United States District Court, W.D. Texas, San Antonio Division
SADIE HACKLER, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED; Plaintiff,
TOLTECA ENTERPRISES, INC., Defendant.
ORDER ON SUMMARY JUDGMENT
RODRIGUEZ UNITED STATES DISTRICT JUDGE
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
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.
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.
Summary Judgment Standard
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
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.
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).
Fair Debt Collection Practices Act
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.”)
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