# Medley v. Dish Network, LLC

> District Court, M.D. Florida · March 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10109723

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109723

## How later opinions describe it (automated extraction)

- holding genuine dispute of material fact existed as to debt collector’s knowledge where jury could infer actual knowledge based on reading of a contract but reach opposite conclusion when considering deposition testimony of corporate representative for debt collector
- discussing 15 U.S.C. § 1692k(c)

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LINDA MEDLEY,

Plaintiff,

v. Case No: 8:16-cv-2534-CEH-CPT

DISH NETWORK, LLC,

Defendant.
___________________________________/
ORDER
This matter comes before the Court on the parties’ cross motions for summary
judgment. Docs. 117, 119. Defendant DISH Network L.L.C. (“DISH” or
“Defendant”) moves for summary judgment and argues that Plaintiff cannot show that
DISH actually knew that it was attempting to collect an invalid debt while Plaintiff
was represented by counsel with respect to that debt. Doc. 117. Plaintiff Linda Medley
(“Medley” or “Plaintiff”) moves for partial summary judgment on her claims under
the Florida Consumer Collection Practices Act (“FCCPA”) and also argues that
DISH’s bona fide error affirmative defense fails as a matter of law. Doc. 119. The
Court, having considered the cross motions and being fully advised in the premises,
will deny DISH’s Motion for Summary Judgment and grant-in-part and deny-in-part
Plaintiff’s Motion for Partial Summary Judgment.
I. BACKGROUND1
A. Stipulated Factual Background (Doc. 124)

On April 15, 2013, Medley and DISH entered into a “Digital Home Advantage
Plan Agreement” (“DHA Agreement”), a Service Agreement, and a Residential
Customer Agreement. Doc. 124 ¶ 1; Doc. 31-3 at 2–19. Medley’s DISH account
number ended in “8000.” Id. As part of the DHA Agreement, DISH agreed to provide
Medley satellite television services and equipment for a twenty-four (24) month term

in exchange for monthly payments from Medley. Id. When Medley entered into the
DHA Agreement, she provided the telephone number 727-XXX-2894. Id. ¶ 2. Medley
is the owner of a cellular telephone with the assigned number 727-XXX-9414. Id. ¶ 3.
On March 14, 2014, Medley called DISH from the “9414” cell number and was
ultimately enrolled in the “DISH Pause” program, which allowed Medley to suspend

DISH services under the DHA Agreement for up to nine (9) months for a monthly
payment of five dollars ($5.00) plus tax. Id. ¶ 4. On April 18, 2014, Medley called
DISH from the “9414” number and stated she intended to file for bankruptcy. Id. ¶ 5.
During this call, the “9414” number was provided to DISH. Id. Medley could not
afford to pay the early termination fees provided under the DHA Agreement, and

therefore, she did not immediately cancel her services. Id. ¶ 6.

1 The Court has determined the facts, which are undisputed unless otherwise noted,
based on the parties’ submissions, including the parties’ stipulation of agreed material
facts (Doc. 124), depositions, affidavits and attachments thereto. For purposes of
summary judgment, the Court presents the facts in the light most favorable to the non-
moving party, as required by Fed. R. Civ. P. 56.
On May 26, 2014, Medley filed a verified Chapter 7 bankruptcy petition in the
United States Bankruptcy Court, Middle District of Florida, Tampa Division
identified by case number 8:14-bk-05961-CPM (“Bankruptcy Case”). Id. ¶ 7. Medley

listed “DISH TV” as an unsecured creditor on Schedule F of her Petition, listed
“Satellite Service,” and listed an amount of $831.74. Id. ¶ 8. On August 26, 2014, the
Bankruptcy Court entered a Discharge of Debtor order in Medley’s Bankruptcy Case
(“Discharge Order”). Id. ¶ 9; Doc. 2 at 25.

On October 15, 2014 and December 30, 2014, counsel for Medley sent a fax
transmission to the fax number 303-723-3559, which number is owned by DISH. Doc.
124 ¶¶ 10, 13.
On or about October 24, 2014; November 3, 2014; December 3, 2014; January
14, 2015; and February 14, 2015, DISH sent Medley billing notifications. Doc. 124 ¶

11; see also Doc. 2 at 33, 35, 37, 44, 46.
On or about October 24, 2014; November 17, 2014; November 26, 2014;
December 15, 2014; December 18, 2014; and January 16, 2015, DISH made telephone
calls to the “9414” number using a prerecorded voice. Doc. 124 ¶ 12.
B. Counsel’s faxed letters of representation

The fax letter sent to DISH was on counsel’s letterhead and referenced an
account number ending in “8000.” Doc. 2 at 30, 39. The fax states in relevant part:
Collections Representative:
Please be aware that this law firm (see above contact
information) represents Linda Medley with regard to her debts
generally (i.e., for the purpose of settling ALL of her debts for filing
a bankruptcy), including the above listed account and any other
accounts of debts which you or your agency is attempting to collect
from our client(s). Any further communication with our client(s)
will be in violation of Fla. Stat. § 559.72(18), which provides in
part that:
“[I]n collecting consumer debts, no person shall
communicate with the debtor if that person knows that
the debtor is represented by an attorney with respect to
such debt and has knowledge of … such attorney’s
name and address.”

Doc. 2 at 30, 39. The letters are dated October 15, 2014 and December 30, 2014. Id.
C. The Pause Feature
DISH’s Pause feature allows DISH customers to temporarily suspend their
programming, although the account remains active. Doc. 117-2 ¶ 7. Plaintiff’s
Agreement with DISH states, “If you participate in DISH Pause or any other program
that allows you to temporarily suspend your DISH service at any time during your
term commitment, your term commitment will be extended by the number of days
that your service is suspended.” Doc. 117-3 at 3. The Residential Customer Agreement
provides for a monthly fee of $5.00 to participate in DISH Pause. Id. at 19.
D. Joey Montano affidavit (Doc. 117-2)
According to DISH’s business operations manager, Joey Montano, DISH
automatically generated its standard monthly Pause charges and emailed those to
Plaintiff on October 4, 2014; October 24, 2014; November 3, 2014; December 3, 2014;
January 14, 2014; and February 4, 2015 for those respective billing periods. Doc. 117-
2 ¶ 19. The first email was generated before DISH received the first fax from Plaintiff’s
counsel on October 15, 2014. Id. The telephone call log (Doc. 117-10 at 3) shows the
outbound call activity related to Plaintiff’s account. Doc. 117-2 ¶ 22. DISH called
Plaintiff on November 26, 2014, regarding the Pause debt. Id. ¶ 20. According to
Montano, “[n]o other debt related calls exist.” Id.

Montano states “Plaintiff’s relationship with DISH survived her bankruptcy
because she never canceled her account.” Id. ¶ 12. After Plaintiff filed for bankruptcy
on May 26, 2014, Plaintiff kept DISH’s television equipment, which Montano states
showed her intention to reactivate her services. Id. ¶ 10. Filing for bankruptcy does not

automatically cancel a DISH customer’s account. Id. ¶ 11.
E. Sharon Picchione Affidavit (Doc. 117-8)
Picchione is DISH’s vice president of billing and credit. Doc. 117-8 ¶ 2. She
provides an affidavit on DISH’s behalf stating that if DISH receives notification of a
customer’s bankruptcy discharge, DISH will write off that debt. Id. ¶ 3. If DISH

receives a fax notifying it that a customer is represented by counsel regarding a debt,
DISH will record the request in its account notes and not contact that customer
regarding that debt. Id. ¶ 4. DISH received three of the same faxes from Plaintiff’s
counsel that were dated October 15, 2004; December 30, 2015; and February 16, 2015.
Id. ¶ 5. Upon receipt of the faxes, a DISH customer service representative determined

that the bankruptcy analyst should assess the fax. Id. The bankruptcy specialist pulled
up Plaintiff’s account and saw the bankruptcy discharge. Id. As a result, according to
Picchione, “DISH wrote off the discharged debt.” Id. Because the fax stated that
Plaintiff retained counsel “for the purpose of settling all of her debts for filing a
bankruptcy,” and not with respect to the Pause charges, Picchione states that DISH
did not contact Plaintiff with regard to her discharged bankruptcy debt. Id. ¶ 6.
F. DISH account notes (Doc. 51-5 at 4–5)

The account notes for Medley’s account reflect that it was activated on April
15, 2013. Doc. 51-5 at 8. On March 14, 2014, the “DISH Pause” Disclosures were
read and accepted. Id. at 5. In a telephone call on April 18, 2014, the notes reflect
Plaintiff needed to cancel her service, that she is aware of the early termination fee,

and that she is filing bankruptcy. Id. Plaintiff was inquiring as to what paperwork
needed to be provided for her bankruptcy and regarding the early termination fee. Id.
On the same date later in the evening, an account note documents Plaintiff wanted to
cancel her service and she was filing bankruptcy. Id. Plaintiff was advised she needed
to send documents first but then the call was disconnected. Id.

The following account notes discuss Plaintiff’s bankruptcy:
6/13/2014 Q1Z ###Chapter 7 Bankruptcy Filed 20140526###Write off
not applied###Case #1405961 Please note that a
discharge has not been received at this time. The account
will be monitored and written off when discharge
granted.******

08/23/2014 Q1Z ***Bankruptcy filed 20140526###wrote off eligible
amount as part of the new bankruptcy clean up process###
Please note that a discharge has not been received at this
time. If the bankruptcy is dismissed or closed, the credit will
be reversed.******

09/15/2014 Q1Z ***Chapter 7 bankruptcy filed 20140526###Case
#1405961 was discharged in the state of Middle District of
FL***0 was written off under the bankruptcy. Cust
responsible for all charges after the file date.
B&C/Bankruptcy***
Id. at 5.
After the bankruptcy discharge in August 2014, the account notes reflect that
Estatements billing Plaintiff for the Pause charges were sent to Plaintiff on 9/3/2014,
10/4/2014, 11/3/2014, 12/3/2014, 1/3/2015, and 1/14/2015. Id. at 4. Delinquency
notification emails were sent 12/4/2014, 12/13/2014, 12/16/2014, 12/20/2014, and

1/9/2015. Id.
G. Procedural Background
Plaintiff initiated this action in state court in July 2016 against DISH alleging
state and federal causes of action under the Florida Consumer Collection Practices

Act, Chapter 559, Florida Statutes (“FCCPA”) and the Telephone Consumer
Protection Act, 47 U.S.C. § 227 (“TCPA”). Doc. 2. DISH removed the case to this
Court in August 2016. Doc. 1. In August 2018, the Court granted summary judgment
in DISH’s favor. Doc. 85. Plaintiff appealed (Doc. 87), and on May 4, 2020, the
Eleventh Circuit affirmed in part, reversed in part, and remanded the case to this

Court. Doc. 95. Specifically, the Eleventh Circuit affirmed summary judgment in favor
of DISH on the Plaintiff’s TCPA claim and reversed summary judgment in favor of
DISH as to Plaintiff’s FCCPA claim. Doc. 97. Regarding the FCCPA claim, the
Eleventh Circuit held that “DISH attempted to collect debt it had no legal right to
collect because the debt had been discharged in bankruptcy.” Id. at 13. The appellate

court further determined that “DISH directly contacted Medley after having received
notice that she was represented by counsel.” Id. The Eleventh Circuit remanded the
case to this Court “to consider whether DISH actually knew that the Pause charges
were invalid and that Medley was represented by counsel with regard to the debt it
was attempting to collect, and if so, whether such errors were unintentional and the

result of bona fide error.” Id.
II. LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show there is no

genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine issues of
material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show
the court that there is “an absence of evidence to support the nonmoving party’s case.”
Celotex, 477 U.S. at 325.
When the moving party has discharged its burden, the nonmoving party must
then designate specific facts showing that there is a genuine issue of material fact. Id.

at 324. Issues of fact are “genuine only if a reasonable jury, considering the evidence
present, could find for the nonmoving party,” and 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, 248–49 (1986). In determining whether a genuine issue of material fact exists, the
court must consider all the evidence in the light most favorable to the nonmoving
party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by
relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852,
858 (11th Cir. 2006).

The standard of review for cross-motions for summary judgment does not differ
from the standard applied when only one party files a motion, but simply requires a
determination of whether either of the parties deserves judgment as a matter of law on
the facts that are not disputed. Am. Bankers Ins. Group v. United States, 408 F.3d 1328,

1331 (11th Cir. 2005). The Court must consider each motion on its own merits,
resolving all reasonable inferences against the party whose motion is under
consideration. Id. The Eleventh Circuit has explained that “[c]ross-motions for
summary judgment will not, in themselves, warrant the court in granting summary
judgment unless one of the parties is entitled to judgment as a matter of law on facts

that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.
1984). Cross-motions may, however, be probative of the absence of a factual dispute
where they reflect general agreement by the parties as to the controlling legal theories
and material facts. Id. at 1555–56.
III. DISCUSSION

Plaintiff sues DISH for violations of the FCCPA claiming DISH attempted to
collect a debt which it knew was invalid in violation of Fla. Stat. § 559.72(9) and DISH
contacted her although it knew she was represented by counsel regarding the invalid
debt in violation of Fla. Stat. § 559.72(18).2 Because the Court finds there are disputed
issues of material fact regarding whether DISH knew the Pause debt was invalid and
whether DISH knew Plaintiff was represented by counsel regarding the discharged

Pause debt, the motions for summary judgment are due to be denied as to the issue of
DISH’s statutory violations. As discussed below, the Court will grant summary
judgment in Plaintiff’s favor as to DISH’s Eighteenth Affirmative Defense that the
violations, if any, resulted from a bona fide error.
A. Section 559.72(9)

“[T]he FCCPA, Florida’s consumer protection statute, was enacted as a means
of regulating the activities of consumer collection agencies within the state. ‘The
FCCPA is a laudable legislative attempt to curb what the legislature evidently found
to be a series of abuses in the area of debtor-creditor relations.’” LeBlanc v. Unifund

CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (quoting 10A Fla. Jur.2D
Consumer § 138 (2010)). Generally, the FCCPA prohibits debt collection agencies and
corporations from claiming, attempting, or threatening to enforce a debt where such
person knows the right does not exist. Fla. Stat. § 559.72(9); Cook v. Blazer Fin. Servs.,
Inc., 332 So. 2d 677, 679 (Fla. 1st DCA 1976). To establish a violation of section

559.72(9), “it must be shown that a legal right that did not exist was asserted and that

2 In her original Complaint, Plaintiff also sued DISH in Count I for violation of Fla. Stat. §
559.72(7) for alleged abusive and harassing conduct by DISH in sending “at least six emails
directly to Plaintiff in an attempt to collect a debt.” Doc. 2 ¶¶ 56–63. Plaintiff sought damages
under Fla. Stat. § 559.77. As noted in the Eleventh Circuit’s opinion, Plaintiff did not appeal
the dismissal of this claim. Doc. 97 at 6 n.1. Plaintiff also sued DISH in Count IV for violation
of the TCPA. Doc. 2 ¶¶ 74–83. Dismissal of this claim was affirmed on appeal. Doc. 97 at 18.
the person had actual knowledge that the right did not exist.” Read v. MFP, Inc., 85 So.
3d 1151, 1155 (Fla. 2d DCA 2012) (quoting Pollock v. Bay Area Credit Serv., LLC, 2009
WL 2475167, at *9 (S.D. Fla. Aug. 13, 2009)).

The first part of the analysis was addressed by the appellate court when it held
DISH’s prepetition breach of contract claim for the Pause debt was discharged in
Medley’s bankruptcy. Doc. 97 at 11. Thus, DISH had no legal right to collect the Pause
debt. Id. But, to hold DISH liable for attempting to collect the discharged Pause debt,

Plaintiff must show that DISH knew that the right to collect the Pause debt did not
exist.
Under Florida law, “use of the word ‘knows’ requires actual knowledge of the
impropriety or overreach of a claim.” Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d
1291, 1312 (S.D. Fla. 2009) (quoting In re Cooper, 253 B.R. 286, 290 (Bankr. N.D. Fla.

2000)). “The statute does not provide for recovery if the creditor merely should have
known the debt was not legitimate.” Cornette v. I.C. Sys., Inc., 280 F. Supp. 3d 1362,
1371 (S.D. Fla. 2017) (quoting Schauer v. Morse Operations, Inc., 5 So. 3d 2, 6 (Fla. 4th
DCA 2009)). The FCCPA requires that a plaintiff establish that a creditor had actual
knowledge that “the debt is not legitimate” or that “the right [the creditor is seeking to

enforce] does not exist.” Fla. Stat. § 559.72(9). This does not require, however, that
the creditor know that the FCCPA forbids its conduct. Prescott v. Seterus, Inc., 684 F.
App’x 947, 949 (11th Cir. 2017).3
In support of its motion and in opposition to Plaintiff’s motion, DISH argues

that Plaintiff is unable to cite to record evidence showing it had actual knowledge that
the Pause debt was discharged in bankruptcy. DISH contends the documents and
testimony are uncontroverted that the Pause charges were valid. DISH cites to the fact
that Plaintiff signed up for the Pause program, accepted the Pause disclosures, and
never canceled the Pause service. Doc. 117-2 ¶¶ 7–16. DISH never read the cancelation

disclosures and terms to Plaintiff. Id. ¶ 17. DISH submits that the mere act of filing for
bankruptcy does not result in a canceled account. Id. ¶ 11. DISH does not dispute it
had knowledge of Plaintiff’s bankruptcy (Doc. 65-3 at 17–19), but submits there are
situations where a DISH customer files bankruptcy and still desires to be an active

DISH customer. Doc. 65-3 at 112. Because Plaintiff kept her DISH television
equipment, DISH contends this showed Plaintiff’s intent to reactivate her DISH
services. Doc. 117-2 ¶ 10. Plaintiff did not cancel her DISH service. Doc. 117-2 ¶ 16.
Thus, DISH documented in its account notes that Plaintiff will remain “responsible
for all charges after the file date” of the bankruptcy. Doc. 117 at 6; Doc. 51-5 at 5.

DISH believed its phone call and emails to Plaintiff were made and sent in accordance
with the accepted Pause disclosures. Doc. 117-2, pp 4-6. Further, DISH argues it is

3 In the Eleventh Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” United States v. Rodriguez, 751 F. 3d 1244, 1251 n.5
(11th Cir. 2014) (quoting 11th Cir. R. 36-2).
illogical that it would write off $831 in discharged bankruptcy debt, and yet refuse to
write-off $43 if it actually knew that the debt was invalid.
In support of her motion and in opposition to DISH’s motion, Plaintiff cites to

the fact that DISH knew Plaintiff filed bankruptcy. Doc. 44-3 at 102; Doc. 44-6 at 46.
Regarding DISH’s monitoring of the bankruptcy case, there is no indication the Pause
debt was ever reaffirmed or assumed. Doc. 44-3 at 118. DISH received notification of
Medley’s discharge in bankruptcy. Doc. 44-3 at 23–24. The account number for the
Pause charges was the same account number (ending in “8000”) listed in Plaintiff’s

bankruptcy schedules. Doc. 44-6 at 20. Moreover, Plaintiff challenges DISH’s
contention that it believed Medley wanted to continue her DISH service post-
bankruptcy by citing to the account note which specifically documents: “talked to
Linda [Medley]/wanna cancel service, said she filed bankruptcy….” Doc. 117-4 at 5.
Plaintiff argues these notes establish that she disclosed her desire to cancel her service

with DISH and belie DISH’s argument that DISH reasonably believed that Plaintiff
“desired to continue her relationship with DISH” after she filed for bankruptcy. DISH
responds that the Pause service was never, in fact, canceled because it never read the
disclosures due to the call being disconnected.4
Although the statute does not provide for recovery if the creditor merely should

have known the debt was not legitimate, Schauer, 5 So. 3d at 6, Plaintiff has proffered
enough evidence in the record from which a jury could reasonably infer that DISH

4 The parties do not direct the Court to any evidence in the record explaining why the call was
disconnected.
knew the Pause debt was invalid and that it did not have the right to collect it. On the
other hand, considering the evidence in a light most favorable to DISH, a jury could
reach the opposite conclusion, as DISH has provided record evidence from which a

jury could infer DISH did not know that the Pause debt was invalid. See Prescott, 684
F. App’x at 949 (holding genuine dispute of material fact existed as to debt collector’s
knowledge where jury could infer actual knowledge based on reading of a contract but
reach opposite conclusion when considering deposition testimony of corporate
representative for debt collector). These factual disputes cannot be resolved on

summary judgment. Accordingly, the parties’ cross motions for summary judgment as
to Plaintiff’s claim for alleged violations of § 559.72(9), Fla. Stat., are due to be denied.
B. FCCPA Claim under § 559.72(18), Fla. Stat.
Section 559.72(18) prohibits any person attempting to collect a consumer debt

from “[c]ommunicat[ing] with a debtor if the person knows that the debtor is
represented by an attorney with respect to such debt and has knowledge of, or can
readily ascertain, such attorney’s name and address . . . .” Pursuant to the plain
language of the statute, the debtor must demonstrate that the debt collector “knows”
or has “knowledge” that the consumer is represented by an attorney “with respect to”

such debt. Castellanos v. Portfolio Recovery Assocs., LLC, 297 F. Supp. 3d 1301, 1309 (S.D.
Fla. 2017).
The Eleventh Circuit remanded this case for consideration of whether DISH
knew “Medley was represented by counsel with regard to the debt it was attempting
to collect.” Doc. 97 at 13. The faxes, typed on Plaintiff’s letterhead, from Plaintiff’s
counsel to DISH provided:
Please be aware that this law firm (see above for contact
information) represents Linda Medley with regard to her
debts generally (i.e. for the purpose of settling ALL of her
debts for filing a bankruptcy), including the above listed
account and any other accounts of debts which you or your
agency is attempting to collect from our client(s).

Doc. 2 at 30, 39. There is no dispute the letters were sent to a fax number owned by
DISH. DISH does not dispute it received the faxed letters from counsel.5 Thus, Dish
had actual knowledge that Medley was represented by counsel, and it knew counsel’s
name and address.6
The question that remains is whether DISH knew counsel was representing
Medley regarding the debt it was attempting to collect, i.e., the Pause debt.
Here, DISH argues that Medley fails to proffer any evidence showing that it had
actual knowledge of counsel’s representation as to the Pause charges specifically. In
support of its position that it did not know, DISH provides the affidavit of Picchione,
who states, “because the fax stated that Plaintiff retained counsel ‘for the purpose of
settling all of her debts for filing a bankruptcy,’ and not with respect to the Pause
charges, DISH did not contact Plaintiff with regard to her discharged bankruptcy
debt.” Doc. 117-8 ¶ 6. DISH also cites to testimony of Picchione, which indicates that

5 Picchione testified that the faxes would have been received by bankruptcy analyst, Laura
Winkel. Although Picchione did not directly ask Winkel if the faxes had been received,
Picchione testified she discussed the letters with Winkel. Doc. 117-7 at 5–6.
6 Additionally, Defendant knew of counsel from the bankruptcy Notice of Commencement,
which DISH received. Doc. 1-8 at 26–27; Doc. 44-3 at 21.
Laura Winkel, the bankruptcy analyst who would have received the faxes from
counsel, would not have taken any action “because in her mind the bankruptcy was
discharged and done” as of the date of counsel’s letters. Doc. 121 at 3; Doc. 117-7 at

5–7. DISH also offers the affidavit of Montano, which refers to DISH’s account notes
that Plaintiff would remain responsible “for all charges after the file date [of]
bankruptcy.” Doc. 117-2 at 5.
DISH argues that since it was not attempting to collect any debt discharged in
bankruptcy and was only seeking to collect the Pause charges which were not

referenced in counsel’s letter, there is no evidence that it had actual knowledge that
counsel represented Plaintiff regarding the Pause debt. According to DISH, the only
debts the fax references are Plaintiff’s “bankruptcy-related” debts.” Doc. 117 at 13.
DISH contends that “it relied on the language of the faxes.” Id. It submits that Plaintiff
only offers assertions as to how DISH should have understood or interpreted the fax,

not evidence of what DISH actually knew. DISH also cites to Plaintiff’s failure to
return her DISH equipment as evidence of Plaintiff’s desire to continue her
relationship with DISH after she filed for bankruptcy. Doc. 121 at 3.
In opposition, Plaintiff argues that the faxed letters clearly identified that
counsel was representing her regarding her DISH account ending in “8000” and any

debt that DISH was attempting to collect from her, which she submits includes the
Pause charges. The fax contains one account number. The Pause debt relates to that
account. The Pause debt arises from a prepetition Agreement. The fax provides that
counsel’s representation “include[s] the above listed account and any other accounts
of debts which you or your agency is attempting to collect from [Medley].” Doc. 2 at
30, 39. Even accepting DISH’s position that it perceived the Pause debt to be a separate
debt, the fax arguably covers that scenario by including the language “any other

accounts of debts” that DISH is attempting to collect from Plaintiff.
Plaintiff also points to the fact that DISH was collecting the Pause charges after
she filed bankruptcy (but before discharge) by charging the amount due from the credit
balance on her account.7 Thus, DISH’s explanation that the Pause debt is a separate
debt is inconsistent with the fact that DISH was collecting Pause charges pre-

discharge.
There is no dispute that the account number referenced on the faxes was
Plaintiff’s DISH account ending in “8000.” DISH argues, however, that an account is
not the same as a debt. In response, Plaintiff cites to Miceli v. Orange Lake Country Club,
Inc., No. 6:14-CV-1602-ORL-41, 2015 WL 5081621, at *3 (M.D. Fla. Aug. 5, 2015),

in which the court found that “precise language or magic word[s]” are not required to
notify a debt collector that the debtor is represented by legal counsel with respect to a
debt. Although Miceli involved consideration of a motion to dismiss, that court’s
discussion of the statute’s remedial purpose is equally applicable in considering

summary judgment here. See id. at *3 (“Rigidly requiring the use of precise language

7 Plaintiff argues such conduct violates the automatic stay that was in place during the
pendency of her bankruptcy. That issue is not before this Court. The Court addresses the issue
only to note that DISH’s attempt to argue that “in its mind” it saw the Pause charges as
separate post-discharge debts is less persuasive given that DISH was charging Plaintiff Pause
charges prior to the bankruptcy discharge.
to provide notification that a debtor was represented would contradict the FCCPA’s
remedial nature and its broad purpose of protecting the public.”).
There is no dispute that the DISH Pause charges purportedly owed by Plaintiff

are not associated with an account number other than the account ending in “8000.”
There is no dispute that the terms of the Pause plan are contained in the same
prepetition Agreement that governs Plaintiff’s account with DISH. There is no dispute
that counsel provided his name and address.
On October 24, 2014; November 3, 2014; December 3, 2014; January 14, 2015;

and February 14, 2015, DISH sent Medley billing notifications. Doc. 124 ¶ 11. The
internal DISH account notes reflect that “delinquency notifications” were sent by
email to Plaintiff on December 4, 13, 16, 20, 2014, and January 9, 2015. Doc. 51-5 at
4. Montano admits that DISH called Plaintiff on November 26, 2014, regarding
collecting her Pause charges. Doc. 117-2 ¶ 20. It is undisputed this call was made to

Plaintiff by DISH after DISH’s receipt of at least one of the faxed letters of
representation. And the delinquency notifications were sent to Plaintiff by DISH after
it received one or more faxed letters of representation.
On the record before the Court, disputed issues of material fact exist as to
whether DISH actually knew that Medley was represented by counsel with regard to

the Pause debt. In a light favorable to DISH, DISH believed counsel’s letters
concerned only debts discharged in bankruptcy and that the Pause debt incurred after
the bankruptcy discharge was a separate debt that was not the subject of bankruptcy
counsel’s letter. DISH relies on the fact that the letters do not specifically reference the
Pause charges, but rather state Plaintiff retained counsel “for the purpose of settling all
of her debts for filing a bankruptcy.” DISH contends that Plaintiff signed up for the
Pause program, never canceled the Pause program, and agreed to the disclosures

regarding the Pause program. It believed its phone call and emails to Plaintiff were
made in accordance with the accepted Pause disclosures. Moreover, because Plaintiff
never returned her DISH equipment, DISH believed Plaintiff desired to continue her
relationship with DISH post-bankruptcy.
On the other hand, in a light favorable to the Plaintiff, there is evidence in the

record through counsel’s faxed letters that DISH knew Plaintiff was represented by
counsel “with regard to her debts generally” and “including the account ending in
‘8000’ and regarding “any other accounts of debts which [DISH was] attempting to
collect from [Medley].” A reasonable jury could read this letter and conclude that any
reasonable debt collector would have known that counsel represented Medley

regarding the debt DISH was trying to collect, and “infer that [the debt collector] had
actual knowledge” that Plaintiff was represented by counsel regarding the Pause
charges. See Prescott, 684 F. App’x at 949 (holding that reasonable jury could infer debt
collector had actual knowledge, in context of alleged § 559.72(9) violation, based on
reasonable reading of contract).

Similarly, in a light favorable to the Plaintiff, the Pause charges were not a new
debt, they derived from the original prepetition Agreement8, and they did not result in

8 The Eleventh Circuit concluded that the Pause debt cannot be treated separately from the
services debt. See Doc 97 at 6.
a new account number. Additionally, Plaintiff points to the fact that the letters came
months after the bankruptcy discharge. Plaintiff argues that it is illogical for counsel to
be sending letters of representation regarding debt that had already been discharged,

and thus the only logical conclusion is the letters from counsel sought to stop
communication related to the debt that DISH was trying to collect at that time, which
was the Pause debt.
Finally, Plaintiff points to the language of the statute itself which prohibits
communications with a debtor represented by counsel “unless the debtor’s attorney

fails to respond within 30 days to a communication from the person….” Fla. Stat. §
559.72(18). Plaintiff urges that the statute contemplates a debt collector will contact
debtor’s counsel, and yet there is no evidence in the record that DISH made any effort
to contact counsel to clarify the scope of counsel’s representation. In fact, Picchione
testified that the letters of attorney representation were not documented anywhere in

the DISH account notes for Plaintiff’s account. Doc. 65-3 at 35. DISH responds this is
because it believed the letters related only to bankruptcy debt which had already been
written off.
These are the types of conflicts in the evidence and weighing of witness
credibility that cannot be resolved on summary judgment and are best left for the jury

to decide. “It is the role of the trier of fact to hear the testimony of the various witnesses
concerning these matters, assess the credibility of the witnesses, and determine
whether the facts give rise to a violation of the FCCPA.” Laughlin v. Household Bank,
Ltd., 969 So. 2d 509, 513 (Fla. 1st DCA 2007) (questions of fact existed regarding
whether counsel provided notice of representation and plaintiff was contacted by debt
collector in violation of § 559.72(18)). Because disputed issues of fact exist regarding
whether DISH knew that Plaintiff was represented by counsel with regard to the Pause

debt, the parties’ motions for summary judgment are due to be denied as to Plaintiff’s
claim under § 559.72(18).
C. Bona Fide Error Defense under § 559.77(3)
In its Answer and Affirmative Defenses, DISH raises bona fide error as an

affirmative defense. Doc. 5 at 12. Under the FCCPA, “[a] person may not be held
liable in any action brought under this section if the person shows by a preponderance
of the evidence that the violation was not intentional and resulted from a bona fide
error, notwithstanding the maintenance of procedures reasonably adapted to avoid
such error.” Fla. Stat. § 559.77(3). Courts construing and applying this provision of

Florida law give great weight “to the interpretations of the Federal Trade Commission
and the federal courts relating to the federal Fair Debt Collection Practices Act
[“FDCPA”].”9 Id. § 559.77(5); Gann v. BAC Home Loans Servicing LP, 145 So.3d 906,
908 (Fla. 2d DCA 2014). In an FDCPA case, the Eleventh Circuit held, “[a] debt
collector asserting the bona fide error defense must show by a preponderance of the

9 Section 1692k(c) of the Fair Debt Collection Practices Act includes a bona fide error defense
nearly identical to the FCCPA: “[a] debt collector may not be held liable in any action brought
under this subchapter if the debt collector shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such error.” Marchisio v.
Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1307 (11th Cir. 2019) (quoting 15 U.S.C. §
1692k(c)).
evidence that its violation of the Act: (1) was not intentional; (2) was a bona fide error;
and (3) occurred despite the maintenance of procedures reasonably adapted to avoid
any such error.” Edwards v. Niagara Credit Sols., Inc., 584 F.3d 1350, 1352–53 (11th Cir.

2009) (discussing 15 U.S.C. § 1692k(c)).
“As used in the [FDCPA] ‘bona fide’ means that the error resulting in a
violation was made in good faith; a genuine mistake, as opposed to a contrived
mistake.” Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1308 (11th Cir.
2019) (quoting Edwards v. Niagara Credit Sols., Inc., 548 F.3d 1350, 1352–53 (11th Cir.

2009)). “To be considered a bona fide error, the debt collector’s mistake must be
objectively reasonable.” Id.
Although DISH raises the bona fide error defense in its answer, it has not moved
for summary judgment on this defense. Doc. 117 at 9 n.2 (stating “DISH does not seek

summary judgment on a bona fide error defense here” because it believes the issue is
moot). In response to Plaintiff’s motion for summary judgment on DISH’s affirmative
defense of bona fide error, DISH argues that the bona fide error defense is never
triggered because Plaintiff fails to establish a prima facie case demonstrating that DISH
had actual knowledge per § 559.72(9) and § 559.72(18). Given the Court’s conclusion

above that disputed issues of material fact exist on the question of DISH’s knowledge,
the bona fide error defense is still potentially at issue, notwithstanding DISH’s
arguments to the contrary.
The Supreme Court explains that a debt collector may not avail itself of the bona
fide error defense for mistaken interpretations of the law. Jerman v. Carlisle, 559 U.S.
573, 604-05 (2010). In so holding, the Court states, “[i]t is far from obvious why
immunizing debt collectors who adopt aggressive but mistaken interpretations of the
law would be consistent with the statute’s broadly worded prohibitions on debt

collector misconduct.” Id. at 602. Here, DISH made a legal mistake. The Eleventh
Circuit has specifically concluded that “DISH had a prepetition breach of contract
claim against Medley for the Pause debt” that was discharged by the Bankruptcy
Judge’s discharge order and that “DISH attempted to collect debt it had no legal right
to collect because the debt had been discharged in bankruptcy.” Doc. 97 at 11, 13

(emphasis added). Indeed, while DISH asserts it did not know at the time that it had
made a legal error, it acknowledges the fact that the account note documenting that
Plaintiff is responsible for all charges after the bankruptcy discharge was a legal error.
Doc. 117 at 6. Similarly, it acknowledges that, while it did not know so at the time, its

reading of counsel’s faxed letters of representation was legally wrong. Doc. 117 at 2.
As such, DISH may not rely upon the bona fide error defense because the error was a
legal error, not a mistake.
Despite acknowledging in its motion for summary judgment that its errors were
legal errors (Doc. 117 at 2, 6), DISH responds to Plaintiff’s motion for summary

judgment by alternatively arguing that the bona fide error defense applies because, at
worst, it made a good faith and reasonable mistake of fact. Doc. 121 at 10. Even if the
Court were to accept DISH’s contention that its error was a factual, not a legal one,
DISH still fails to show a genuine dispute of material fact exists on the issue. To avail
itself of the bona fide error defense, a debt collector must not only establish that the
violation of the statute was unintentional and a bona fide error, it must show it
occurred despite the maintenance of procedures reasonably adapted to avoid any such
error. Fla. Stat. § 559.77(3).

In response to Plaintiff’s motion directed to DISH’s affirmative defense, the
only evidence DISH offers in support of its position that this was a mistake, entitling
it to the bona fide error defense, is to cite to record evidence that “Plaintiff never
cancelled her service or returned her equipment.” Doc. 121 at 10. This evidence speaks
nothing to DISH’s maintenance of procedures reasonably adapted to avoid the errors

at issue. As argued by Plaintiff, which DISH does not refute in its response, there is no
evidence DISH had any procedure in place to avoid continuing to debit Plaintiff’s
credit balance during the pendency of her bankruptcy, which it continued to do. See
Doc. 31-6 at 30–43. In fact, the policy at the time, appears to support the practice. Doc.
44-3 at 100 (policy was to not write-off until the discharge). DISH’s policy was to not

document bankruptcy attorney contact information when it received notice that a
client filed for bankruptcy. Doc. 44-3 at 102–03. DISH’s procedures provided that an
analyst would take no action and not document a bankruptcy attorney’s
communications regarding one of DISH’s clients if the account shows the bankruptcy
is discharged. Doc. 44-3 at 35–37. DISH does not include in a customer’s account

notes whether a debt was reaffirmed or a contract assumed in the context of a
customer’s bankruptcy case. Doc. 44-3 at 105. DISH does not refute that it does not
look for its customer’s reaffirmation of a debt within their bankruptcy case. DISH fails
to address these practices and procedures, or lack thereof, and otherwise fails to direct
the Court to any procedures it had adopted to avoid the errors at issue.
Plaintiff is entitled to summary judgment in her favor regarding the bona fide
error defense raised in Defendant’s Eighteenth Affirmative Defense (Doc. 5 at 12).
Accordingly, if a jury determines that DISH violated § 559.72(9) or § 559.72(18)
because DISH knew that the Pause charges were invalid or that Medley was
represented by counsel with regard to the Pause charges, DISH may not avail itself of
the bona fide error affirmative defense of Fla. Stat. § 559.77(3). Accordingly, it 1s
ORDERED:
1. Defendant Dish Network LLC’s Motion for Summary Judgment (Doc.
117) is DENIED.
2. Plaintiffs Motion for Partial Summary Judgment (Doc. 119) is
GRANTED to the extent that Plaintiff is entitled to summary judgment as to DISH’s
bona fide error defense. In all other respects, Plaintiffs Motion for Partial Summary
Judgment is DENIED.
3. By separate notice, the Court will schedule a status conference to discuss
scheduling this matter for trial.
DONE AND ORDERED in Tampa, Florida on March 25, 2022.

□□□ lene Ldwarda Mp TDs gl ell
Charlene Edwards Honeywell
United States District Judge

Copies to: Counsel of Record and Unrepresented Parties, if any
25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109723. Public record. Not legal advice.