United States District Court, N.D. Texas, Dallas Division
DEANNA K. ORTIZ, Plaintiff,
ENHANCED RECOVERY COMPANY, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
A Fitzwater Senior Judge.
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.
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.
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.
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.
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.
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.
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
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, ...