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Ortiz v. Enhanced Recovery Company LLC

United States District Court, N.D. Texas, Dallas Division

June 6, 2019

DEANNA K. ORTIZ, Plaintiff,
v.
ENHANCED RECOVERY COMPANY, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          Sidney A Fitzwater Senior Judge.

         Defendant Enhanced Recovery Company, LLC (“ERC”) moves for summary judgment in this action arising from two debt collection letters sent to plaintiff Deanna K. Ortiz (“Ortiz”). The dispositive question presented is whether, by sending two letters-each of which contained an identical 30-day validation notice-ERC made a false, deceptive, or misleading representation within the meaning of either the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), or the Texas Debt Collection Practices Act, Tex. Fin. Code Ann. §§ 392.001-.404 (West 2016 & Supp. 2018) (“TDCPA”). For the following reasons, the court grants ERC's motion for summary judgment and dismisses this action by judgment filed today.

         I

         The material facts of this case are not in dispute. In October 2017 a subject account bearing Ortiz's name and identifying information was placed with ERC for collection by its customer, AT&T. Shortly thereafter, ERC began collection efforts on the account by sending letters and attempting to reach Ortiz by phone.

         Two of the letters that ERC sent to Ortiz in connection with its collection efforts are the subject of the instant lawsuit. The first letter, sent by ERC to Ortiz in October 2017 (the “October 2017 letter”), “provided the language required under § 1692g of the FDCPA, including the portion: ‘Unless you dispute the validity of the debt, or any portion thereof, within thirty (30) days after your receipt of this notice, the debt will be assumed valid by us.'” Compl. ¶ 12. The second letter, sent by ERC to Ortiz in February 2018 (the “February 2018 letter”), was “substantially similar” to the October 2017 letter and included an identical § 1692g validation notice. Id. at ¶ 15. The February 2018 letter was the last collection effort that ERC made on the subject account.

         Ortiz sued ERC in May 2018, alleging that ERC violated the FDCPA and the TDCPA as a result of the “conflicting information evident in both letters.” Compl. ¶ 17. ERC now seeks summary judgment on Ortiz's claims. Ortiz opposes the motion.

         II

         ERC is moving for summary judgment on claims for which Ortiz will have the burden of proof at trial. Because Ortiz will have the burden of proof, ERC's burden at the summary judgment stage is to point the court to the absence of evidence of any essential element of Ortiz's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once it does so, Ortiz must go beyond her pleadings and designate specific facts demonstrating that there is a genuine issue for trial. See Id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict in Ortiz's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Ortiz's failure to produce proof as to any essential element of the claim renders all other facts immaterial. TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory where Ortiz fails to meet this burden. Little, 37 F.3d at 1076.

         III

         The court turns first to the question whether ERC, by sending two debt collection letters with 30-day validation notices, made a false, deceptive, or misleading representation that is actionable under the FDCPA or the TDCPA.

         A

         “The purpose of the [FDCPA] is 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 action to protect consumers against debt collection abuses.'” McMurray v. ProCollect, Inc., 687 F.3d 665, 668 (5th Cir. 2012) (quoting 15 U.S.C. § 1692(e)).

Debt collectors are required, within five days of the initial communication regarding a debt, to provide consumers with a written notice that contains this information: (1) “the amount of the debt”; (2) “the name of the creditor to whom the debt is owed”; (3) a statement that unless the consumer “disputes the validity of the debt” within 30 days, the debt collector will assume the debt is valid; (4) a statement that if the consumer notifies the collector that the consumer is disputing the debt in writing within the 30 day period, “the debt collector will obtain verification of the debt [from the creditor] . . . and a copy of [the] verification . . . will be mailed to the consumer”; and (5) “a statement that, upon the consumer's written request, ” the debt collector will give the consumer “the name and address of the original creditor, if different from the current creditor.”

Id. (quoting 15 U.S.C. § 1692g(a)). “This required notice is often referred to as the ‘validation notice.'” Koesler v. Beneficial Fin. I, Inc., 267 F.Supp.3d 873, 884 (W.D. Tex. 2016) (quoting Garcia-Contreras v. Brock & Scott, ...


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