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Hackler v. Tolteca Enterprises, Inc.

United States District Court, W.D. Texas, San Antonio Division

December 11, 2019




         On this date, the Court considered Plaintiff Sadie Hackler's Motion for Summary Judgment on Liability (ECF No. 38). After careful consideration, the Court GRANTS summary judgment as to liability in favor of Plaintiff for the reasons stated below.


         Plaintiff Sadie Hackler leased a home in San Antonio, Texas. After Plaintiff moved out of the rental property, the landlord claimed Plaintiff caused damage to the home. The landlord alleged the cost of the repairs exceeded the amount of Plaintiff's security deposit and attempted to charge Plaintiff for the additional expenses, which Plaintiff disputed. Subsequently, the landlord turned the disputed debt over to Defendant Tolteca Enterprises, Inc. d/b/a The Phoenix Recovery Group for collection. In June 2018, Plaintiff received a letter from Defendant attempting to collect the debt allegedly owed to the landlord. The letter represented the first communication Plaintiff received from Defendant regarding collection efforts. ECF No. 38-1.

         Shortly thereafter, Plaintiff filed this lawsuit alleging that Defendant's letter failed to conform to the Fair Debt Collection Practices Act (“FDCPA”). ECF No. 1. Specifically, Plaintiff alleges the letter failed to conform to FDCPA's “in writing” requirement because it failed to notify Plaintiff of her right to make a written dispute of the debt by excluding the “in writing” language. Plaintiff also alleges the letter violated FDCPA's “amount due” requirement because the letter states a total amount due that may also include a one-time agency collection fee without clarifying the amount of the collection fee or if it is included in the total due. Defendant filed its Answer (ECF No. 6), and Plaintiff successfully moved for class certification. ECF Nos. 30, 36. Plaintiff now moves for summary judgment as to liability, asking this Court to find Defendant liable for violations of FDCPA Sections 1692g(a)(4), 1692g(a)(5), and 1692g(e)(2)(A). ECF No. 38 at 7. Defendant has failed to respond.


         I. Legal Framework

         a. Summary Judgment Standard

         The Court will grant summary judgment if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material only if its resolution would affect the outcome of the action.” Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009). Thus, a genuine issue of material fact exists 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, 248 (1986); Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010).

         The moving party bears the initial burden of informing the court of the basis for the motion and of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). Once the moving party meets this burden, the nonmoving party must “go beyond the pleadings” and designate competent summary judgment evidence “showing that there is a genuine issue for trial.” Adams, 465 F.3d at 164; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). If the nonmoving party does not respond to a motion for summary judgment, summary judgment may be entered against them if appropriate. Fields v. S. Hous., 922 F.2d 1183, 1187 (5th Cir. 1991). However, even where the nonmoving party has failed to respond, “[a] motion for summary judgment cannot be granted simply because there is no opposition.” Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). The moving party must still meet its burden or else “the court may not grant the motion, regardless of whether any response was filed.” Id. at 1279.

         The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). Mere conclusory allegations, unsubstantiated assertions, improbable inferences, unsupported speculation, and hearsay evidence (unless within a recognized exception) are not competent summary judgment evidence. Walker v. SBC Servs., Inc., 375 F.Supp.2d 524, 535 (N.D. Tex. 2005) (citing Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994); Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995)). When ruling on a motion for summary judgment, the Court must view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). 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. However, when the nonmoving party has failed “to address or respond to a fact raised by the moving party and supported by evidence, then the court may consider the fact as undisputed, ” and “[s]uch undisputed facts may form the basis for a summary judgment.” Broadcast Music, Inc. v. Bentley, Civil Action No. SA-16-CV-394-XR, 2017 WL 782932, at *2 (W.D. Tex. Feb. 28, 2017). “The court also considers ‘evidence supporting the moving party that is uncontradicted and unimpeached.'” Gordon v. Acosta Sales & Mktg., Inc., No. SA-13-CV-662-XR, 2014 WL 7339117, at *3 (W.D. Tex. Dec. 22, 2014), aff'd, 622 Fed.Appx. 426 (5th Cir. 2015) (quoting Reeves, 530 U.S. at 151).

         b. The Fair Debt Collection Practices Act

         The purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). Because “Congress clearly intended the FDCPA to have a broad remedial scope, ” the FDCPA “should therefore be construed broadly and in favor of the consumer.” Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 511 (5th Cir. 2016) (internal citations and quotations omitted). “The FDCPA is a strict liability statute, in which a single violation is sufficient to establish liability” for a debt collector. Alanis v. Nationstar Mortg. LLC, No. SA-18-CV-00138-OLG, 2018 WL 5733198, at *14 (W.D. Tex. Sep. 4, 2018), report and recommendation adopted, No. CV SA-18-CA-138-OLG, 2018 WL 6252527 (W.D. Tex. Nov. 20, 2018); see also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238 (5th Cir. 1997) (“A single violation of any provision of the Act is sufficient to establish civil liability under the FDCPA.”)

         To state an FDCPA claim, a plaintiff must show: “(1) that he was the object of collection activity arising from a consumer debt; (2) that Defendant is a debt collector as defined by the FDCPA; and (3) that Defendant engaged in an act or omission prohibited by the FDCPA.” Douglas v. Select Portfolio Servicing, Inc., No. CIV.A. 4:14-1329, 2015 WL 1064623, at *4 (S.D. Tex. Mar. 11, 2015). As relevant here, the FDCPA imposes several requirements for debt collectors when giving notice of debt to a consumer. See 15 U.S.C. § 1692g(a). The FDCPA also prohibits a debt collector from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. When evaluating debt communication for potential deception, the “unsophisticated” or “least sophisticated” consumer standard is applied. Mahmoud v. De Moss Owners Ass'n,865 F.3d 322, 330 (5th Cir. 2017) (citing Taylor, 103 F.3d at 1236). This requires the Court to “assume that the plaintiff-debtor is neither shrewd nor experienced in dealing with ...

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