DAVIS v. PORTFOLIO RECOVERY ASSOCIATES, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TIM DAVIS, et al., )

)

Plaintiffs, )

) Civil Action No. 21-166

v. ) Judge Nora Barry Fischer

)

)

PORTFOLIO RECOVERY ASSOCIATES, )

LLC, )

)

Defendant. )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiffs Tim Davis, John Alukonis, and Monalisa Hart sued Defendant Portfolio

Recovery Associates, LLC (“PRA”) for allegedly violating the Fair Debt Collection Practices Act

(“FDCPA”). After their cases were consolidated and at the close of discovery, both sides moved

for summary judgment. Presently before the Court are PRA’s Motion for Summary Judgment and

Brief in Support, (Docket Nos. 30, 31), PRA’s Concise Statement of Material Facts, (Docket No.

34), Plaintiffs’ Motion for Summary Judgment and Brief in Support, (Docket Nos. 32, 33), and

PRA’s Brief in Opposition to Plaintiffs’ Motion for Summary Judgment, (Docket No. 35). After

careful consideration of the parties’ positions and for the following reasons, PRA’s Motion [30] is

granted and Plaintiffs’ Motion [32] is denied, and the Court will enter judgment in favor of PRA.

II. FACTUAL BACKGROUND

The Court consolidated the three lawsuits filed against PRA because the material facts and

issues to be decided are nearly identical. (Docket No. 14). As such, the Court will primarily draw

from the undisputed evidence in Davis’ case and will discuss the evidence in Alukonis’ and Hart’s

cases only where it differs from Davis’ case. The evidence consists of exhibits attached to the

complaints, excerpts of deposition testimony by each individual plaintiff and a representative of

PRA, and documentary evidence submitted by PRA in its motion.

On April 19, 2019, a complaint was filed on behalf of PRA against Davis in Pennsylvania

state court. (Docket No. 1-1 at 15). On August 7, 2019, the law firm of Fenters Ward sent a letter

to PRA on behalf of Davis. (/d. at 17). An attorney from Fenters Ward entered an appearance in

the state court action on behalf of Davis the next day. (/d. at 14-15). The body of the letter is re-

produced in full below:

To Whom It May Concern:

Please accept this letter as confirmation of my representation of Tim E, Davis with a current

address of 1595 Axmann Rd., Bellefonte, PA 16823, My representation of the above-mentioned client

includes any related debt(s) and/or credit account(s) your company claims to have, sold, purchased and/or

assigned from yourself, another creditor, debt buyer or other entity as of the date of this letter (the

“Debts”). Please cease and desist any further communications with my client as it relates to the collection

of Debts.

According to my client, your company has been reporting the above-referenced accounts to

collection and/or credit agencies. My client denies owing Portfolio Recovery Associates, LLC any

amount of money and demands proof of liability, accounting and ownership of these alleged accounts.

The proof shall include any agreements and any amendments thereto, any other written or signed

documents agreed to by my client, as well as, a complete history of billing statements reflecting how you

calculated the current amount claimed, owed, reported to the collection and/or credit agencies and

complete copies of any assignment documentation evidencing your ownership rights to the specific

accounts.

Pursuant to the Consumer Financial Protection Act (CFPA) 12 U.S.C. 5533(a) and the Fair Debt

Collection Practices Act (FDCPA) 15 U.S.C. § 1692 et seg. we request that you provide additional

documents related to the Debt you claim is owed by our client:

1. the original account-level documentation reflecting all purchases, payments, or other

actual uses of the account;

2. adocument signed by our client evidencing the opening of the account forming the basis

for the debt:

3. the name of the creditor at the time of charge-off, including the name under which the

creditor did business with our client;

4. the last four digits of the account number associated with the debt at the time our client’s

last monthly account statement, or, if not available, at the time of charge-off; the charge-

off balance;

5. Portfolio Recovery Associates, LLC method of calculating any amount claimed in

excess of the charge-off balance:

6. a copy of the statement where Portfolio Reeovery Associates, LLC offered to provide

our client (within 30 days of a written request) with copies of a document signed by our

client evidencing the opening of the account forming the basis for the debt; and the

original account-level documentation reflecting a purchase, payment, or other actual use

of the account.

Please be advised that at all times relative hereto, we are disputing this debt under the FDCPA,

FCRA, FCEUA and/or the UTPCPL. AS SUCH YOU MUST 1) NOTIFY ANY CRAs YOU HAVE

FURNISHED INFORMATION TO THAT THIS TRADE LINE IS DISPUTED; 2) YOU MUST

CEASE ALL COLLECTION ATTEMPTS AND DELETE THE TRADE LINE UPON FINAL

DISMISSAL OF THE DEBT COLLECTION LAWSUIT IF JUDGMENT IS RENDERED IN

FAVOR OF DEFENDANT. You may direct the requested proof to my office at the address listed above.

YOU HAVE THIRTY (30) DAYS TO PROVIDE THE REQUESTED PROOFS. Ail future

correspondence or contact shall be directed to my office until my office provides written confirmation of

termination of legal representation, if such termination should ever occur. YOU MUST PROVIDE THIS

NOTICE TO ANY ASSIGNEE, TRANSFEREE OR SUBSEQUENT OWNER OF THIS OR ANY

DEBT. IF YOU FAIL IN ANY OF THESE REGARDS, YOU WILL BE SUBJECT TO

LIABILITY UNDER FEDERAL AND STATE CONSUMER PROTECTION LAWS.

(d.).

In particular, the letter from Fenters Ward stated that it represented Davis, directed all

future correspondence from PRA to go to Fenters Ward, and denied that Davis was liable to PRA.

The letter also asked PRA to “provide additional documents related to the Debt you claim is

owed by our client” and provided a numerical list of items. (/d.). Fenters Ward relied on federal

law, in particular 12 U.S.C. § 5533(a) and 15 U.S.C. § 1692, to make its demand for information

from PRA. (/d.). After Fenters Ward had sent its letter to PRA but before PRA had responded, the

judge in the state court action entered judgment in favor of Davis. (Docket No. 1-1 at 15, 24).

Despite the state court’s judgment, PRA responded to Fenters Ward in a letter dated August

29, 2019. (Docket No. 30-3). The letter was addressed to Fenters Ward at its mailing address and

referenced the account number associated with Davis’ alleged debt. (/d.). The text of the letter is

re-produced below:

file for this account:

Account holder's Name Provided By Seller: TIM E DAVIS

Account holder's Last 4 Digits of SSN: 3460

Date Account Opened Provided by Seller: 05/90/2012

DEPT 922

PO BOX 411

POBOX Portfolio Recovery Associates, LLC

08/29/2019

CHANGE SEAVICE REQUE:

rs ‘cco

: 473

Fa! eggagn abla Ataf DAA

FENTERS WARD

201 8 HIGHLAND AVE

STE 201

PITTSBURGH PA 15206

This letter is in reference to your client TIME DAVIS. wm □

ate

: Account Number: RO1e

The following Information is baing provided in response to Seller: CAPITAL ONE BANK (USA) NA.

ae ee os q the account Original Creditor: CAPITAL ONE BANK (USA) N.A.

above. umbe hOigand C¢ Creditor: PORTF

its proceeds were sold, assigned ant Weteteren tr the an eee ae OLIO RECOVERY ASSOCIATES, LLC

Seller to PRA, LLC on 05/22/2018. At the time of the sale,

the Seller provided an electronic file of its business records

containing information concerning the account; a summary □□

of which can be found below. Please contact us if you | Online: www.porttoliorecovery.com

aa a @ payment history of payments that

ave to thi nt si =

this ieee (© this account since our company purchased % By Phone: Call 1-800-772-1413

Sincerely, Disputes Department = By Mail:

Telephone: 1-800-772 1415 b@ PORTFOLIO RECOVERY ASSOCIATES, LLC

120 Corporate Boulavard, Norfolk VA 23502

This communication is from a debt collector but is not an attempt to collect a debt.

TAAIILAICD cet om Reverse Side ‘or — ne

(/d.).

Among other things, the letter provided the account holder’s name (i.e., Davis), the last

four digits of his social security number, and the date the account was opened by the seller. (/d.).

The letter then provided the name of the seller (Capital One Bank (USA) N.A.), the current creditor

(PRA), and the balance owed. (/d.). Below this information was a “Contact Us” table that included

a website address, 1-800 number, and mailing address of PRA. (Id.). Lastly, in a footer at the

bottom, the letter stated, “This communication is from a debt collector but is not an attempt to

collect a debt. Notice: See Reverse Side for Important Information.”1 (Id.). During his deposition,

Davis stated that PRA’s letter went to his counsel, not him. (Docket No. 30-2 at 10).

Alukonis and Hart also faced Pennsylvania state court lawsuits filed on behalf of PRA.

(Civil Action No. 21-193, Docket No. 1-2 at 18; Civil Action No. 21-199, Docket No. 1-1 at 16).

They also retained Fenters Ward who sent the same letter to PRA that it had sent on behalf of

Davis. (Civil Action No. 21-193, Docket No. 1-2 at 22-23; Civil Action No. 21-199, Docket No.

1-1 at 19-20). PRA responded to Fenters Ward with materially identical letters to the one it had

sent in Davis’ case. (Docket Nos. 30-4; 30-5 at 5; 30-6; 30-7 at 5). In Alukonis’ case, PRA’s letter

arrived before a state court judge entered judgment in his favor. (Civil Action No. 21-199, Docket

No. 1-1 at 17; Docket No. 30-4). In Hart’s case, a state court judge entered judgment in PRA’s

favor, and PRA’s response to Fenters Ward arrived shortly thereafter. (Civil Action No. 21-193,

Docket No. 1-2 at 20, 29; Docket No. 30-6).

III. PROCEDURAL HISTORY

Following the end of the lawsuits brought against them, Plaintiffs sued PRA in individual

state court actions for violating 15 U.S.C. § 1692e(10), a provision of the FDCPA. (Civil Action

No. 21-193, Docket No. 1; Civil Action No. 21-199, Docket No. 1; Docket No. 1). These cases

were removed and ultimately consolidated under Civil Action Number 21-166. (Docket No. 14).

All three plaintiffs made the same argument: the assertion in the footer of PRA’s letters was a

“false representation or deceptive means” used to collect a debt in violation of 15 U.S.C.

1 The parties did not include a “reverse side” of the letter in the record and do not discuss its

contents in their briefs.

§ 1692e(10). Plaintiffs contend that although PRA stated in the footer that that the letter was not

an attempt to collect a debt, in reality, the letter was an attempt to collect a debt, thus making the

assertion false.

After the parties completed discovery, both sides moved for summary judgment. (Docket

Nos. 30, 32). Both sides also filed briefs in support of their respective motions. (Docket Nos. 31,

33). PRA submitted a concise statement of materials facts, (Docket No. 34), but Plaintiffs failed

to submit same. Likewise, PRA responded to Plaintiffs’ motion, (Docket No. 35), but Plaintiffs

did not respond to PRA’s motion. No party submitted reply briefs. Accordingly, with briefing

complete, the Court considers the motions for summary judgment fully briefed and ripe for

disposition.

IV. LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). “A fact is

‘material’ under Rule 56 if its existence or nonexistence might impact the outcome of the suit

under the applicable substantive law.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d

Cir. 2019) (citations omitted). Further, “[a] dispute is ‘genuine’ if

‘a reasonable jury could return a verdict for the nonmoving party.’” Clews v. County of Schuylkill,

12 F.4th 353, 358 (3d Cir. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).

A party seeking summary judgment “must show that if the evidentiary material of record

were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving

party to carry its burden of proof.” Conboy v. U.S. Small Bus. Admin., 992 F.3d 153, 160 (3d Cir.

2021) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Once the moving party meets

its initial burden, the burden then shifts to the nonmovant who must set forth specific facts showing

a genuine issue for trial and may not rest upon the mere allegations, speculations, unsupported

assertions or denials of its pleadings.” Conboy, 992 F.3d at 160; see also Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In this regard, the non-movant must come

forward with more than “some metaphysical doubt as to the material facts.” Conboy, 992 F.3d at

160; see also Matsushita, 475 U.S. at 586-87.

In order to determine whether a genuine issue of material fact exists, the Court’s analysis

begins by a review of the parties’ filings to determine the realm of potentially disputed facts. As

such, all summary judgment filings must comply with Federal Rule of Civil Procedure 56, as well

as this Court’s companion Local Rule 56. Both rules “allow facts to be deemed admitted where

they are not properly opposed.” See Kelly v. DeJoy, No. 19-204, 2021 WL 914207, at *4 (W.D.

Pa. Mar. 10, 2021) (Hardy, J.); FED. R. CIV. P. 56(e) (“If a party fails to properly support an

assertion of fact or fails to properly address another party’s assertion of fact as required by Rule

56(c), the court may: . . . consider the fact undisputed for purposes of the motion.”); LCvR 56(E)

(“[M]aterial facts set forth in the moving party’s Concise Statement of Material Facts . . . which

are claimed to be undisputed, will for the purposes of deciding the motion for summary judgment

be deemed admitted unless specifically denied or otherwise controverted by a separate concise

statement of the opposing party.”).

V. DISCUSSION

Before reaching the merits of the summary judgment motions, the Court will first address

what set of undisputed material facts it will rely on to dispose of both motions and will define

which of Plaintiffs’ theories of liability are properly before it.

A. Preliminary Issues

1. Facts Deemed Admitted

The Court observes that PRA submitted a concise statement of material facts that it

supports with citations to the record. (Docket No. 34). Plaintiffs failed to respond with an opposing

statement of facts or submit their own statement of fact for their summary judgment motion such

that the facts are deemed admitted. FED. R. CIV. P. 56(e); LCvR 56(E). Nonetheless, they appear

to agree with the facts in PRA’s statement of facts in their brief supporting their motion for

summary judgment. (See Docket No. 33). Additionally, the parties’ motions address the same

issues, making it appropriate to consolidate discussion of the two motions. Given the filings before

it and the overlapping issues in the parties’ motions, the Court will rely on PRA’s unopposed

concise statement of material fact for both pending motions where the factual assertions are

supported by record citations. FED. R. CIV. P. 56(e); LCvR 56(E).

2. Plaintiffs’ Theory of Liability

In their complaints, Plaintiffs alleged that PRA violated the FDCPA with language in the

footer of its letters. In the footer, PRA stated that “[t]his communication is from a debt collector

but is not an attempt to collect a debt.” (Docket No. 30-3). According to Plaintiffs, PRA’s statement

disclaiming an attempt to collect a debt was a “false representation and deceptive means” because

the letter was, indeed, an attempt to collect a debt. (Docket Nos. 1-1 at 6,8; Docket No. 30-3).

At summary judgment and with discovery complete, however, Plaintiffs have changed

course from their original pleadings and apparently abandoned the footer theory. For Davis and

Hart, Plaintiffs now argue that PRA violated 15 U.S.C. § 1692e due to the timing of PRA’s letter.

(Docket No. 33 at 11). PRA’s letters reached Fenters Ward after the state court judge entered

judgments in favor of Davis and against Hart. (Civil Action No. 21-193, Docket No. 1-2 at 29;

Docket No. 1-1 at 15, 24). According to Plaintiffs, the letters would “clearly confuse” Davis and

Hart by making them think they still owed the alleged debts even they that had just prevailed in

court. (Docket No. 33 at 11). Of course, in Hart’s case, she had not prevailed in court, a fact

Plaintiffs overlook entirely. (Civil Action No. 21-193, Docket No. 1-2 at 20, 29; Docket No. 30-

6). In Alukonis’ case, where PRA’s letter reached Fenters Ward before the state court judge entered

judgment in Alukonis’ favor, Plaintiffs argue that the letter was “clearly an attempt to deceive Mr.

Alukonis by having him believe that [PRA] had evidence to support its allegation that Mr.

Alukonis owed a debt.” (Docket No. 33 at 11; see also Civil Action No. 21-199, Docket No. 1-1

at 17; Docket No. 30-4). In other words, Plaintiffs accuse PRA of bluffing and filing a meritless

state court action against Alukonis.

Plaintiffs’ two theories of § 1692e(10) liability at summary judgment are entirely different

than the theory they pled in their complaints. In those pleadings, Plaintiffs focus on the supposedly

deceptive nature of the footer. However, their summary judgment brief focuses on the timing of

when PRA sent the letters or that PRA was supposedly bluffing when it claimed that it had

evidence of Alukonis’ debt. It is well established that “[a] plaintiff may not amend her complaint

through argument in a brief opposing summary judgment.” Nykiel v. Borough of Sharpsburg, 778

F. Supp. 2d 573, 587 (W.D. Pa. 2011) (Lancaster, J.); see Liberty Lincoln-Mercury, Inc. v. Ford

Motor Co., 676 F.3d 318, 326 (3d Cir. 2012). Rather, “the proper procedure for [a] plaintiff to

assert a new claim is to amend the complaint in accordance” with Federal Rule of Civil Procedure

15, something Plaintiffs have not done here. Nykiel, 778 F. Supp. 2d at 587. Accordingly, the Court

finds that Plaintiffs’ two new theories put forward in Plaintiffs’ summary judgment brief are

procedurally barred and will grant summary judgment to PRA on this basis alone. See Carney v.

Goldman, Civ. No. 15-260, 2018 WL 24417667, at *6 (D.N.J. May 30, 2018) (granting summary

judgment to a debt collector on certain FDCPA theories because the plaintiff never articulated

these theories in its pleadings). With that said, the Court will continue its analysis and address the

merits of all of Plaintiffs’ FDCPA theories of liability in the next section.

B. Merits of Plaintiffs’ FDCPA Claims

Even if Plaintiffs’ claims were not procedurally barred, they would also fail on the merits.

To that end, after careful review of the record and for the following reasons, the Court finds that

(1) PRA’s letter was not a “representation or means” used “in connection with the collection of” a

debt, and (2) PRA’s letter was not “false or deceptive.” Therefore, Plaintiffs’ motion for summary

judgment will be denied and PRA’s motion granted, and the Court will enter judgment in PRA’s

favor.

Section 1692e states that a “debt collector may not use any false, deceptive, or misleading

representation or means in connection with the collection of any debt.” As relevant to Plaintiffs’

complaints, it specifically prohibits “[t]he use of any false representation or deceptive means to

collect or attempt to collect any debt.” § 1692e(10). The FDCPA defines a “consumer” as “any

natural person obligated or allegedly obligated to pay any debt.” § 1692a(3). In turn, the term

“debt” means “any obligation or alleged obligation of a consumer to pay money arising out of a

transaction in which the money, property, insurance, or services which are the subject of the

transaction are primarily for personal, family, or household purposes, whether or not such

obligation has been reduced to judgment.” § 1692a(5). Lastly, “debt collector” means “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.” § 1692a(6).

To succeed in an FDCPA lawsuit given the statutory text, “a plaintiff must prove that (1)

she is a consumer, (2) the defendant is a debt collector, (3) the defendant’s challenged practice

involves an attempt to collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a

provision of the FDCPA in attempting to collect the debt.” Douglass v. Convergent Outsourcing,

765 F.3d 299, 303 (3d Cir. 2014).

1. Whether PRA used a “representation or means” to collect a debt

The parties focus much of their attention on the third element that Plaintiffs must establish:

whether PRA’s letters were a “representation or means” sent “in connection with the collection

of” a debt. 15 U.S.C. § 1692e; see Douglass, 765 F.3d at 303. If a letter does not qualify as “debt

collection activity,” it cannot violate the FDCPA. See McLaughlin v. Phelan Hallinan & Schmieg,

LLP, 756 F.3d 240, 245 (3d Cir. 2014). The Third Circuit has explained that “activity undertaken

for the general purpose of inducing payment” satisfies § 1692e’s debt collection condition. Id. A

letter “need not contain an explicit demand for payment to constitute debt collection activity.” Id.

at 245-46. Letters “that include discussions of the status of payment, offers of alternatives to

default, and requests for financial information may be part of a dialogue to facilitate satisfaction

of the debt and hence can constitute debt collection activity.” Id. Also, a business “that identifies

itself as a debt collector, lays out the amount of the debt, and explains how to obtain current payoff

quotes has engaged in a communication related to collecting a debt.” Id. at 246. Lastly, letters sent

to a debtor during litigation can qualify as debt collection activity. Simon v. FIA Card Servs., N.A.,

732 F.3d 259, 267 (3d Cir. 2013).

As the Court sees it, while PRA’s letter “identifies” PRA as a debt collector and “lays out

the amount of the debt,” nothing else about the letters matches the factors put forward by the Third

Circuit. See McLaughlin, 756 F.3d at 245; (Docket Nos. 30-3, 30-4, 30-6). The letters do not

demand payment, offer alternatives to default, or request financial information. See id. In fact, the

letters make no request of any kind from the debtors. (Docket Nos. 30-3, 30-4, 30-6). The letters

contain contact information, but do not offer any means of making payment on the alleged debt

and expressly disclaim that the letter is an “attempt to collect a debt.” Id.

Instead of serving as a means of “inducing payment,” the Court finds that the letters are

merely a brief response to Fenters Ward’s request for information regarding the disputed debts.

The letters provide the account number, name of the selling creditor, balance allegedly due, date

the credit account opened, date PRA obtained the account, and the last four digits of the debtor’s

social security number. (Docket Nos. 30-3, 30-4, 30-6). The letter ends by saying “[p]lease contact

us if you would like to receive a payment history of payments that have posted to this account

since our company purchased this account.” (Docket Nos. 30-3, 30-4, 30-6). All of this information

came as a response to Fenters Ward’s request and does not constitute an attempt to “induc[e]

payment.” See McLaughlin, 756 F.3d at 245. Rather, the letter is “merely a ministerial response to

a debtor inquiry, rather than part of a strategy to make payment more likely.” Simon, 732 at 265

(internal quotation marks omitted) (quoting Grden v. Leikin Ingber & Winters PC, 643 F.3d 169,

173 (6th Cir. 2011)).

In Grden, a case cited favorably by the Third Circuit, the Sixth Circuit held that a debt

collector’s statement made to a debtor over the phone when the debtor had called asking for

information about his debt was not debt collection activity. See 643 F.3d at 171, 173. The “decisive

point,” according to the Sixth Circuit, was the fact that the debt collector communicated with the

debtor “only after [the debtor] called.” Id. at 173. In other words, given that the debt collector was

responding to an inquiry rather than initiating a conversation about the debt, the Sixth Circuit did

not view the communication as an attempt by the debt collector to induce payment. See id.

Similarly, the Seventh Circuit held that informing a debtor of “the current status” of an account is

not an attempt to collect a debt. Bailey v. Sec. Nat’l Serv. Corp., 154 F.3d 384, 386, 388-89 (7th

Cir. 1998).

The Court views the present case as similar to Grden. Like in Grden, the PRA sent its letter

“only after” Fenters Ward sent its own letter asking for information about the debts. Grden, 643

F.3d at 173. The context in which PRA sent its letters shows it was responding to Fenters Ward,

not attempting to induce payment. As such, no reasonable jury could find that PRA’s letters were

sent “in connection with the collection of” Plaintiffs’ debts, and the Court will grant summary

judgment to PRA for this reason. 15 U.S.C. § 1692e; see Block v. Seneca Mortgage Serv., 221 F.

Supp. 3d 559, 585-86 (D.N.J. 2016) (holding that a debt collector’s response to a debtor’s phone

call inquiring about a debt cannot, as a matter of law, qualify as a statement made in connection

with the collection of a debt).

2. Whether PRA’s letter was a “false representation or deceptive means”

The Court now turns to whether PRA’s letters were “false” or “deceptive” in violation of

§ 1692e(10). See Douglass, 765 F.3d at 303. The Court will first address the applicable legal

standard and then discuss the merits of Plaintiffs’ claim.

a. The Competent Attorney Standard

In the typical FDCPA case, courts assess whether a debt collector’s behavior could deceive

or mislead a hypothetical “least sophisticated debtor” and put aside the question of whether the

plaintiff herself was deceived or misled. Jensen v. Pressler & Pressler, 791 F.3d 413, 418-19 (3d

Cir. 2015). When a debt collector interacts with a debtor’s attorney instead of the debtor, however,

many courts have endorsed assessing the debt collector’s behavior from the standard of a

“competent attorney.” Demarais v. Gurstel Chargo, P.A., 869 F.3d 685, 695 (8th Cir. 2017). The

Third Circuit has not yet had the opportunity to analyze the competent attorney standard, but it has

been applied by lower courts throughout the Third Circuit’s jurisdiction. See e.g., Elnaggar v.

Allard, 19-cv-3743, 2021 WL 1224062, at *3 (E.D. Pa. Apr. 1, 2021); Fratz v. Goldman &

Warshaw, P.C., 11-cv-2577, 2012 WL 4931469, at *3 n.5 (E.D. Pa. Oct. 16, 2012) (collecting

cases using the competent attorney standard in the Third Circuit).

The Court is persuaded by the reasoning in the various judicial opinions to apply the

competent attorney standard here. As Judge Posner explained, attorneys possess legal training that

layman-debtors do not enjoy, giving attorneys a greater level of knowledge and sophistication

regarding what steps a debt collector can lawfully pursue to collect a debt. Evory v. RJM

Acquisitions Funding L.L.C., 505 F.3d 769, 774-75 (7th Cir. 2007) (observing that an attorney

“would not have to be an expert on the Fair Debt Collection Practices Act to be able to look it up

and discover what” rights a debtor enjoys against unfair and abusive collection practices); Dikeman

v. Nat’l Educs., Inc., 81 F.3d 949, 953 (10th Cir. 1996) (“The legal implications of communicating

with a debt collector would be especially within the professional competence of a lawyer hired to

represent a client’s interests.”). Accordingly, the Court will apply the competent attorney standard

when assessing whether PRA violated § 1692e(10) because PRA sent its letter to counsel rather

than to the Plaintiffs themselves. (Docket Nos. 30-3, 30-4, 30-6).

b. Application of the Competent Attorney Standard

After studied consideration, the Court holds that PRA’s letter would not deceive or mislead

a competent attorney under all of the theories put forward by Plaintiffs, including the one pled in

their complaints or those they have attempted to bring at summary judgment. The Third Circuit

has emphasized that “[a] debtor simply cannot be confused, deceived, or misled by an incorrect

statement unless it is material.” Jensen, 791 F.3d at 421. Additionally, “a statement in a

communication is material if it is capable of influencing the decision” of the recipient, here Fenters

Ward which received the letter. Id.

In the Court’s view, PRA’s letter would not influence the decision-making process of a

competent attorney receiving a letter in response to her own request for information that contained

a footer stating “[t]his communication is from a debt collector but is not an attempt to collect a

debt.” (Docket No. 30-3). A competent attorney would interpret the letter merely as a response to

her request during the course of litigation, not as a demand for payment or anything else. See

Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 33 (3d Cir. 2011) (applying least sophisticated

consumer standard and rejecting argument that a letter implied that a debt collector would initiate

litigation when the letter made no mention of litigation); Moyer v. Patenaude & Felix, A.P.C., 991

F.3d 466, 471 (3d Cir. 2021) (concluding that the plaintiff “reads into the [letter] an implication

that it does not create,” and thus the letter did not violate § 1692e(10)).

Likewise, a competent attorney would not become confused or alter how she represents a

debtor if she received PRA’s letter after a court had entered judgment against the debt collector in

litigation, as happened to Davis and as Plaintiffs mistakenly believe happened to Hart. Any

competent attorney would understand that the state court’s entry of judgment meant that the debtor

did not have to pay the debt, regardless of what a late-arriving informational letter from the debt

collector might say. Elnaggar, 2021 WL 1224062, at *4 (explaining that “[i]t is not reasonable to

infer that Plaintiff or his attorney were misled or deceived about the character, amount, or legal

status of the debt” when “the parties had been actively engaged in litigation related to the debt in

question”); Moyer, 991 F.3d at 471. Reinforcing this finding is the fact that Plaintiffs’ counsel,

Fenters Ward, demanded the information while citing PRA’s purported federal statutory obligation

under 12 U.S.C. § 5533 requiring debt collectors to provide such information upon request from a

debtor. (Docket No. 1-1 at 14-15). All told, Plaintiffs’ counsel would not become confused by an

informational letter that it demanded and which PRA was allegedly obligated to provide.

For Alukonis’ situation, where PRA’s letter arrived before the state court’s entry of

judgment in his favor, no one (let alone a competent attorney) would be confused or deceived into

believing that PRA “had evidence to support its allegations” of an outstanding debt when it did

not. (Docket No. 33 at 11). After close inspection of the record, the Court finds that the record

reveals nothing about why the state court entered judgment in Alukonis’ favor or whether PRA

possessed a legally enforceable debt. Without evidence of the debt’s validity (or lack thereof),

Plaintiffs have not shown that the letter was a “false representation” or “deceptive means” because

Plaintiffs have not shown that the debt was invalid when Fenters Ward received the letter. Cf. Blair

v. Fed. Pac. Credit Co., LLC, No. 20-4100, 2021 WL 4398665, at *6 (D.N.J. Sept. 27, 2021)

(“That a debt is not legally enforceable does not render it nonexistent.”). If the debt was still valid

when Fenters Ward received the letter, then the letter could not be false or deceptive.

In sum, given that PRA’s letters were not false or deceptive under any theory put forward

by Plaintiffs, the Court grants summary judgment in favor of PRA.2

VI. CONCLUSION3

2 Given the analysis above, the Court will not address the parties’ dispute regarding whether

Defendant is a debt collector and whether it was attempting to collect a debt. (Docket Nos. 31 at

9; 35 at 2-4).

3 Although they do not pursue it in their motion or brief, Plaintiffs alleged in their complaints

that PRA’s letter also violated 15 U.S.C. § 1692d’s prohibition on “engag[ing] in any conduct the

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

collection of a debt.” While Plaintiffs have apparently abandoned this claim, for the sake of

completeness, the Court finds that PRA’s boilerplate letter responding to Fenters Ward’s request

for information was not harassing, oppressive, or abusive. The letter contains no rude language or

implied threats and is a far cry from the type of behavior prohibited in § 1692d such as threatening

violence or using profane language.

Based on the foregoing, Plaintiffs’ Motion for Summary Judge [32] is hereby DENIED

and PRA’s Motion for Summary Judgment [30] is hereby GRANTED. An appropriate order

follows.

s/Nora Barry Fischer

Nora Barry Fischer

Senior U.S. District Judge

Date: January 14, 2022

cc/ecf: All counsel of record.