James v. Wadas

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 31, 2013

Elisabeth A. Shumaker

FOR THE TENTH CIRCUIT Clerk of Court

GEORGE JAMES,

Plaintiff-Appellant,

v. No. 12-8076

CHERYL WADAS; WADAS LAW

OFFICE,

Defendants-Appellees,

and

ABBY SHADAKOFSKY,

d/b/a Personal Collection Service,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

(D.C. No. 2:11-CV-00368-ABJ)

Submitted on the briefs:*

George James, Pro Se.

*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Lindsay A. Woznick, Hirst Applegate, LLP, Cheyenne, Wyoming, for

Defendants-Appellees.

Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.

McKAY, Circuit Judge.

George James filed this action against Cheryl Wadas and Wadas Law Office

(collectively “Wadas”) and Abby Shadakofsky, d/b/a Personal Collection Service

(“Shadakofsky”), asserting violations of the Fair Debt Collection Practices Act

(FDCPA), 15 U.S.C. §§ 1692-1692p. James appeals from the district court’s order

granting summary judgment in favor of Wadas on the basis that she is not a “debt

collector” within the meaning of the FDCPA. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

I. Background

This FDCPA action results from proceedings that occurred in a debt collection

action filed by Shadakofsky against James in Wyoming state court in August 2011.

In the state court action, James filed counterclaims, asserting violations of the

FDCPA and a claim of emotional distress. Shadakofsky failed to timely respond to

James’s counterclaims, however, and the state court entered a default judgment

against her in October 2011. Shadakofsky subsequently retained Wadas, a licensed

attorney operating a solo practice since 1994 with whom Shadakofsky had a previous

retainer agreement to represent her on an as-needed basis. Without knowing that a

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default judgment had been entered against Shadakofsky, Wadas filed an untimely

answer/reply to James’s counterclaims and served him with amended initial

disclosures. In those disclosures, Wadas represented that legal fees were estimated to

be $3,000. Wadas later represented, in an untimely response to James’s discovery

requests, that the legal fees were estimated in error.

It appears that in light of these procedural irregularities that occurred after

default judgment had been entered, James did not avail himself of redress in the state

court action but instead filed the instant FDCPA action pro se in federal district court

in January 2012. James asserted that Wadas, and Shadakofsky vicariously as

Wadas’s principal, violated the FDCPA by committing the following acts in the state

court action: 1) representing that legal fees were $3,000 when the underlying debt did

not provide for the recovery of legal fees; 2) serving and filing an untimely

answer/reply to the counterclaims; and 3) serving discovery requests in relation to the

counterclaims. James claimed these acts violated 15 U.S.C. §§ 1692d, 1692e, and

1692f.

Wadas moved for summary judgment under Fed. R. Civ. P. 56, claiming that

she was not a “debt collector” within the meaning of the FDCPA. After a hearing on

the matter, the district court agreed, granting summary judgment in favor of Wadas.

Shadakofsky subsequently moved to dismiss the vicarious liability claim against her

under Fed. R. Civ. P. 12(b)(6) on the basis that she, as a principal, could not be held

liable if her agent, Wadas, was not held liable for the alleged FDCPA violations. The

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district court again agreed and granted the motion. It entered final judgment on all

claims in October 2012. This appeal followed.

James appeals only the district court’s grant of summary judgment.1 At issue

in this appeal is the district court’s interpretation of the term “debt collector” under

the FDCPA, and its conclusion that Wadas is not a “debt collector” because she does

not engage in debt collection “regularly.” We review the district court’s grant of

summary judgment de novo, applying the same legal standards as the district court.

E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037 (10th Cir. 2011). A “grant of

summary judgment must be affirmed if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Id. (internal quotation marks omitted). “[W]e consider the evidence in the

light most favorable to the non-moving party,” but “unsupported conclusory

allegations do not create a genuine issue of fact.” Id. (alterations, internal citations

and quotation marks omitted). Because James is pro se, we liberally construe his

filings, but we will not act as his advocate. See Garrett v. Selby Connor Maddux &

Janer, 425 F.3d 836, 840 (10th Cir. 2005).

1

James initially also appealed from the district court’s order granting

Shadakofsky’s motion to dismiss. On December 28, 2012, James and Shadakofsky

subsequently filed a stipulated motion to dismiss with prejudice the appealed claims

between them. This Court granted the motion. Accordingly, Shadakofsky is not a

party to this appeal. Although James raised the dismissal of his vicarious liability

claim against Shadakofsky as a claim of error in his Opening Brief, filed

December 10, 2012, we will not address this issue based on James’s and

Shadakofsky’s stipulated dismissal of appellate claims.

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II. Discussion

A. FDCPA

Congress enacted the FDCPA in 1977 with the express purpose to “eliminate

abusive debt collection practices by debt collectors, to insure that those debt

collectors who refrain from using abusive debt collection practices are not

competitively disadvantaged, and to promote consistent State action to protect

consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The Act regulates

interactions between consumer debtors and “debt collectors.” To achieve this end,

the FDCPA imposes three broad prohibitions. Johnson v. Riddle, 305 F.3d 1107,

1117 (10th Cir. 2002). First, a “debt collector may not engage in any conduct the

natural consequence of which is to harass, oppress, or abuse any person in connection

with the collection of a debt.” 15 U.S.C. § 1692d. Second, a “debt collector may not

use any false, deceptive, or misleading representation or means in connection with

the collection of any debt.” Id. § 1692e. And third, a “debt collector may not use

unfair or unconscionable means to collect or attempt to collect any debt.” Id.

§ 1692f. “Violation of these standards subjects debt collectors to civil liability . . . or

administrative enforcement by the Federal Trade Commission.” Johnson, 305 F.3d at

1117; see also 15 U.S.C. §§ 1692k, 1692l. Accordingly, a defendant can be held

liable for violating the FDCPA only if she is a “debt collector” within the meaning of

the FDCPA.

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Subject to exclusions not relevant here, the FDCPA defines the term “debt

collector” as “any person who uses any instrumentality of interstate commerce or the

mails in any business the principal purpose of which is the collection of any debts, or

who regularly collects or attempts to collect, directly or indirectly, debts owed or due

or asserted to be owed or due another.” 15 U.S.C. § 1692a(6).

In Heintz v. Jenkins, the Supreme Court determined that attorneys may qualify

as “debt collectors” under the FDCPA, holding that the Act applies to “attorneys who

‘regularly’ engage in consumer-debt collection activity, even when that activity

consists of litigation.” 514 U.S. 291, 292, 299 (1995). See also Johnson, 305 F.3d at

1117 (“Attorneys engaged in the collection of debts are debt collectors subject to

liability under the FDCPA.”). Thus, the FDCPA “applies to the litigating activities

of lawyers,” Heintz, 514 U.S. at 294, which, as other circuits have held, may include

the service upon a debtor of a complaint to facilitate debt collection efforts,

see Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1031-32 (9th Cir. 2010), or

statements in written discovery documents, see Sayyed v. Wolpoff & Abramson,

485 F.3d 226, 229, 231 (4th Cir. 2007). But the Heintz Court did not analyze, nor

have we, what constitutes “regularly” collecting debts or attempting to collect debts

within the meaning of the FDCPA’s definition of “debt collector” as it may apply to

an attorney or law firm engaged in debt collection activity or litigation. We do so

here.

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We begin by applying principles of statutory construction. In interpreting the

FDCPA, our task is to determine Congress’ intent, beginning with the plain language

of the statute itself. United States v. Handley, 678 F.3d 1185, 1189 (10th Cir. 2012).

If the language is clear, our inquiry ends. Id. If, however, the text is ambiguous, we

inquire further to discern Congress’ intent looking to the legislative history and

underlying public policy of the statute. Id. “[W]e read the words of the statute in

their context and with a view to their place in the overall statutory scheme.” Id.

(internal quotation marks omitted).

The FDCPA establishes two alternative predicates for “debt collector status”:

1) engaging in debt collection as the “principal purpose” of the entity’s business; or

2) engaging in debt collection “regularly.” Goldstein v. Hutton, Ingram, Yuzek,

Gainen, Carroll & Bertolotti, 374 F.3d 56, 61 (2d Cir. 2004); 15 U.S.C. § 1692a(6).

Our focus here is on the second prong of the FDCPA’s definition of “debt collector”

as one “who regularly collects or attempts to collect [a debt],” and, specifically, the

term “regularly.” 15 U.S.C. § 1692a(6) (emphasis added). The term “regularly”

means “[a]t fixed and certain intervals, regular in point in time. In accordance with

some consistent or periodical rule or practice.” Black’s Law Dictionary 1286

(6th Ed. 1990). In turn, the term “regular” means “steady or uniform in course,

practice, or occurrence. . . [,] [u]sual, customary, normal or general.” Id. at 1285.

Reviewing § 1692a(6) as a whole, it is evident that Congress “intended the ‘principal

purpose’ prong . . . to differ from the ‘regularly’ prong” of its definition of “debt

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collector.” See Garrett v. Derbes, 110 F.3d 317, 318 (5th Cir. 1997). As the Fifth

Circuit has explained,

a person may regularly render debt collection services,

even if these services are not a principal purpose of [the]

business. Indeed, if the volume of a person’s debt

collection services is great enough, it is irrelevant that

these services only amount to a small fraction of [the] total

business activity; the person still renders them ‘regularly.’

Id. Yet, the plain meaning of the term “regularly” does not by itself differentiate the

amount or frequency of debt collection that is a “regular” part of debt collection from

an amount or frequency of debt collection that is a “principal purpose” of debt

collection. And it is equally ambiguous regarding the amount of such debt collection

by an attorney or law firm necessary to qualify as a “debt collector” under the

FDCPA.

Turning then to the legislative history, as initially enacted, the FDCPA

exempted “any attorney-at-law collecting a debt . . . on behalf of and in the name of a

client” from the statutory definition of debt collector. See Fair Debt Collection

Practices Act of 1977, Pub. L. No. 95-109, § 803(6)(F), 91 Stat. 874, 875 (1977).

This was because “attorneys were only incidentally involved in debt collection

activities.” H.R. Rep. No. 99-405, reprinted in 1986 U.S.C.C.A.N. 1752, 1759.

In 1986, however, in response to the large increase in the number of attorneys

conducting debt collection, Congress repealed the attorney exemption. See

Pub. L. No. 99-361, 100 Stat. 768 (1986); see also H.R. Rep. No. 99-405, at 1752.

The legislative history reveals that Congress intended that the FDCPA apply to “any

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attorney who is in the business of collecting debts.” H.R. Rep. No. 99-405, at 1753

(emphasis added). However, it offers little guidance on what constitutes the

“regular” collection of debts by an attorney or law firm. But this much seems clear:

such debt collection cannot be isolated or incidental but must, to varying degrees, be

a significant aspect of the attorney’s business.

Other circuits to have addressed the issue of whether an attorney or law firm

“regularly” engages in debt collection such as to qualify as a “debt collector” within

the meaning of § 1692a(6) have not established a bright line test to resolve the

inquiry. See Scott v. Jones, 964 F.2d 314, 316 (4th Cir. 1992); Schroyer v. Frankel,

197 F.3d 1170, 1176 (6th Cir. 1999); Stojanovski v. Strobl & Manoogian, P.C.,

783 F.Supp. 319, 322 (E.D. Mich. 1992). Rather, as the Second Circuit explained,

this is a determination that “must be assessed on a case-by-case basis in light of

factors bearing on the issue of regularity.” Goldstein, 374 F.3d at 62. To this end,

the Goldstein court identified the following factors and considerations as relevant to

a regularity inquiry:

(1) the absolute number of debt collection communications

issued, and/or collection-related litigation matters pursued,

over the relevant period(s), (2) the frequency of such

communications and/or litigation activity, including

whether any patterns of such activity are discernible,

(3) whether the entity has personnel specifically assigned

to work on debt collection activity, (4) whether the entity

has systems or contractors in place to facilitate such

activity, and (5) whether the activity is undertaken in

connection with ongoing client relationships with entities

that have retained the lawyer or firm to assist in the

collection of outstanding consumer debt obligations.

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Facts relating to the role debt collection work plays in the

practice as a whole should also be considered to the extent

they bear on the question of regularity of debt collection

activity (debt collection constituting 1% of the overall

work or revenues of a very large entity may, for instance,

suggest regularity, whereas such work constituting 1% of

an individual lawyer’s practice might not). Whether the

law practice seeks debt collection business by marketing

itself as having debt collection expertise may also be an

indicator of the regularity of collection as a part of the

practice.

Id. at 62-63.

We agree with and adopt the standard set forth by the Second Circuit in

Goldstein. Although not an exhaustive list, we hold that courts must consider these

factors in determining whether an attorney or law firm “regularly” engages in debt

collection such as to qualify as a “debt collector” within the meaning of the FDCPA.

B. Wadas’s Status as a “Debt Collector”

With this analytical framework in mind, we now review the district court’s

entry of summary judgment on the basis that Wadas is not a “debt collector.” The

parties do not dispute, and James does not appeal, the district court’s finding that

debt collection is not a “principal purpose” of Wadas’s business. Accordingly, only

the district court’s finding regarding the regularity prong is at issue.

In making its determination, the district court adopted the analytical

framework of Hightower-Henne v. Gelman, No. 11-cv-01114-KMT-BNB, 2012 WL

95208 (D. Colo. Jan. 12, 2012), an unpublished district court opinion that, in turn,

relied on the factors identified in Goldstein. For example, the district court

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considered Wadas’s affidavit filed in support of her motion for summary judgment in

which Wadas averred the following: 1) she has never sent out a demand letter on

behalf of a debt collector; 2) she does not have any paralegals or employees hired for

the purpose of debt collection; and 3) she has no special programs, software, or other

devices to assist with debt collection activities. Additionally, the district court

considered Wadas’s responses to interrogatories wherein Wadas averred the

following: 1) throughout her legal career, Shadakofsky has been her only

debt-collector client; 2) in 2011, income generated as a result of representing

Shadakofsky was $1700; and 3) in the past ten years, of a total of 1789 cases, only

between six and eight were debt collection cases which represented less than one

percent of her total practice. Wadas also represented that since 1996 she has been

involved in eleven other debt collection cases in which she represented the debtor,

not the creditor. Based on the foregoing evidence, the district court determined that

there were “no indicia” that debt collection was either a principal purpose of Wadas’s

law practice or that Wadas “regularly” engaged in debt collection. Aplt. App.,

Vol. 1, at 272. Nor were there any discernible patterns, either through debt collection

or litigation, that would support a finding that Wadas engaged in debt collection

regularly.

We agree with the district court’s analysis. The record does not demonstrate

that Wadas engages in debt collection with any sort of regularity; indeed, over the

span of one decade Wadas engaged in only six to eight debt collection cases. Such

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debt collection activity is minimal. Although the fact that Wadas has an ongoing

relationship with Shadakofsky is a factor that would weigh in favor of “debt

collector” status, again, the volume of cases accepted from this client comprises only

a small portion of Wadas’s overall caseload. Other factors also weigh against a

finding that Wadas is a “debt collector.” For instance, Wadas has not issued debt

collection communications, and she does not have any system or personnel to assist

with debt collection activity. Accordingly, we agree with the district court that

Wadas does not qualify as a “debt collector” under the FDCPA.

On appeal, James challenges the district court’s conclusion on the independent

basis that the district court erroneously relied on Wadas’s affidavit and responses to

discovery interrogatories. See Aplt. Opening Br. at 8 (claiming that the affidavit is

“completely devoid of any evidence substantiating [Wadas’s] claims”). Summary

judgment is appropriate, however, if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c) (emphasis added). To the extent

James claims that it was impermissible for the district court to rely on Wadas’s

affidavit or her response to interrogatories, James is mistaken.

And Wadas was not required to further substantiate her affidavit – evidence

the district court was entitled to consider – with other evidence. As the moving

party, it was Wadas’s burden to come forward with prima facie evidence showing

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that she does not regularly engage in debt collection. See Celotex Corp. v. Catrett,

477 U.S. 317, 331 (1986) (The moving party has the burden of production to make a

prima facie showing that it is entitled to summary judgment). She did so. “[O]nce

[Wadas] carries this burden, [James] cannot rest upon his . . . pleadings, but must

bring forward specific facts showing a genuine issue for trial as to those dispositive

matters for which he . . . carries the burden of proof.” Garrison, 428 F.3d at 935. As

the plaintiff in an FDCPA action, James bore the burden of proving Wadas’s status as

a “debt collector.” See Goldstein, 374 F.3d at 60. Accordingly, James was required,

in responding to Wadas’s motion for summary judgment, “to make a showing

sufficient to support a determination that [Wadas] was a debt collector at the time of

the challenged communication.” Id. at 60-61.

The record confirms, and the district court correctly concluded, that James

presented little to no evidence contesting Wadas’s claim that she is not a “debt

collector.” In opposition to Wadas’s summary judgment motion, James argued that

Wadas held herself out as a debt collector by participating in a lawyer referral service

of the Wyoming State Bar. In support, he attached as evidence an exhibit identifying

the areas of practice claimed by Wadas on the Wyoming State Bar website. He

claimed below, and on appeal, that this factor supports a finding that Wadas is a

“debt collector.” Review of the exhibit demonstrates, however, that one of numerous

areas of practice listed is “Collections – Debtor.” Aplt. App., Vol. 1, at 247. The

exhibit suggests that Wadas holds herself out as representing debtors, not creditors.

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And James did not submit any other admissible evidence to support his claims.

“Mere allegations unsupported by further evidence . . . are insufficient to survive a

motion for summary judgment.” Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir.

2005). Accordingly, the scant evidence James submitted in opposition to summary

judgment is insufficient to create a genuine issue of material fact.

III. Conclusion

The judgment of the district court is affirmed.

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