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Hsu v. Enhanced Recovery Corporation, LLC

United States District Court, W.D. Texas, Austin Division

January 5, 2018

JENNIFER HSU, Plaintiff,
v.
ENHANCED RECOVER COMPANY, LLC, and PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court are Plaintiff's Partial Motion for Summary Judgment, (Dkt. 15), and Defendants' Cross Motion for Final Summary Judgment, (Dkt. 26). Having considered the parties' arguments, the factual record, and the relevant law, the Court grants Defendants' motion.

         I. BACKGROUND

         Plaintiff Jennifer Hsu filed this action against Defendants Enhanced Recovery Company, LLC, (“ERC”) and Philadelphia Indemnity Insurance Company in a state district court on January 16, 2016. (Pl.'s Pet., Dkt. 9-2). Plaintiff had incurred consumer debt that she was unable to repay; the debt was later assigned or transferred to ERC, a debt collector. (Id. ¶¶ 8-9).

         Plaintiff's case concerns two collections letters that ERC sent to Plaintiff: one on September 16, 2016, and a second on October 25, 2016. (Collection letters, Dkt. 15-1, at 3-6). The letters included the name of the original creditor, an account number, and a balance due. (Id.). However, instead of identifying itself as “Enhanced Recovery Company, LLC, ” ERC instead identified itself only as “ERC.” (Id.). Plaintiff's position is that ERC's use of “ERC” to identify itself in its letters violates both the Texas Debt Collection Act, Tex. Fin. Code Ch. 392 (“TDCA”), and the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). (Dkt. 9-2, ¶¶ 19-25).

         Plaintiff is a natural person who was obligated to pay a debt to T-Mobile, USA for the use of a personal cell phone. (Hsu Decl., Dkt. 15-1, at 2). ERC is a debt collection company to whom T-Mobile assigned Plaintiff's debt. (Collection letters, Dkt. 15-1, at 3-6; Defs.' Mot. Summ. J., Dkt. 26, at 2). “ERC” appears in large, bold type in a logo at the top-left corner of each letter. (Collection letters, Dkt. 15-1, at 3-6). Each letter refers to ERC as “ERC” in several places, including an address line, (id. (directing the recipient to “[s]end correspondence to: ERC, P.O. Box 57610, Jacksonville, FL 32241)), and the return address block, (id. (listing as the return address “ERC, P.O. Box 23870, Jacksonville, FL 32241-3870)). Each letter states that the recipient can “manage [his or her] account online at www.payerc.com.” (Id.). Each letter provides a toll-free phone number for the recipient to call. (Id.). Neither letter refers to “Enhanced Recovery Company, LLC”; ERC is identified only as “ERC.” (Id.).[1]

         The evidence establishes that ERC is a limited liability corporation incorporated in Delaware as “Enhanced Recovery Company, LLC.” (Certificate of Conversion, Dkt. 15-1, at 14). “ERC” is registered as a fictitious name for Enhanced Recovery Company, LLC with the Florida Secretary of State. (Fictitious Name Detail, Dkt. 22-1, at 6-7).[2] “ERC” is a d/b/a name for Enhanced Recovery Company, LLC registered with the Florida Office of Financial Regulation. (License Search Results Detail, Dkt. 22-1, at 9).[3] “ERC” is a registered service mark owned by ERC on file with the United States Patent and Trademark Office (“USPTO”). (USPTO certificate, Dkt. 22-1, at 11).[4] ERC's senior vice president of compliance attests that ERC “has been using the trade name ERC in connection with providing debt collection services since the year 1999 . . . [and] has consistently and regularly conducted business using the acronym ‘ERC' during that time.” (Davis Decl., Dkt. 16-1, at 2). In ERC's bond registration file with the Texas Secretary of State, ERC lists “ERC” as a d/b/a name. (Debt Collector Search Result, Dkt. 16-1, at 13).[5]

         Meanwhile, Plaintiff points out that ERC has not registered “ERC” as an assumed name with the Texas Secretary of State; in fact, another company-ERC Environmental & Construction Services, Inc.-has already a registered “ERC” as an assumed name in Texas. (Business Organizations Inquiry, Dkt. 15-1, at 19). Moreover, a different corporation has registered “ERC, Inc.” as its legal name with the Texas Secretary of State. (Texas Secretary of State entity search results, Dkt. 15-1, at 21). Plaintiff also produces evidence that at the time ERC sent its collection letters to Plaintiff, its bond registration file with the Texas Secretary of State did not actually list “ERC” as a d/b/a name for ERC. (Debt Collector Search Results, Dkt. 23-1, at 40-42).[6]

         Plaintiff asks the Court to grant summary judgment against ERC in favor of her FDCPA claim. (Pl.'s Mot. Part. Summ. J., Dkt. 15, at 7). Meanwhile, Defendants ask the Court to grant summary judgment against Plaintiff on all of Plaintiff's claims. (Dkt. 26, at 20).

         II. LEGAL STANDARD

         Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact issue is ‘material' if its resolution could affect the outcome of the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

         The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he moving party may [also] meet its burden by simply pointing to an absence of evidence to support the nonmoving party's case.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544 (5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000). The court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).

         III. DISCUSSION

         A. ...


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