Lopez, Dan v. RS Clark & Associates, Inc

• Court: Court of Appeals of Texas
• Decided: January 14, 2014
• Docket: 05-12-00868-CV
• Status: Published

Opinion

Affirm and Opinion Filed January 14, 2014

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00868-CV

DAN LOPEZ, Appellant V. RS CLARK & ASSOCIATES, INC., Appellee

On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-07834-A

MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Lewis Opinion by Justice Francis Dan Lopez appeals the trial court’s judgment in favor of RS Clark & Associates. In

several issues, Lopez contends the trial court erred by denying his motion for summary judgment

and granting summary judgment in favor of Clark. We affirm.

Lopez leased an apartment at Hunter’s Ridge Apartments in Fort Worth in April 2006.

When he moved out of the apartment in October 2006, Hunter’s Ridge assessed Lopez a cleaning

charge which he did not pay. In June 2007, the debt was turned over to Clark for collection. At

that time, Clark sent Lopez a letter about the debt, referencing Hunter’s Ridge, but Lopez did not

respond. A representative of Clark spoke with Lopez in mid-2008. When Lopez asked what the

debt was for, the representative said it was a cleaning charge from Hunter’s Ridge. In February 2009, Lopez wrote Clark. In the letter, he said he did not “recognize this

alleged debt” but, given the small amount owed, was “offering full payment” contingent on

Clark agreeing to “fully delete this account from [Lopez’s] credit profile.” Lopez “invite[d]

good faith settlement negotiation in response to” his offer via email although he noted the terms

of any agreement were “open for very little negotiation.” He told Clark calls to his home phone

number were “inconvenient.” He then provided his cell phone number but refused consent to

call the cell number “at any time for any reason.” He also noted he was not allowed personal

communications at work. Lopez concluded the letter by suggesting Clark take him “up on this

offer, execute and abide by the enclosed settlement agreement so we can move on to bigger and

better issues.” Lopez enclosed a three-page, single-spaced document entitled “Settlement

Agreement and Release” and a copy of a money order for $52.34. Lopez sent the letter and

enclosures by certified mail to Clark’s legal counsel.

From May to September, 2009, a Clark representative called Lopez at home four times

between 10:28 a.m. and 2:15 p.m.; Lopez did not answer any of the calls. In January 2010,

Lopez sued Clark for violations of the Fair Debt Collection Practices Act, the Texas Debt

Collection Practices Act, and the Deceptive Trade Practices Act. In his pleading, Lopez alleged

Clark (1) called him at home after he had expressly told Clark to “cease all telephonic

communications” with him and (2) failed to communicate to the credit reporting agencies that

Lopez disputed the debt. Clark filed a general denial and a counterclaim for sanctions alleging

that the claims were groundless and brought in bad faith or for the purpose of harassment. Both

Lopez and Clark filed competing motions for summary judgment, although Lopez did not attach

any evidence in support of his motion. The trial court granted Clark’s motion and denied

Lopez’s motion, but declined to rule on Clark’s counterclaim. Following a bench trial, the trial

–2– court granted judgment in favor of Clark on the counterclaim and awarded attorney’s fees. This

appeal ensued.

On appeal, Lopez generally contends the trial court erred by granting Clark’s motion for

summary judgment and denying his. Specifically, he claims the February 24, 2009 certified

letter was sufficient notice to trigger the prohibitions of the debt collection practices acts and the

DTPA and that the letter was received by Clark’s legal counsel acting as Clark’s agent. Lopez

does not complain about the bench trial on Clark’s counterclaim or the award of attorney’s fees.

The summary judgment rule provides a method of summarily ending a case that involves

only a question of law and no fact issues. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W.2d 546, 548–49 (Tex. 1985). When, as here, both sides move for summary

judgment, and the trial court grants one motion and denies the other, we review the summary

judgment evidence presented by both sides and determine all questions presented. Comm’rs

Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). We review the summary judgment de novo to

determine whether a party’s right to prevail is established as a matter of law. Howard v. INA

Cnty. Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex. App.—Dallas 1996, writ denied). If we

conclude the trial court committed reversible error, we render the judgment the trial court should

have rendered. Id. at 216‒17.

To succeed in a traditional motion for summary judgment, the movant must establish

there are no genuine issues of material fact and it is entitled to judgment as a matter of law. W.

Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). For Clark to be entitled to summary

judgment, it had to disprove, as a matter of law, one of the essential elements of Lopez’s causes

of action. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).

Under the FDCPA, if a consumer notifies a debt collector in writing that the consumer (1)

refuses to pay a debt or (2) wishes the debt collector to cease further communication with the

–3– consumer, “the debt collector shall not communicate further with the consumer with respect to

[the] debt” except for certain notifications not relevant to this case. 15 U.S.C. § 1692c(c).

Section 1692e(8) prohibits debt collectors from communicating “to any person credit

information which is known or should be known to be false, including the failure to

communicate that a disputed debt is disputed.” 15 U.S.C. § 1692e(8). The TDCPA similarly

provides a debt collector may not “represent to any person other than the consumer that [the]

consumer is willfully refusing to pay a nondisputed consumer debt when the debt is in dispute

and the consumer has notified in writing the debt collector of the dispute.” TEX. FIN. CODE §

392.301(a)(3) (West 2006). And under section 392.404, a violation of chapter 392 is a deceptive

trade practice and is “actionable under” chapter 17 of the Texas Business and Commerce Code.

See id. § 392.404(a); TEX. BUS. & COM. CODE § 17.50 (West 2011). For a plaintiff to prevail

under these acts, he must establish he is a consumer, the defendant is a debt collector, and the

defendant engaged in an act or omission prohibited by the FDCPA and the TDCPA. See 15

U.S.C. §§ 1692a(3), (6), 1692c(c),1692e(8).

In his second amended petition, Lopez claimed (1) he “sent a letter to [Clark] on

February 24, 2009 requesting that [Clark] cease and desist all communications with [Lopez],” (2)

Lopez has a certified mail receipt proving Clark’s registered agent received the letter February

25, 2009, (3) after Lopez “expressly requested” Clark “cease all telephonic communications”

with him, Clark called his home phone number, and (4) Clark continued to report the debt on

Lopez’s credit report when “it was disputed by [Lopez] on February 24, 2009.”

In its motion, Clark claimed it was entitled to summary judgment because Lopez’s letter

did not inform Clark to “cease further communication” or dispute the debt and there was no

evidence the information Clark reported to the credit bureau was false. In support of its first

ground, Clark attached a copy of Lopez’s February 24, 2009 letter and Lopez’s deposition

–4– testimony. In the letter, Lopez tells Clark he is writing about the $52.34 debt to Hunter’s Ridge

Apartments. He states he does not recognize the debt but, given the small amount of the debt, is

“offering full payment in return for full deletion.” He invites “good faith settlement negotiation

in response” to his offer, although “the terms of the agreement are open for very little

negotiation.” He states calls to his home phone are “inconvenient.” He then provides his cell

phone number and states:

I DO NOT give you consent to call this number using an auto dialer, I DO NOT give you consent to manually dial this number, I DO NOT give you consent to call this number at any time for any reason. I hereby withdraw any consent you and/or the creditor may think either of you had to call this number. In addition, please be advised that I am NOT allowed personal communications at work.

Lopez concludes the letter by suggesting Clark take him up on his offer and execute and abide by

the enclosed agreement. In his deposition, Lopez testified calls to his home phone were

inconvenient because he worked nights, but he conceded he did not tell Clark that he worked

nights. He also stated there were convenient times for him to take calls at home.

Considering the express language of the letter, we conclude it did not notify Clark that

Lopez wished Clark to “cease further communication” with him. Although Lopez clearly states

he does not consent to communication via his cell or work phones, Lopez states only that calls to

his home are inconvenient. He did not withdraw consent to contact his home phone nor did he

otherwise state Clark could not contact him at home. Moreover, the letter invites further

communication regarding a settlement.

In addition, the letter does not dispute the debt and, instead, offers full payment. And in

his deposition testimony, Lopez testified what Clark told the credit reporting agency was

accurate. He said he was not claiming Clark gave incorrect information regarding his credit

report. Because Clark established as a matter of law it did not report something false to a third

party and that the February 24 letter did not instruct Clark to cease further communication with

–5– Lopez and did not dispute the debt, the burden shifted to Lopez to raise an issue of material fact.

This he failed to do.

Lopez did not present any summary judgment evidence in support of his motion or in his

response to Clark’s motion. Rather, he argued below and on appeal that the FDCPA does not

require a consumer to use exact language in forbidding communication and he should be held to

a “least sophisticated consumer” standard. Although we agree that a consumer need not use

specific or “technical” language, we reject Lopez’s claim his language was sufficient to forbid all

communication. With respect to his home phone, Lopez did not forbid calls, nor did he

withdraw consent; he said only that calls are “inconvenient.” This statement is immediately

followed by a paragraph giving his cell phone number and explicitly refusing consent to call the

cell phone as well as his work phone numbers. This establishes Lopez knew how to refuse

consent or, at a minimum, how to tell Clark to “cease further communication” with him. Lopez

also drafted and sent a three-page legal document entitled “Settlement and Agreement” and

invited further negotiations. Read in its entirety, the letter demonstrates Lopez knew how to

communicate clearly and did not forbid further communication. We reject Lopez’s argument to

the contrary.

We conclude the trial court did not err by granting summary judgment in favor of Clark

with respect to Lopez’s claims under the FDCPA or the TDCPA. Nor did the trial court err by

granting summary judgment on Lopez’s derivative DTPA claim. We overrule Lopez’s issues.

We affirm the trial court’s judgment.

/Molly Francis/ MOLLY FRANCIS 120868F.P05 JUSTICE

–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DAN LOPEZ, Appellant On Appeal from the 14th Judicial District Court, Dallas County, Texas No. 05-12-00868-CV V. Trial Court Cause No. DC-10-07834-A. Opinion delivered by Justice Francis, RS CLARK & ASSOCIATES, INC., Justices Lang-Miers and Lewis participating. Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee RS CLARK & ASSOCIATES, INC. recover its costs of this appeal from appellant DAN LOPEZ.

Judgment entered this 14th day of January, 2014.

/Molly Francis/ MOLLY FRANCIS JUSTICE

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