United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
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.
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).
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).
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
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). “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). “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). 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
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).
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).
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).
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