a

pleading for abuse of discretion. Walker v. S. Co. Servs., Inc., 279 F.3d 1289, 1291

(11th Cir. 2002). When a non-dispositive issue is referred to a magistrate judge to

2 Case: 18-13770 Date Filed: 05/30/2019 Page: 3 of 10

decide on, the parties have 14 days to object to the resulting order. Fed. R. Civ. P.

72(a). “A party may not assign as error a defect in the order not timely objected

to.” Id. In Smith v. School Board of Orange County, for example, we deemed that

a pro se party had waived appellate review of a magistrate judge’s non-dispositive

order by failing to object to the order at the district court level. 487 F.3d 1361,

1363, 1365 (11th Cir. 2007).

Middlebrooks has waived the issue of amendment for purposes of appeal by

failing to object to the magistrate judge’s order denying her motion to amend or

replead her complaint. 1 Fed. R. Civ. P. 72(a); Smith, 487 F.3d at 1365.

Accordingly, we affirm as to this issue.

II.

We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the non-moving party. Brooks v. Cty.

Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006).

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). In order to survive summary judgment, the opposing

1 Although Sacor argues that Middlebrooks failed to adequately identify, in her notice of appeal, the order denying her motion to amend, we construe Middlebrooks’s pro se notice of appeal liberally and deem it adequate for us to consider this issue. See C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981); Jones v. Fla. Parole Comm’n, 787 F.3d 1105, 1107 (11th Cir. 2015). 3 Case: 18-13770 Date Filed: 05/30/2019 Page: 4 of 10

party must set forth specific facts showing that there is a genuine issue for trial,

and unsupported “conclusory allegations” do not suffice. Leigh v. Warner Bros.,

Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). When reviewing a magistrate judge’s

report, the district court must review the objected-to findings and recommendations

de novo. 28 U.S.C. § 636(b)(1).

The FDCPA provides a civil cause of action against any debt collector who

fails to comply with its requirements. Edwards v. Niagara Credit Sols., Inc., 584

F.3d 1350, 1352 (11th Cir. 2009). In general, § 1682e prohibits deceptive

practices in debt collection. Miljkovic v. Shafritz and Kinkin, P.A., 791 F.3d 1291,

1306 (11th Cir. 2015). Specifically, debt collectors “may not use any false,

deceptive, or misleading representation or means in connection with the

collection,” including falsely representing “the character, amount, or legal status of

any debt.” 15 U.S.C. § 1692e(2)(A). Debt collectors are also prohibited from

using “any false representation or deceptive means to collect or attempt to collect

any debt or to obtain information concerning a consumer.” Id. § 1692e(10). When

determining whether a debt collector’s actions were deceptive, this Court must

consider whether the “least sophisticated consumer” would be deceived.

Miljkovic, 791 F.3d at 1306 (quotation marks omitted).

A debt collector’s pursuit of judicial remedies to collect on a debt does not

by itself indicate a violation of § 1692e. See id. at 1307. In Miljkovic, a debt

4 Case: 18-13770 Date Filed: 05/30/2019 Page: 5 of 10

collector filed a writ of garnishment in state court to collect on a consumer’s debt

judgment, filed a sworn statement in opposition to the consumer’s claimed

exemption from the writ, and subsequently dissolved the writ. 791 F.3d at 1294,

1307. Observing that the debt collector’s sworn statement did not incorrectly state

the amount of the debt, incorrectly identify the holder of the debt, or contain false

or ambiguous threats of future litigation, we concluded that the sworn statement

did not support a claim under § 1692e because it was not misleading or deceptive.

Id. at 1306-07. “If judicial proceedings are to accurately resolve disputes,

including debt collection disputes, debt-collector attorneys must be permitted to

present legal arguments in their clients’ favor and to invoke the remedies available

to them, including wage garnishment.” Id. at 1307.

The FDCPA also prohibits a debt collector from “engag[ing] in any conduct

the natural consequence of which is to harass, oppress, or abuse any person in

connection with the collection of a debt.” 15 U.S.C. § 1692d. Prohibited conduct

includes threatening a consumer with violence, the use of “obscene or profane

language,” and repeatedly calling a consumer over the telephone. See id.

§ 1692d(1)-(6). Claims under § 1692d “should be viewed from the perspective of

a consumer whose circumstances makes him relatively more susceptible to

harassment, oppression, or abuse.” Jeter v. Credit Bureau, Inc., 760 F.2d 1168,

1179 (11th Cir. 1985). It is not enough that a debt collector’s actions caused the

5 Case: 18-13770 Date Filed: 05/30/2019 Page: 6 of 10

consumer “embarrassment, inconvenience, and further expense,” but rather those

actions must “manifest a tone of intimidation” to fall under the ambit of § 1692d.

Miljkovic, 791 F.3d at 1305 (quotation marks omitted). Threatening to file and

actually filing a lawsuit does not have the “natural consequence of harassing,

abusing, or oppressing” a consumer, and it follows that filing an oppositional

document once a lawsuit has commenced does not violate § 1692d because it “does

not represent[] the type of coercion and delving into the personal lives of debtors

that the FDCPA in general, and § 1692d in particular, was designed to address.”

Id. (quotation marks omitted) (alteration in original).

Section 1692i of the FDCPA provides venue rules for where debt collectors

may bring legal actions against consumers regarding a debt. 15 U.S.C. § 1692i(a).

It also provides that “[n]othing in this subchapter shall be construed to authorize

the bringing of legal actions by debt collectors.” Id. § 1692i(b). We read statutory

provisions harmoniously and as a whole, so that no portion of the statute is

meaningless or superfluous. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1173

(11th Cir. 2003).

The FCRA was enacted “to require that consumer reporting agencies adopt

reasonable procedures for meeting the needs of commerce for consumer

credit . . . in a manner which is fair and equitable to the consumer, with regard to

the confidentiality, accuracy, relevancy, and proper utilization of such

6 Case: 18-13770 Date Filed: 05/30/2019 Page: 7 of 10

information.” 15 U.S.C. § 1681(b). “[C]ivil liability for improper use and

dissemination of credit information may be imposed only on a consumer reporting

agency or user of reported information who willfully or negligently violates the

FCRA.” Rush v. Macy’s New York, Inc., 775 F.2d 1554, 1557 (11th Cir. 1985).

Consumer reporting agencies may furnish consumer reports for a limited

number of “permissible purposes,” including “[t]o a person which it has reason to

believe . . . intends to use the information in connection with a credit transaction

involving the consumer on whom the information is to be furnished and involving

the extension of credit to, or review or collection of an account of, the consumer.”

15 U.S.C. § 1681b(a)(3)(A). It is unlawful to obtain a consumer report for any

purpose not authorized by the FCRA. Id. § 1681b(f)(1).

Even though we read pro se briefs liberally, issues raised by a pro se party

for the first time in her reply brief are deemed abandoned. Timson v. Sampson,

518 F.3d 870, 874 (11th Cir. 2008) (per curiam).

The district court properly granted summary judgment in favor of the

Defendants, and further, the record shows that the district court reviewed

Middlebrooks’s objections to the magistrate judge’s Report and Recommendation

de novo. 2 28 U.S.C. § 636(b)(1); Brooks, 446 F.3d at 1161-62. The conclusory

2 Middlebrooks has abandoned the arguments that she raises for the first time in her reply brief regarding alleged evidentiary defects in an affidavit offered by Sacor. Timson, 518 F.3d at 874. Accordingly, we do not address those arguments. 7 Case: 18-13770 Date Filed: 05/30/2019 Page: 8 of 10

affidavits that Middlebrooks offers are not enough to create a genuine issue of

material fact as to Sacor’s ownership of her debt. Leigh, 212 F.3d at 1217. As

Middlebrooks’s FCRA and FDCPA claims rest upon her assertion that the

Defendants did not own her debt, those claims do not survive summary judgment.

Sacor’s filings in the underlying state court action accurately stated that it was the

owner of the judgment against Middlebrooks and accurately represented the

amount of the debt, and so were not false, deceptive, or misleading within the

meaning of § 1692e. Miljkovic, 791 F.3d at 1306-07. Also, as a general matter the

FDCPA does not prohibit debt collectors from pursuing legal remedies against

consumers. See 15 U.S.C. § 1692i; Shotz, 344 F.3d at 1172. Middlebrooks’s

§ 1692d claim does not survive summary judgment, either, because there was no

genuine issue regarding Sacor’s ownership of the debt and nothing in the

Defendants’ state court filings suggests a “tone of intimidation.” Miljkovic, 791

F.3d at 1305. Similarly, summary judgment was appropriate on Middlebrooks’s

FCRA claim. As the owner of the Middlebrooks’s judgement and debt, Sacor had

a “permissible purpose,” or at least a reasonable belief that it had such a purpose,

in obtaining her consumer report because it was seeking information in connection

with the collection of an account. 15 U.S.C. § 1681b(a)(3)(A). Accordingly, we

affirm as to this issue.

III.

8 Case: 18-13770 Date Filed: 05/30/2019 Page: 9 of 10

We review a district court’s decision whether to award costs to a prevailing

party for abuse of discretion. Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir.

2007). In the Northern District of Georgia, the prevailing party must file a bill of

costs within 30 days from the entry of judgment in order to recover costs,

otherwise costs will not be taxed as part of the judgment. N.D. Ga. L. R. 54.1.

An issue becomes moot, necessitating its dismissal on jurisdictional

grounds, when it is “no longer live or the parties lack a legally cognizable interest

in the outcome.” See BankWest, Inc. v. Baker, 446 F.3d 1358, 1363-64 (11th Cir.

2006) (per curiam) (quotation marks omitted). “Any decision on the merits of a

moot case or issue would be an impermissible advisory opinion.” Fla. Ass’n of

Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d

1208, 1217 (11th Cir. 2000).

None of the Defendants filed a bill of costs within 30 days of the entry of

judgment so, pursuant to the local rules, costs were not taxed as part of the

judgment and the opportunity to recover costs has passed. N.D. Ga. L. R. 54.1.

Accordingly, the issue of whether the district court abused its discretion in

awarding costs is moot. See BankWest, Inc., 446 F.3d at 1363-64. We dismiss the

appeal as to this issue.

9 Case: 18-13770 Date Filed: 05/30/2019 Page: 10 of 10

DISMISSED IN PART, AFFIRMED IN PART. 3

3 Middlebrooks’s motion to file a supplemental appendix is DENIED.