United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
this Court are Plaintiff's Motion for Summary Judgment
(Dkt. No. 14), Defendants' Response (Dkt. No. 17), and
Plaintiff's Supplemental Authority (Dkt. No. 30); and
Defendants' Motion for Summary Judgment (Dkt. No. 33) and
Plaintiff's Opposition to Defendants' Motion for
Summary Judgment (Dkt. No. 41). The District Court referred
the above motions to the undersigned Magistrate Judge for
report and recommendation pursuant to 28 U.S.C.
§636(b)(1)(A), Fed.R.Civ.P. 72, and Rule 1(c) of
Appendix C of the Local Rules.
Bradley Cousins brings this suit against Defendants Portfolio
Recovery Associates, LLC and Western Surety Company
(collectively “PRA”) under the Fair Debt
Collection Practices Act and the Texas Debt Collection Act.
Cousins alleges that PRA failed to communicate to a consumer
reporting agency that a debt was disputed when it reported
the debt. See 15 U.S.C. §1692e(8); Tex. Fin.
Code § 392.202(a).
allegedly incurred a credit card debt, but due to financial
difficulties was unable to make his payments. Sometime later,
this debt was sold to PRA. Cousins obtained a copy of his
credit report, which stated that he owed PRA $12, 086.00.
Believing this to be incorrect, Cousins-with the assistance
of the attorneys at the Community Lawyers Group-allegedly
sent a letter on April 21, 2016 to PRA disputing the debt.
This letter reads:
I am writing to you regarding the account referenced above. I
refuse to pay this debt. My monthly expenses exceed my
monthly income; as such there is no reason for you to
continue contacting me, and the amount you are reporting is
not accurate either. If my circumstances should change I will
be in touch.
No. 1-1 at 4. Cousins claims that this letter disputed the
debt. However, when he once again checked his credit report
from the Experian consumer reporting agency (CRA) in June
2016, he found that it still contained a line item from PRA
for this debt that was not marked as disputed. This, Cousins
alleges, violated the FDCPA and TDCA. Both Cousins and PRA
have moved for summary judgment.
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential
to its case and on which it will bear the burden of proof at
trial, summary judgment must be granted. Celotex,
477 U.S. at 322-23.
FDCPA was enacted:
to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not
competitively disadvantaged, and to promote consistent State