The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ISABEL HERNANDEZ,
Plaintiff,
v. No: 8:20-cv-873-WFJ-TGW
OLIPHANT FINANCIAL, LLC, and
ACCELERATED INVENTORY
MANAGEMENT, LLC
Defendants.
__________________________________/
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants’ Motion for Summary
Judgment. Dkt. 41. Defendant Accelerated Inventory Management (“AIM”) is the
purchaser of consumer debt incurred by Plaintiff. Dkt. 26 ¶¶ 15–24. Defendant
Oliphant Financial (“Oliphant”) is the collector for AIM. Id. In her Amended
Complaint, Plaintiff brings several causes of action under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”) and one claim under the
Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.72, et seq.
(“FCCPA”). Id. at ¶ 1.
Defendants seek summary judgment on all counts of the Amended
Complaint. Dkt. 41. Plaintiff filed a response to the summary judgment motion,
and Defendants replied. Dkts. 45 & 47. After considering the filings and hearing
oral arguments on July 26, 2021, the Court grants Defendants’ Motion for
Summary Judgment.
BACKGROUND
In her Amended Complaint, Plaintiff alleges that the subject debt was
assigned or otherwise transferred to Defendants for collection. Dkt. 26 ¶¶ 27–33.
She states that she received a letter regarding collection of a debt. Id. at ¶ 31. This
letter is attached here as an Appendix. Plaintiff testified that, upon receiving the
letter, she did not recognize the names of the original creditor, WebBank, or the
current creditor and collector, AIM and Oliphant respectively. Dkt. 42-3 at 138.
Plaintiff stated that she did not recall if she read the text of the letter following the
identification of the creditors and collector. Id. However, Plaintiff later testified
that she did not read the text of the letter before providing it to her lawyer. Id. at
140.
Plaintiff alleges in the Amended Complaint that the letter she received
contains false statements because she does not owe money to AIM. Plaintiff states,
“[t]he gravamen of the [Amended] Complaint alleges that Defendants violated the
provisions of the FDCPA by identifying [AIM] as Plaintiff’s creditor when, in fact,
Plaintiff owes no monies of any kind to such entity.” Dkt. 45 at 2.
Plaintiff also alleges in the Amended Complaint that she was harassingly
called multiple times by the Defendants attempting to collect this debt, Dkt. 26 ¶¶
36–47, although none of the counts in the Amended Complaint seek recovery for
these phone calls. In fact, each count specifically excludes the allegations of phone
calling. Id. at ¶¶ 52, 62, 86, 102, 134.
There is quite a bit Plaintiff does not recall. Although she recalls receiving
the loaned money and remembers spending that money, she does not recall signing
the loan documents. Dkt. 42-3 at 143. Additionally, while she recalls stopping
payment on the loan, she does not recall what amount she owed when she
discontinued her payments. Id. at 144. While Plaintiff also does not recall
WebBank being the original creditor, she does recall obtaining the loan through
Lending Club, which was WebBank’s processor and the first assignee of the
WebBank loan. Id. at 143–44.
Notwithstanding Plaintiff’s testimony, her pleadings state that she borrowed
$10,000 from WebBank, which she used for personal expenditures. Dkt. 45 at 5.
Plaintiff testified that she has “no idea” whether the lending documents permit the
original creditor to sell her loan debt to others. Dkt. 42-3 at 151. Concerning the
harassing phone calls, Plaintiff does not recall when these phone calls occurred
during the past four years. Id. at 140.
The Amended Complaint states that Plaintiff did not owe to AIM the
balance shown in the letter because AIM never extended or offered credit to
Plaintiff. Dkt. 26 ¶¶ 77–84, 123–30. Plaintiff thereby asserts that the letter is false
and misleading because AIM is a stranger to Plaintiff and Plaintiff has never
contracted with or done any business with AIM. Id. at ¶¶ 93-99.
Each of the five counts in the Amended Complaint is asserted against both
Defendants. As to Count One, the Amended Complaint states that the letter falsely
asserts Plaintiff owes $9,706.72 when in fact she never owed any money to AIM or
Oliphant. Plaintiff contends that this is a falsehood in violation of section
1692g(a)(1) of the FDCPA.1 Dkt. 26 ¶¶ 52–61.
In Count Two of the Amended Complaint, Plaintiff asserts that the debt
alleged in the letter is a false representation or deceptive means to collect the same,
in violation of sections 1692e, e(2)(A), and e(10) of the FDCPA.
Count Three of the Amended Complaint asserts a violation of section
1692g(a)(2) of the FDCPA. Plaintiff notes that this provision requires the creditor
to be accurately listed on a written notice, and she asserts that AIM was not “the
name of the creditor to whom the debt is owed,” as this statute requires. Dkt. 26 ¶¶
89–100. Plaintiff states that the statute was thus violated because “Plaintiff never
1 This provision requires a creditor to provide written notice of the debt amount within five days
of the initial communication concerning collection. The amount must be accurately stated.
did any business with” AIM and “never entered into any contract with” AIM. Id.
at ¶¶ 95–101.
Count Four asserts another FDCPA violation. According to this count,
which serves as somewhat of a “catch-all,” the letter violated section 1692e(2)(A)
of the FDCPA because that provision prohibits the false representation of the
character, amount, or legal status of a debt. Id. at ¶¶ 102-115. Plaintiff alleges that
the letter falsely claimed AIM was a creditor because “Plaintiff did not owe a debt
to” AIM. Id. Plaintiff further contends that AIM “never extended credit to
Plaintiff” and that “Plaintiff was never involved in any transaction with” AIM. Id.
at ¶¶ 117–18.
Finally, Count Five of the Amended Complaint asserts similar violations
under the FCCPA, Fla. Stat. § 559.72(9). This Florida statute prohibits a debt
collector from attempting to enforce a debt when the collector knows that the debt
is not legitimate.
Although the Amended Complaint maintains that the Plaintiff was harassed
by Defendants’ phone calls, these allegations are not found within any specific
count. The paragraphs describing the phone calls are excepted and not incorporated
into any of the counts by Plaintiff.
LEGAL STANDARD
Summary judgment is appropriate if all the pleadings, discovery, affidavits, and
disclosure materials on file show that there is no genuine disputed issue of material
fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a),
(c). The plain language of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against any party who fails to make a
showing sufficient to prove the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
Summary judgment is inappropriate “[i]f a reasonable fact finder evaluating
the evidence could draw more than one inference from the facts, and if that
inference introduces a genuine issue of material fact[.]” Allen v. Bd. of Public Educ.
for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007). An issue of fact is “material” if
it might affect the outcome of the case under the governing law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the record, viewed
as a whole, could lead a reasonable fact finder to return a verdict for the non-
movant. Id.
In considering a motion for summary judgment, the record must be
construed in the light most favorable to the non-movant; all reasonable inferences
are drawn in her favor, and her evidence must be believed. Allen, 495 F.3d at 1315;
see also Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018). But “the
non-moving party cannot merely rest upon his bare assertions, conclusory
allegations, surmises or conjectures.” Celotex, 477 U.S. at 322–23 (1986). When
the moving party demonstrates an absence of evidence on a dispositive issue for
which the nonmoving party bears the burden of proof at trial, the nonmoving
party must then “go beyond the pleadings and by [its] own affidavits, or by the
depositions, answers to interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.” Id. at 324–25.
ANALYSIS
Plaintiff’s claims boil down to this: because Plaintiff did not recognize AIM
or Oliphant as entities with which she had previously conducted business, she does
not owe them any money. According to Plaintiff, this makes the letter she received
false and actionable under the FDCPA and FCCPA. Dkt. 42-3 at 144–45, 149.
The Court holds that this theory is specious, and although Plaintiff may not
have known any better, her counsel certainly did. On this record, it is an
uncontested fact that the letter attached here as an Appendix, which forms the basis
of each count of the Amended Complaint, is entirely true. The letter is not false or
misleading under either the FDCPA or FCCPA.
Although Plaintiff indeed never conducted business with creditor AIM, that
fact is irrelevant because the letter does not make that claim. The letter states
plainly that AIM is the purchaser and new owner of the original WebBank debt.
Plaintiff admits WebBank was the originator of the debt. Dkt. 26 ¶ 19; Dkt. 45 at 5.
She also admits that she read the original note and borrower agreement when
signing them, Dkt. 42-3 at 99, 101, and these documents reflected WebBank as the
originator and stated that the originator or its servicer could further assign the debt.
Dkt. 42-2 at 33, 39.
At her deposition and in her filings, Plaintiff is unable to establish any facts
in the letter as false. She admitted that she was aware that the letter was in
reference to the amounts she originally owed to WebBank. Dkt. 42-3 at 100.
Plaintiff also admitted that she stopped paying off the WebBank loan and was in
default on the debt at the time AIM became the assignee creditor. Dkt. 26 at 3-4;
Dkt. 42-3 at 99. That Plaintiff did not recognize the assignee creditor AIM and
conducted no business with AIM says nothing about the accuracy of the letter. This
very point has been recognized by other courts in similar unsuccessful FDCPA
claims brought by Plaintiff’s lawyer. See Johnson v. Cawley & Bergmann, LLC,
2021 U.S. Dist. LEXIS 68855, at *11 (E.D.N.Y. Mar. 3, 2021); Greifman v.
Cawley & Bergmann, LLC, 2019 WL 1533292 (S.D.N.Y. Apr. 9, 2019).
Based on this uncontested record, the letter is accurate on its face. The letter
lists the unpaid loan, which was assignable by contract with no notice provision, as
well as the current and former creditors. Dkt. 42 ¶¶ 9–12. It accurately describes
AIM’s role and Oliphant’s role. Under the “least sophisticated consumer” standard,
the letter is clear, plain, and understandable. See LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1193 (11th Cir. 2010).
Plaintiff attempts to challenge the accuracy of the letter by arguing that
Defendants have not, under New York pleading rules, proven the full chain of
custody or rightful ownership of the purchased debt. In Plaintiff’s words, “the
evidence upon [which] Defendants rely is insufficient as a matter of New York law
to establish [AIM]’s putative ownership of any debt once owed by Plaintiff to
WebBank.” Dkt. 45 at 3. Plaintiff alleges that AIM was the transferee owner of
the debt, Dkt. 26 at 3–4, but to avoid summary judgment, she argues that AIM
cannot sufficiently prove it owns the debt to be able to collect upon it in a New
York collection action. In her memorandum, Plaintiff offers several pages
outlining the New York pleading rules for assignee creditors of purchased debt that
sue in New York state courts. Dkt. 45 at 12–15.
Although Plaintiff is a New York resident, it is unclear why Plaintiff asserts
that New York law has any bearing, as the original note and borrower agreement
are controlled by Utah law.2 In any event, the New York chain of custody rules for
assignee creditors bringing collection actions are not relevant. Plaintiff’s counsel
2 Dkt. 42-2 at 34, 39. Plaintiff stated that she read the original note and borrower agreement
before signing it. Dkt. 42-3 at 99, 101.
has repeatedly made this argument in other FDCPA cases, and other courts have
tartly rejected it. See, e.g., Parker v. Mandarich Law Grp., LLP, 2021 WL
2351177, at *38–39 n.6 (E.D.N.Y. June 9, 2021) (“This court has previously
rejected substantially similar arguments in a case involving similar claims (and the
same plaintiff’s firm), see Danese v. Credit Control, LLC et. al., 21-cv-435”);
Johnson, 2021 U.S. Dist. LEXIS 68855 at *9–10 (“There is no such burden of
proof required in FDCPA cases, and the New York State cases Plaintiff cites ‘are
not FDCPA cases; they are debt collection cases[.]’ Plaintiff’s counsel
unsuccessfully has made the same argument in previous FDCPA cases.”);
Marcario v. Midland Credit Mgmt., Inc., 2017 WL 4792238, at *3 (E.D.N.Y. Oct.
3, 2017) (“The Court notes that the Plaintiff cites an incorrect standard of proof in
his opposition memorandum. The New York State cases he cites are not FDCPA
cases; they are debt collection cases, where the procedural posture of the parties
requires a different standard. This is not the first time a court in this Circuit has
noted Plaintiff’s counsel’s improper citations in this context [.]”); Zambrana v.
Pressler & Pressler, LLP, 2016 WL 7046820, at *6 (S.D.N.Y. Dec. 2, 2016)
(“Plaintiff, pointing to New York debt collection cases, contends that Defendants
have not presented sufficient proof to establish a complete chain of title. This,
however, is not a debt collection case; it is an FDCPA case[.] The ‘special proof’
required by New York law to establish [assignee debt] does not apply here[.]”).
Plaintiff’s rejected theory does not improve by repetition. The test is not
whether New York collection actions on assignee debt require special pleading
hurdles. The test is whether there are contested issues of fact related to the
FDCPA.
Plaintiff’s challenge as to AIM’s ownership of the debt fails factually on this
record. Although not its burden here, AIM has shown on this record that it rightly
owns this debt, and Plaintiff offers no facts whatsoever to contest that. See Dkt. 42-
2 at 2–6, 67. This includes a competent declaration by a qualified custodian
outlining the chain of custody of the debt leading to AIM’s ownership, as well as
detailed exhibits. Id. Moreover, Plaintiff’s counsel stated clearly at the hearing on
this motion that there are “no facts to [his] knowledge” in this record to contradict
Defendants’ evidence set forth as to the chain of title on this loan and AIM’s
ownership of the debt. Tr. at 17-18.
Plaintiff herself scheduled this precise debt on a sworn Chapter 13
bankruptcy schedule. Dkt. 42-3 at 227. She listed the amount of the debt as $9,500,
which was slightly less than the debt of $9,706.72 shown on AIM’s books. Dkt.
42-3 at 56; Dkt. 42-2 at 6. Plaintiff does not seek a remedy due to any discrepancy
in amount. Dkt. 42-3 at 144. On her bankruptcy schedule, Plaintiff listed the
creditor as WebBank’s processor, Lending Club, which was the immediate
predecessor in title to AIM. The bankruptcy case, which had ten unsecured
consumer-debt creditors, was filed after Oliphant sent the subject letter. Oliphant
did not pursue collection after the bankruptcy filing. There is no evidence or
allegation that Defendants attempted post-petition collection activity, and Plaintiff
has made no claims in that regard. The loan was discharged in bankruptcy. Case
No. 1-19-47809-cc (Bkr. E.D.N.Y. 2020).
Plaintiff made no effort to disprove the amount of the loan or ownership
beyond saying that Defendants never validated it as New York pleadings rules
would require in a suit to collect assignee debt. Although she testified that she
made an oral request for validation of the debt during one phone call, Plaintiff
placed nothing in writing, and section 1692f(a)(4) of the FDCPA requires a written
request for validation.
Finally, concerning the allegations of the harassing phone calls, as noted
above, those calls are alleged in the fact section of the Amended Complaint but are
expressly excluded from and not incorporated into the individual counts seeking
relief. Plaintiff does not base her five counts for relief on phone calls. That ends the
inquiry. Moreover, Defendants stated in their moving papers that, for several
reasons, the phone call allegations do not prevent summary judgment on their
behalf. Plaintiff did not argue to the contrary in her Response, thereby waiving the
issue. Dkt. 45. Even so, the harassing phone call allegations appear to have only
been placed in Plaintiff’s Amended Complaint, filed ten months after the original
complaint, in order to bolster standing and provide concrete injury-in-fact.3 These
allegations were not presented in the original complaint, and Defendants’ Answer
to the original complaint set forth an affirmative defense of standing.
Even if they had been included in the counts seeking relief under the
FDCPA, the allegations concerning the phone calls would be barred by the
FDCPA’s one-year statute of limitations. Cooley v. Ocwen Loan Servicing, LLC,
729 F. App’x 677, 681 (11th Cir. 2018). The record is clear that the period in
which Defendants were seeking to collect the debt was December 27, 2019, to
January 19, 2020. Plaintiff first brought suit regarding the phone calls over one
year later.
As a factual matter, Defendants are unequivocal that the harassing phone
calls never happened. Dkt. 42-2 at 7. Plaintiff testified she only spoke to a caller
once, whom she identified as “Accelerator,” not the loan collector Oliphant. Dkt.
42-3 at 140. She testified that she told the caller she did not know what they were
talking about and requested that more information be sent to her by mail. Id. at
141. Plaintiff could not remember if that call took place within the last four years
or whether the call was in reference to the subject loan, nor could she recall the
3 The original complaint, in part, asserted standing due to “informational injury.” Defendants
sent a letter to Plaintiff’s counsel criticizing the lack of concrete injury in the original complaint.
Dkt. 42-3 at 7. Plaintiff then filed her Amended Complaint containing allegations of harassing
phone calls. Plaintiff testified that she did not recall when she told her lawyer about these phone
calls. Id. at 141–42.
phone number, area code, or name of the caller. Id. at 140–41. Moreover, Plaintiff
testified that she did not receive any voicemails identifying the entity that she
alleges was repeatedly calling, and she testified that she never called back the
number. Id. Her testimony about these calls is insufficiently definite to support a
cause of action, even if one were alleged. See id.
Defendants requested that Plaintiff produce her phone call records from the
relevant timeframe, but Plaintiff declined to do so and testified that she did not
intend to obtain those records. Id. at 146. This inaction may be why her counsel did
not cite the phone calls as supporting the causes of action, nor allege in Plaintiff’s
Response, Dkt. 45, that the phone calls prevent the entry of summary judgment.
In sum, there is no contested issue of fact in this FDCPA and FCCPA case
preventing judgment for Defendants. The motion is granted.
CONCLUSION
The Court GRANTS Defendants’ Motion for Summary Judgment, Dkt. 41.
The clerk is directed enter judgment accordingly and close the case.
DONE AND ORDERED at Tampa, Florida, on August 13, 2021.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record