Dressler v. U.S. Department of Education

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SANDRA K. DRESSLER,

Plaintiff,

v. Case No: 2:18-cv-311-JES-MRM

FLORIDA DEPARTMENT OF

EDUCATION, NAVIENT

SOLUTIONS, INC., and

EDUCATION CREDIT MANAGEMENT

CORPORATION,

Defendants.

OPINION AND ORDER

This matter comes before the Court on defendant Florida

Department of Education’s Motion for Summary Judgment (Doc. #178)

filed on January 7, 2022, and plaintiff’s Opposition (Doc.#184)

filed on January 25, 2022. Also before the Court is defendant

Education Credit Management Corporation’s Motion for Summary

Judgment (Doc. #180) and plaintiff’s Opposition (Doc. #185) filed

on January 25, 2022. Summary judgment Notices (Docs. #179, #181)

were provided to the parties as to each motion, which included

special information for a pro se party. For the reasons set forth

below, the motions are granted.

I.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine dispute as to any material

fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”

if it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004) (quoting Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if

reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)

(finding summary judgment “may be inappropriate even where the

parties agree on the basic facts, but disagree about the factual

inferences that should be drawn from these facts”)). “If 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, then the court should not grant

summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).

“Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys and will, therefore, be liberally

construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998); Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).

When a motion for summary judgment has been

made properly, the nonmoving party may not

rely solely on the pleadings, but by

affidavits, depositions, answers to

interrogatories, and admissions must show that

there are specific facts demonstrating that

there is a genuine issue for trial. Although

we must view factual inferences favorably

toward the nonmoving party and pro se

complaints are entitled to a liberal

interpretation by the courts, we hold that a

pro se litigant does not escape the essential

burden under summary judgment standards of

establishing that there is a genuine issue as

to a fact material to his case in order to

avert summary judgment.

Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990) (citation

omitted).

II.

Plaintiff’s Third Amended Complaint (Doc. #88) is the

operative pleading, and the Florida Department of Education (FDE)

and the Education Credit Management Corporation (ECMC) are the two

remaining defendants. As the result of a July 22, 2021, Opinion

and Order (Doc. #171), only Count 7 and Count 8 remain against the

FDE and only Count 2 remains against the ECMC. Both defendants

now move for summary judgment as to their respective counts.

A. Florida Department of Education

The Third Amended Complaint alleges that the FDE violated the

Telephone Consumer Protection Act (TCPA) by calling plaintiff

Sandra Dressler (plaintiff or Dressler) on her cellular phone

without her permission (Count 7) and by using an automated

telephone dialing system (robocalls) to do so (Count 8). (Doc.

#88, pp. 20-21.) The FDE admits the robocalls were made, but

asserts it was exempt from the TCPA. The exemption arose, the FDE

asserts, because FDE was involved in the collection of debts owed

to or guaranteed by the federal government when it placed the

robocalls to plaintiff. During the time period in which the calls

were made, the FDE argues, such robocalls were statutorily exempt

from the application of the TCPA. (Doc. #178, p. 4.)

The Court previously denied FDE’s motion for judgment on the

pleadings which raised the same contention. The Court stated:

“Assuming that Florida DOE is collecting a governmental debt based

1

on its status as a government agency, Barr would prevent plaintiff

1

Barr v. Am. Ass'n of Pol. Consultants, Inc., 140 S. Ct.

2335, 2353–54 (2020).

with proceeding with the case. However, without any evidence that

Florida DOE was collecting debts owed to or guaranteed by the

government, the motion cannot be granted.” (Doc. #171, p. 21.)

The FDE asserts that its summary judgment motion presents such

evidence. Plaintiff responds that material issues of disputed

facts remain.

(1) Material Facts In Record

The relevant undisputed evidence in the record establishes

the following:

Plaintiff was a student at Southwest Florida College, n/k/a

Southern Technical Institute, LLC d/b/a Southern Technical

College, from approximately May 2007 until approximately March

2011. Plaintiff applied for, and received, numerous student loans

to pay for her education and related expenses at the college. The

two loans relevant to this case are:

•

Loan #15, a federal Stafford unsubsidized loan for

$3,838.00, which was disbursed in three payments to

Southern Technical College.

•

Loan #16, a federal Stafford subsidized loan for $5,500,

which was disbursed in three payments to Southern

Technical College.

The lender for both of these Stafford loans was Navient Solutions,

formerly known as Sallie Mae. Plaintiff graduated with a degree

in 2011, but allegedly became delinquent in paying her student

loan debts.

The FDE outlined its status and the relevant loan collection

process, without factual contradiction, as follows: The FDE serves

as a guarantor for the Federal Family Education Loan Program

(FFELP). FDE is a student loan guaranty agency which administers

the FFELP through an agreement with the U.S. Department of

Education (USED). When a borrower defaults on a FFELP loan

guaranteed by the USED’s Office of Student Financial Assistance

(OSFA), the lender files a claim. After the claim is paid to the

lender and reinsurance is received from USED, OSFA begins federally

regulated collection activities on the defaulted loan(s). OSFA is

required by federal regulations to attempt collection of defaulted

student loans and to observe due diligence, as outlined in the

federal regulations and Florida statutes. When a student loan

borrower does not pay the lender, and fails to cure the

delinquency, the FDE, as guarantor, purchases the loan from the

lender as a default claim. Once notified by the lender that a

student loan borrower is delinquent, the FDE sends correspondence

and makes “default aversion” telephone calls seeking a payment

2

plan from the former student.

2

See also Bennett v. Premiere Credit of N. Am., LLC, 504 F.

App’x 872, 876 (11th Cir. 2013) for a summary of how the process

works.

Dressler was alleged to have defaulted by not paying loans

#15 or #16. The FDE, as the guarantor of the two Stafford loans,

became the holder of both loans. The FDE notified plaintiff of

her delinquent status for the loans, but Dressler disputed the

claim in a July 1, 2017, letter. In a responsive July 12, 2017,

letter, the FDE notified plaintiff that it had guaranteed sixteen

(16) FFELP Stafford loans under her name and social security

number. Fourteen loans were transferred to the USED, but two loans

remained with the lender, Navient Solutions, who reported that

plaintiff was delinquent in her payments. (Doc. #178-2, p. 109.)

The FDE made default diversion robocalls to Dressler from August

10, 2017, through September 12, 2017, to collect the amount due on

the Stafford student loans.

(2) Government Debt Collector Exemption

The federal statute which contains the prohibition against

robocalls and the exemption at issue provides:

It shall be unlawful for any person within the

United States, or any person outside the

United States if the recipient is within the

United States--

(A) to make any call (other than a call made

for emergency purposes or made with the

prior express consent of the called

party) using any automatic telephone

dialing system or an artificial or

prerecorded voice—

. . .

(iii) to any telephone number assigned to a

paging service, cellular telephone service,

specialized mobile radio service, or other

radio common carrier service, or any service

for which the called party is charged for the

call, unless such call is made solely to

collect a debt owed to or guaranteed by the

United States;

47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). “Under §

227(b)(1)(A)(iii), the legality of a robocall turns on whether it

is ‘made solely to collect a debt owed to or guaranteed by the

United States.’” Barr v. Am. Ass'n of Political Consultants, Inc.,

140 S. Ct. 2335, 2346 (2020). In Barr, the Supreme Court

invalidated the government-debt exception on First Amendment

grounds and severed that exemption from the remainder of the

statute. Id. at 2349. The Supreme Court stated in a footnote:

[A]lthough our decision means the end of the

government-debt exception, no one should be

penalized or held liable for making robocalls

to collect government debt after the effective

date of the 2015 government-debt exception and

before the entry of final judgment by the

District Court on remand in this case, or such

date that the lower courts determine is

appropriate. See Reply Brief 24. On the other

side of the ledger, our decision today does

not negate the liability of parties who made

robocalls covered by the robocall

restriction.”

Id. at 2355, n.12.

(3) Summary Judgment Resolution

The FDE seeks summary judgment on the basis that, while it

made the robocalls at issue, the calls were made solely to collect

a debt owed to or guaranteed by the United States. As such, the

FDE argues that the TCPA exemption applied to it, and there can be

no liability because the calls were made during the time period

when such calls were legal.

Plaintiff notes that the Court denied a similar contention

when it denied the motion for judgment on the pleadings as to these

counts. Plaintiff states that FDE “presents a material fact in

controversy as to whether it is exempt from the TCPA statute,”

“leaving several material facts in dispute” which bars summary

judgment. (Doc. #184, p. 3.) Plaintiff does not, however, point

to any evidence which supports her position that there are material

disputed facts which preclude summary judgment.

The Court finds that the undisputed facts establish that:

(1) the two loans at issue were Federal Stafford Loans; (2) both

loans were guaranteed by the United States; (3) the FDE was tasked

with collecting the loans; (3) the FDE made the robocalls to

plaintiff between August 10, 2017 and September 12, 2017; (4) the

robocalls were made solely to collect the debt due on the Stafford

loans from plaintiff; and (5) pursuant to Barr, there is no

liability for such calls made for such purposes in that time

period. The FDE has established that it has no liability for the

robocalls alleged in Counts 7 and 8. Summary judgment will be

granted on Counts 7 and 8 in favor of FDE.

B. Education Credit Management Corporation

The only remaining count against ECMC is Count 2 of the Third

Amended Complaint. The viable portion of Count 2 alleges that

ECMC violated the Fair Credit Reporting Act, 15 U.S.C. § 1681s-

2(b), by failing to conduct a meaningful investigation of

Dressler's disputed debts when requested to do so by plaintiff.

(Doc. #88, pp. 13-17.) Plaintiff alleges that ECMC was attempting

to collect debts on accounts she never had with the Department of

Education and the FDE. (Doc. #88, ¶¶ 55, 56.)

The Court previously denied a motion by ECMC for judgment on

the pleadings which raised the same contention. (Doc. #171, pp.

4-8.) ECMC asserts it has now submitted evidence which

demonstrates that a reasonable investigation was conducted.

(1) Material Facts in Record

ECMC filed the Affidavit of Kerry Klisch (Doc. #182-1, pp. 2-

8), a litigation specialist in the legal department of ECMC Shared

Services Company that provides shared services to the ECMC family

group of companies, including legal services to ECMC. (Id., p. 2,

¶ 1.) The Affidavit sets forth the following:

Plaintiff executed four Promissory Notes under which eight

(8) student loan disbursements were made to Plaintiff or Southwest

Florida College on plaintiff’s behalf. (Id., pp. 10-40.) Although

the loans were originally guaranteed by FDE, when plaintiff filed

a Chapter 13 bankruptcy case FDE transferred all right, title and

interest in the loans to ECMC. (Id., p. 41, Exh. B.) After the

bankruptcy proceeding concluded, plaintiff’s loans went back to

lenders for repayment, but ECMC retained the guarantee on the

loans. (Id., p. 6, ¶ 9.) The lenders submitted default claims to

ECMC because Plaintiff failed to maintain repayment of the loans.

ECMC paid the lenders’ claims, and interest in the loans were

transferred back to ECMC. (Id., ¶ 10.)

On July 1, 2017, plaintiff sent a letter to ECMC disputing

the debt and asking for validation of the debt. (Doc. #177-1, p.

229.) Plaintiff stated, among other things, that “I am requesting

proof that I am indeed the party you are asking to pay this debt,

and there is some contractual obligation that is binding on me to

pay this debt.” (Id.) Plaintiff requested that ECMC provide her

with eighteen (18) categories of documents. (Id., p. 234.)

On July 27, 2017, ECMC sent a letter to plaintiff which

“provides the results of our investigation of your dispute.” (Id.,

p. 235.) The letter provided plaintiff with a loan summary that

listed disbursement dates and amounts, and the dates the default

claims were paid for the loans; the promissory notes which are the

basis of the loans; and the complete transaction histories showing

all activity on the loans since the date of transfer. (Id., pp.

236-237.) The letter stated: “We have determined that our credit

reporting for the above-referenced loans is accurate or we have

updated the information with the national consumer reporting

agencies (aka credit bureaus) to make it accurate.” (Id., p. 235.)

The letter continued: “ECMC has requested the national consumer

reporting agencies update the status of this tradelines to

‘Disputed.’ ECMC is not responsible for and has no control over

whether or how long it takes for the national consumer reporting

agencies to update your consumer credit report.” (Id.)

ECMC marked plaintiff’s account as ‘disputed’ on its business

system on July 27, 2017. (Doc. #182-1, p. 7, ¶ 14.) As a result,

the loans were reported as disputed to the credit bureaus. (Id.,

p. 7, ¶ 14.) A log indicates that the account dispute was reported,

and credit bureau notification letters were sent to plaintiff on

August 6, 2017. (Id., p. 61.)

On August 28, 2017, plaintiff sent a letter to the Chief

Financial Officer of ECMC accusing ECMC of fraud which “nullifies

anything I may have signed.” (Id., p. 47.) Plaintiff’s letter

stated that “no one answered any of the points in my previous

letter” and again disputed the debt. (Id.) Plaintiff stated that

she had concluded that ECMC was “in breach of the alleged

agreement,” and requested eight categories of information be

provided within thirty days. (Id., pp. 47-48.)

On September 15, 2017, ECMC sent a letter to plaintiff stating

it had investigated the evidence she had submitted to support her

belief the debt was not past due or not legally enforceable in the

amount described. The letter continued: “A thorough review of

your account indicates you are liable for the debt as specified in

the notice.” The stated reason was:

You continue to claim this debt is invalid.

Enclosed is a copy of the correspondence ECMC

originally sent to you on July 27, 2017. This

letter addressed the same issue. Be advised it

is ECMC's position your concerns have already

received a complete and accurate response from

this office.

(Doc. #177-1, p. 242.)

On September 18, 19, and 20, 2017, ECMC received and processed

electronic disputes from Experian, Equifax, and Trans Union. ECMC

responded to each as disputed and assigned to collections. (Id.,

p. 7, ¶ 15; pp. 63-65.) The Equifax results were sent to plaintiff

on September 21, 2017, showing that “Consumer Disputes This Account

Information” while also concluding “This creditor has verified to

OUR company that the current status is being reported correctly.”

(Doc. #177-1, pp. 188, 192, 207.)

On January 23, 2018, plaintiff sent another letter to ECMC

again disputing the claim and seeking validation, arguing that

“ECMC has not properly responded to my letters of dispute by

providing evidence of the alleged debt nor to the Consumer

Reporting Agencies.” (Doc. #177-1, p. 244.) Plaintiff requested

sixteen (16) categories of information from ECMC. (Id., p. 246.)

On February 12, 2018, ECMC responded by letter indicating a

balance of $33,008.85 and stating:

You continue to dispute the loans ECMC holds

[i]n your name and continue to request

validation of the debt. Be advised, ECMC has

already responded to this issue numerous

times. For your reference, enclosed are copies

of our previous correspondences. Please note

the highlighted dates of these letters as we

have answered all the correspondences you

submitted. ECMC stands firm that you are

legally obligated to repay the outstanding

balances listed above and will no longer

address this same issue with you.

The burden to prove your dispute is your

responsibility. You must provide ECMC with

documentation clearly indicating you are not

legally obligated to repay this debt.

Otherwise, ECMC must comply with federal

regulations and actively pursue the full

recovery of these funds on behalf of the U.S.

Department of Education.

All federal student loan information can be

found at the National Student Loan Data System

(NSLDS), which is the central database for all

federal loans administered by the U.S.

Department of Education (ED). Please be

advised according to NSLDS, you received a

total of eighteen student loans. Seven of

those loans are currently held by ECMC and are

in a default status.

(Id., p. 249) (emphasis in original).

At her deposition, plaintiff conceded that ECMC had

investigated, but she argued that ECMC had not “validated” the

debt because it failed to provide her with the original promissory

note.

. . . Count two says that we failed to do a

meaningful investigation. So if you look at

our replies to your dispute letters, we

replied that we did, in fact, investigate, and

we made conclusions from those investigations,

so we did investigate.

So do we just have a difference of opinion

where you're saying we didn't investigate and

my client says they are, they did investigate?

A. I'm -- you did investigate, but you never

validated it with the original promissory

note.

Q. All right. But it said right in the note,

right here, that a copy is to be acceptable,

just as acceptable as the original.

A. I don't remember or recall reading that.

Q. But just because you don't remember or

recall reading that doesn't mean the term is

not clearly in the agreement.

(Doc. #178-2, pp. 45-46.)

(2) Fair Credit Report Act

The FCRA does not specify the nature and extent of the

“investigation” a furnisher of information must conduct under §

1681s-2(b). The Eleventh Circuit has held that “reasonableness” is

an appropriate touchstone for evaluating investigations under §

1681s–2(b), so there is a duty to make reasonable efforts to

investigate disputes brought to a furnisher’s attention by the

consumer. Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295,

1301–02 (11th Cir. 2016). What constitutes a “reasonable

investigation” will vary depending on the circumstances of the

case and whether the investigation is being conducted by a CRA

under § 1681i(a), or a furnisher of information under § 1681s–

2(b). Id. at 1302. “Whether a furnisher's investigation is

reasonable will depend in part on the status of the furnisher—as

an original creditor, a collection agency collecting on behalf of

the original creditor, a debt buyer, or a down-the-line-buyer—and

on the quality of documentation available to the furnisher.” Id.

A furnisher may verify that the information is accurate by

“uncovering documentary evidence that is sufficient to prove that

the information is true,” or by “relying on personal knowledge

sufficient to establish the truth of the information.” Id. at 1303.

When a furnisher ends its investigation by reporting that the

disputed information has been verified as accurate, “the question

of whether the furnisher behaved reasonably will turn on whether

the furnisher acquired sufficient evidence to support the

conclusion that the information was true.” Id. There only need

be an investigation of the factual error which was reported. Losch

v. Nationstar Mortgage LLC, 995 F.3d 937, 945 (11th Cir. 2021).

Plaintiff cannot prevail on her claim against ECMC pursuant

to § 1681s–2(b) without identifying some fact in the record

establishing that the information ECMC reported regarding her

account was inaccurate or incomplete. Felts v. Wells Fargo Bank,

N.A., 893 F.3d 1305, 1312–13 (11th Cir. 2018).

Regardless of the nature of the investigation

a furnisher conducted, a plaintiff asserting

a claim against a furnisher for failure to

conduct a reasonable investigation cannot

prevail on the claim without demonstrating

that had the furnisher conducted a reasonable

investigation, the result would have been

different; i.e., that the furnisher would have

discovered that the information it reported

was inaccurate or incomplete, triggering the

furnisher's obligation to correct the

information. Absent that showing, a

plaintiff's claim against a furnisher

necessarily fails, as the plaintiff would be

unable to demonstrate any injury from the

allegedly deficient investigation. And, in

turn, a plaintiff cannot demonstrate that a

reasonable investigation would have resulted

in the furnisher concluding that the

information was inaccurate or incomplete

without identifying some facts the furnisher

could have uncovered that establish that the

reported information was, in fact, inaccurate

or incomplete.

Id. at 1313. “Consumers have no private right of action against

furnishers for reporting inaccurate information to CRAs regarding

consumer accounts. See id. § 1681s–2(c)(1).” Id. at 1312.

“Instead, the only private right of action consumers have against

furnishers is for a violation of § 1681s–2(b), which requires

furnishers to conduct an investigation following notice of a

dispute. See id.” Id. The “investigations, reviews, and reports”

on information provided to consumer reporting agencies must be

completed “before the expiration of the period under section

1681i(a)(1) of this title.” 15 U.S.C. § 1681s-2(b)(2). The

deadline is thus “before the end of the 30-day period beginning on

the date on which the agency receives the notice of the dispute

from the consumer or reseller.” 15 U.S.C. § 1681i(a)(1).

(3) Summary Judgment Resolution

Plaintiff counters ECMC’s summary judgment evidence with

arguments about the failure to produce original documents,

asserting that “ECMC has not produced the original Promissory

Note.” (Doc. #185, p. 2, ¶ 8.) Plaintiff also asserts that

neither ECMC nor the United States has proved a loss, and if there

is a guarantee, the value is the Promissory Note, not anything

ECMC or the United States provided. (Id. ¶ 9.)3 Plaintiff cites

no affidavits or other evidence that ECMC failed to investigate

the disputes or that the debts were inaccurate. Plaintiff states

that after receiving a notice of dispute from a consumer, a

furnisher such as ECMC is required to provide notice of the dispute

to the CRAs within a timely manner, and that ECMC failed to do so

by not placing a “notice of dispute” on Plaintiff’s alleged account

within the thirty (30) day period. (Doc. #185, pp. 9-13.)

The evidence establishes that plaintiff’s notice of dispute

and the disputes reported to consumer reporting agencies were

reviewed and responded to within 30 days of the receipt of a notice

of dispute. (Doc. #182-1, pp. 62-65.) Plaintiff does not dispute

that an investigation occurred, and the record establishes that

ECMC conducted a reasonable investigation of the dispute

identified by plaintiff in her correspondence. Plaintiff admitted

at her deposition that she had no evidence of her own to suggest

inaccuracies and she did not know of any documents that would show

3

Plaintiff’s Opposition to the summary judgment motion refers

to the legal standard and argument regarding a motion to dismiss.

(Doc. #185, pp. 3-7) as well as the legal standard and cases

addressing summary judgment. Given her pro se status, the Court

gives liberal consideration to her Response.

the loans were incorrect. (Doc. #177-1, 88:3-13.) Summary

judgment will be granted in favor of ECMC.

Accordingly, it is now

ORDERED :

1. Defendant Florida Department of Education’s Motion for

Summary Judgment (Doc. #178) is GRANTED as to Counts 7 and

8 in favor of FDE.

2. Defendant Education Credit Management Corporation’s

Motion for Summary Judgment (Doc. #180) is GRANTED as to

Count 2 in favor of ECMC.

3. The Clerk shall enter judgment pursuant to the July 22,

2021, Opinion and Order (Doc. #171)4* and as set forth in

this Opinion and Order, terminate all pending motions and

deadlines as moot, and close the file.

DONE AND ORDERED at Fort Myers, Florida, this 15th day of

February 2022,

ox EOP

gee Zz. Ab Zo0b

J9GHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Parties of record

4 Judgment shall also be entered in favor of FDE on Counts 2,

4, and 9 and in favor of ECMC on Counts 3, 4, 7, and 8.