# Brown v. Smith Rouchon & Associates Inc

> District Court, N.D. Alabama · March 31, 2022

URL: https://www.frixlaw.com/law-library/cases/9991032

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

COLIN BROWN, individually, and }
on behalf of all other similarly }
situated consumers, }
}
Plaintiff, } Case No.: 2:19-cv-00705-MHH
}
v. }
}
SMITH, ROUCHON & }
ASSOCIATES, INC., }

Defendant.

MEMORANDUM OPINION
Colin Brown filed this putative class action against Smith, Rouchon &
Associates (SRA) after receiving a collection letter regarding a personal medical
debt. Mr. Brown alleges that the contents of the letter violated 15 U.S.C. §§ 1692e,
e(10), and 1692g(b) of the Fair Debt Collection Practices Act. (Doc. 1). SRA moved
for judgment on the pleadings, or, alternatively, for summary judgment. (Doc. 8).
After reviewing the motion, the Court deemed it a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 10).
The Court reviewed the parties’ extensive briefing on the motion and
concluded that under 15 U.S.C. § 1692g(b), Mr. Brown “adequately alleged a
violation of § 1692g(b) because [SRA’s] letter seems to offer a consumer only two
options – payment or a statement of reasons why the debt is incorrect, which is
inconsistent with the validation notice in § 1692g(a) and the requirement of §

1692g(b) that a debt collector, upon receipt of a written request from a consumer,
mail to the consumer verification of the debt without first requiring the consumer to
state in [a] written request why he believes the debt, or part of the debt, is invalid.”

(Doc. 36, pp. 9–10). Mr. Brown also adequately alleged a violation of 15 U.S.C. §
1692e because the language in SRA’s letter that “calls for a statement of reasons
why the debt is invalid is misleading in that it suggests to a consumer that he must
explain why a debt is invalid before he receives from the debt collector in the mail

verification of the debt. A consumer has no such obligation under the FDCPA.”
(Doc. 36, p. 10). Accordingly, the Court denied SRA’s motion to dismiss. (Doc.
36, p. 10).

SRA moved again to dismiss, or, alternatively, for the Court to reconsider,
arguing that Mr. Brown lacked Article III standing. (Doc. 44). In its motion, SRA
cited Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990 (11th Cir. 2020). SRA
argued that in Trichell, the Eleventh Circuit overruled Church v. Accretive Health,

Inc., 654 Fed. Appx. 990 (11th Cir. 2016), and concluded that a plaintiff must suffer
an injury to have standing to sue under the FDCPA. (Doc. 44, pp. 2–3). In response,
Mr. Brown filed an amended complaint. (Docs. 66, 70).
SRA now has moved to dismiss Mr. Brown’s amended complaint under
Federal Rules of Civil Procedure 12(b)(1) (standing) and 12(b)(6) (failure to state a

claim), or, alternatively, for summary judgment under Rule 56. (Doc. 71). Mr.
Brown also has asked the Court to consider intervening authority in Hunstein v.
Preferred Collection & Mgmt. Servs., Inc., 994 F.3d 1341 (11th Cir. 2021),1 and

Losch v. Nationstar Mortg. LLC, 995 F.3d 937 (11th Cir. 2021). (Doc. 79).
To resolve these motions, the Court first identifies the relevant allegations in
Mr. Brown’s amended complaint. Then the Court reviews the standards that apply
to SRA’s alternative motions and evaluates Mr. Brown’s amended complaint under

those standards.
I.
In his amended complaint, Mr. Brown alleges that in October 2018, SRA sent

him a “dunning letter” which states: “The purpose of this notice is [to] give you an
opportunity to respond to the described debt claim and make arrangements to either
pay it or state your reasons why it may be incorrect.” (Doc. 70, p. 2, ¶¶ 8–9). The
letter contains a mandatory validation notice:

Unless you notice [sic] this office within 30 days after receiving this
notice that you dispute the validity of this debt or any portion thereof,
this office will assume this debt is valid. If you notify this office in

1 The Hunstein opinion was vacated by Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 17
F.4th 1016 (11th Cir. 2021), which in turn was vacated by Hunstein v. Preferred Collection &
Mgmt. Servs., Inc., 17 F.4th 1103 (11th Cir. 2021). The Eleventh Circuit has voted to rehear the
case en banc.
writing within 30 days from receiving this notice that you dispute the
validity of this debt or any portion thereof, this office will obtain
verification of the debt or obtain a copy of a judgment and mail you a
copy of such judgment or verification. If you request in writing within
30 days after receiving this notice this office will provide you with the
name and address of the original creditor, if different from the current
creditor.

(Doc. 70, p. 2, ¶ 10).

Mr. Brown alleges that “[t]his language demands more than a simple dispute
that the FDCPA requires” and improperly shifts the burden from the debt collector
to the consumer to state why the debt is incorrect. (Doc. 70, p. 2, ¶¶ 11–12).
According to Mr. Brown, this language “overshadows and is inconsistent with the
validation notice in violation of the FDCPA.” (Doc. 70, p. 3, ¶ 13). Mr. Brown
alleges that after he reviewed SRA’s letter, he “misunderstood his right to dispute
the debt as imposing an affirmative obligation upon him as to why the debt was not
legitimate.” (Doc. 70, p. 3, ¶ 14). “Therefore, unable to establish evidence that the
debt was not owing, [Mr. Brown] did not dispute the debt until after employing a
credit advisor for assistance concerning his dispute rights.” (Doc. 70, p. 3, ¶ 14).
In its current motion, SRA challenges Mr. Brown’s assertion that he had to
hire a credit advisor to help him understand the confusing letter and dispute the debt.
In other words, SRA challenges the allegation that Mr. Brown added to his initial
complaint to establish Article III injury. (Doc. 71, pp. 1–2, ¶ 2). SRA asserts that

the “entire suit rests [on] Brown’s professed confusion about his rights to dispute a
debt when we all know in truth he was never confused.” (Doc. 72, p. 9). According
to SRA, because Mr. Brown was not confused about his right to dispute the debt, he

did not need to hire a consultant to educate him about his rights, and therefore the
expense of hiring the consultant cannot be considered injury for purposes of
standing. (Doc. 72, p. 21).2

II.
“Under Article III of the Constitution, the jurisdiction of a federal court is
limited to ‘cases’ and ‘controversies.’” Tsao v. Captiva MVP Rest. Partners, LLC,
986 F.3d 1332, 1337 (11th Cir. 2021) (citing Wilding v. DNC Servs. Corp., 941 F.3d

1116, 1124 (11th Cir. 2019)). “To satisfy the ‘case’ or ‘controversy’ requirement, a
plaintiff in a matter must have standing to sue.” Tsao, 986 F.3d at 1337 (citing
Spokeo, Inc. v. Robins, 578 U.S. 330, 337–38 (2016)). To have standing, a plaintiff

must establish: “(1) an injury in fact (2) that is fairly traceable to the defendant’s
conduct and (3) that is redressable by a favorable decision.” Laufer v. Arpan LLC,
No. 20-14846, -- F.4th --, 2022 WL 906511, at *2 (11th Cir. Mar. 29, 2022) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “A plaintiff at the pleading

stage, as the party invoking federal jurisdiction, bears the burden of establishing

2 SRA also argues that Mr. Brown’s claim under the FDCPA is moot because SRA validated and
verified the debt as required by the FDCPA. (Doc. 72, pp. 4–5). This argument overlooks the fact
that Mr. Brown’s alleged injury is that he was confused by the collection letter and retained a
consultant to advise him of his rights. The fact that SRA ultimately validated the debt does not
redress the fee that Mr. Brown allegedly spent to hire a consultant.
these elements by alleging facts that ‘plausibly’ demonstrate each element.” Tsao,
986 F.3d at 1337 (quoting Trichell, 964 F.3d at 996).

Of the standing elements, SRA argues only that Mr. Brown fails to allege an
injury. (Doc. 72, p. 2). “At the pleading stage, ‘general factual allegations of injury’
are enough.” Tsao, 986 F.3d at 1337 (quoting Lujan, 504 U.S. at 561). “But this

does not mean that any allegations of injury can push a plaintiff across the standing
threshold. Rather, a plaintiff must set forth general factual allegations that ‘plausibly
and clearly allege a concrete injury,’ and that injury must be ‘actual or imminent,
not conjectural or hypothetical.’” Tsao, 986 F.3d at 1337–38 (internal citations

omitted) (emphasis in Tsao).3 Tangible injuries—such as “straightforward
economic injuries”—generally are concrete. Tsao, 986 F.3d at 1338; see also
Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 926 (11th Cir. 2020)

(“Tangible harms are the most obvious and easiest to understand; physical injury or
financial loss come to mind as examples.”). The Eleventh Circuit has noted that
concrete tangible injury in the context of the FDCPA and debt collection letters may
include making “payments in response to the defendants’ letters—or even [wasting]

time or money in determining whether to do so.” Trichell, 964 F.3d at 997. On its
face, Mr. Brown’s allegation that he was confused by the debt collection letter and

3 An injury must also be particularized, which means that it “affect[s] the plaintiff in a personal
and individual way.” Laufer, 2022 WL 906511, at *2 (quoting Lujan, 504 U.S. at 560 n.1).
retained a credit advisor for assistance constitutes a concrete and particularized
injury for Article III standing. For this reason, the Court denies SRA’s Rule 12(b)(6)

motion to dismiss because for a 12(b)(6) motion, the Court must accept the plaintiff’s
allegations as true and construe them in the light most favorable to the plaintiff.
Newbauer v. Carnival Corp., 26 F.4th 931, 934 (11th Cir. 2022) (quoting Chaparro

v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012)).
III.
“In general, if it considers materials outside of the complaint, a district court
must convert [a] motion to dismiss into a summary judgment motion,” SFM

Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010)
(citing FED. R. CIV. P. 12(b)), but a district court “may consider an extrinsic
document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not

challenged,” SFM Holdings, 600 F.3d at 1337 (citing Day v. Taylor, 400 F.3d 1272,
1276 (11th Cir. 2005)).
SRA asks the Court to consider several pieces of extrinsic evidence outside of
the complaint: “audio recordings of two phone calls . . . which Plaintiff placed to

SRA in response to the [] collection letter”; “the written contract signed by the
Plaintiff giving rise to the . . . debt”; “documentary proof SRA timely ‘validated’
and ‘verified’ the . . . debt[]”; “Embolden Solutions, LLC’s Alabama corporate

registration identifying ‘Colin Brown’ as the registered agent”; “a copy of [a short]
YouTube video [allegedly] uploaded by Mr. Brown entitled ‘Embolden Solutions
LLC Credit Repair Welcome’”; and “screen captures of Embolden Solutions LLC’s

website . . . .” (Doc. 72, pp. 4–6).4
The evidence most relevant to the question of Article III injury is the audio
recordings of two phone calls which Mr. Brown placed to SRA. Though the

authenticity of the recordings is not contested, the recordings are not central to Mr.
Brown’s claim in the amended complaint which centers on whether the collection
letter sent to Mr. Brown violated certain provisions of the FDCPA. Therefore, the
Court cannot consider the evidence in conjunction with SRA’s Rule 12(b)(6) motion.

See Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003) (“[T]he district
court could not have considered Appellees’ motion under Rule 12(b)(6), because in
rendering its decision the court relied on extrinsic evidence outside the pleadings. . . .

The more germane question is whether the district court should have reviewed the
motion under Rule 56 instead of Rule 12(b)(1).” (internal citations omitted)). But

4 Exhibits A, B, C, and D—the recordings, validation, and contract—were submitted with a
supporting affidavit in the motion to dismiss or for summary judgment filed prior to Mr. Brown’s
amended complaint. (Doc. 56). Exhibits E, F, and G—the entity registration, YouTube video,
and website screenshots—were submitted without an affidavit in the pending motion to dismiss or
for summary judgment. (Doc. 71). Mr. Brown argues that Exhibits E, F, and G are unauthenticated
hearsay. (Doc. 75, p. 10). The Court does not need to consider these documents to resolve the
motion; Mr. Brown acknowledges that he started Embolden Solutions, LLC in January 2017 and
that the “company focuses on credit repair and sending disputes to Credit Reporting Agencies.”
(Doc. 84, p. 1, ¶¶ 2–3).
the Court may consider the evidence when evaluating SRA’s Rule 12(b)(1) and Rule
56 motions.

The distinction between Rule 12(b)(1) and Rule 56 is important because the
standards differ significantly. With its evidence, SRA challenges the credibility of
Mr. Brown’s injury allegation. (See Doc. 71, pp. 1–2, ¶ 2 (“Plaintiff had already

disputed the debt before allegedly hiring his credit advisor.”); Doc. 78, pp. 8–9, 12
(“Plaintiff’s claim he needed a credit advisor to help him dispute a debt he already
disputed . . . is simply not true . . . . Plaintiff is alleging that he had an actual, existing
confusion about his rights under the FDCPA. But he is not being honest.”)). The

Eleventh Circuit has explained:
Attacks on subject matter jurisdiction, which are governed by Rule
12(b)(1), come in two forms: facial or factual attack. Lawrence v.
Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990). A “facial attack”
challenges whether a plaintiff “has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in his complaint are
taken as true for the purposes of the motion.” Id. at 1529 (quotation
marks omitted). A “factual attack,” in contrast, challenges the existence
of subject matter jurisdiction irrespective of the pleadings, and extrinsic
evidence may be considered. Id. A district court evaluating a factual
attack on subject matter jurisdiction “may proceed as it never could” at
summary judgment and “is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.” Id. (quotation marks
omitted).

Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1230 (11th Cir. 2021). If the Court
construes SRA’s factual attack on subject matter jurisdiction under Rule 12(b)(1),
the Court may “make credibility determinations and weigh the evidence.” Kennedy,
998 F.3d at 1232 (citing Lawrence, 919 F.2d at 1529). On the other hand, a district
court:

should only grant summary judgment under Rule 56 where the record
evidence, viewed in the light most favorable to the non-moving party,
shows that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. Fed. R. Civ.
P. 56(c). In ruling on a Rule 56 motion, the district court may not weigh
the evidence or find facts. Instead, the court’s role is limited to deciding
whether there is sufficient evidence upon which a reasonable juror
could find for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Morrison, 323 F.3d at 924. Under Rule 56, the Court must view the evidence in the
light most favorable to Mr. Brown and leave credibility decisions for a factfinder if
Mr. Brown’s claim survives SRA’s summary judgment motion.
A district court may “rely on the Rule 12(b)(1) standard when addressing a
jurisdictional challenge that does not implicate the merits of a plaintiff’s cause of
action,” but when standing is “inextricably intertwined” with the merits of a claim,
“the proper course [is] for the district court to find that jurisdiction exists and deal
with [the] motion as a direct attack on the merits of [the] case.” Kennedy, 998 F.3d
at 1230 (citing Morrison, 323 F.3d at 925).
This refusal to treat indirect attacks on the merits as Rule 12(b)(1)
motions provides, moreover, a greater level of protection for the
plaintiff who in truth is facing a challenge to the validity of his claim:
the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule
56 . . . both of which place great restrictions on the district court’s
discretion. . . .
Morrison, 323 F.3d at 925 (quoting Garcia v. Copenhaver, Bell & Assocs., M.D.’s,
P.A., 104 F.3d 1256, 1261 (11th Cir. 1997)). Therefore, if SRA’s motion on Article

III standing implicates the merits of Mr. Brown’s FDCPA claim, the Court must
construe the motion under Rule 56 and apply the summary judgment standard.
“[J]urisdiction becomes intertwined with the merits of a cause of action when

‘a statute provides the basis for both the subject matter jurisdiction of the federal
court and the plaintiff’s substantive claim for relief.’” Morrison, 323 F.3d at 926
(quoting Garcia, 104 F.3d at 1262). Morrison and Garcia addressed employee and
employer status under the FMLA and ADEA, respectively. The statutes had

separate sections in which employee/employer was a threshold jurisdictional
question and an element of a prima facie case. As a result, the district court had to
evaluate evidence of injury under Rule 56, not Rule 12(b)(1). See Morrison, 323

F.3d at 927–28 (“The question of ‘eligible employee’ status implicates both
jurisdiction and the merits, and is properly reserved for the finder of fact.”); Garcia,
104 F.3d at 1266 (“Having determined that the motion to dismiss for lack of subject
matter jurisdiction involved a ‘factual’ attack and the determination of whether [the

defendant] is an ‘employer’ under ADEA provides the basis for both subject matter
jurisdiction and the substantive claim for relief, the summary judgment standard
must be applied, unless plaintiff’s claim was clearly immaterial or insubstantial.”).
On the other hand, in Kennedy, the Eleventh Circuit found that a district court
correctly proceeded under Rule 12(b)(1). Kennedy, 998 F.3d at 1230. The plaintiff

asserted an ADA claim; the jurisdictional challenge was to Article III standing for
injunctive relief which required a showing of real and immediate future injury.
Kennedy, 998 F.3d at 1230–31. No party contended that the ADA “was

inapplicable,” and there was not a “real dispute as to whether [the plaintiff’s]
complaint state[d] a prima facie claim for a violation of the ADA.” Kennedy, 998
F.3d at 1231. Therefore, the issue of Article III standing to pursue injunctive relief
was distinct from cases like Morrison. “[S]tanding to pursue injunctive relief—

unlike, say, whether a defendant company qualifies as an ‘employer’ under a
particular statute—has nothing to do with whether [the defendant] is subject to the
ADA or has violated it.” Kennedy, 998 F.3d at 1231. The Eleventh Circuit found

that, even though injunctive relief was the only remedy available under the statute,
and the plaintiff had to demonstrate a real and immediate threat of future injury to
prevail on the ADA claim, the standing inquiry was not a merits determination.
Kennedy, 998 F.3d at 1231.

SRA makes two factual attacks on Mr. Brown’s allegation of injury in the first
amended complaint. First, SRA contends that it is “untrue” that “Plaintiff did not
dispute the debt until after employing a credit advisor for assistance regarding his

dispute rights.” (Doc. 71, p. 1, ¶ 2) (emphasis in SRA’s motion). SRA argues that
Mr. Brown “already disputed the debt before allegedly hiring his credit advisor”
because he made an October 11, 2018 phone call to SRA to “dispute the debt before

he called SRA with his advisor” on October 15, 2018. (Doc. 71, p. 2, ¶ 2; Doc. 72,
p. 9) (emphasis in SRA’s motion). Second, SRA contends that Mr. Brown was not
genuinely confused by the collection letter and did not need to hire an advisor, so

any potential injury was self-inflicted.
SRA’s first attack on the timing of when Mr. Brown retained his advisor may
be evaluated under Rule 12(b)(1) because it does not implicate the merits of Mr.
Brown’s FDCPA claim. Whether Mr. Brown retained an advisor for assistance

before or after disputing the debt is a fact-specific inquiry separate from whether
SRA’s collection letter was misleading, § 1692e(10), or overshadowed the
disclosure of Mr. Brown’s right to dispute the debt, § 1692g(b). Assuming that Mr.

Brown adequately disputed the debt through his calls to SRA, there is no evidence
in the record as to when Mr. Brown hired his credit advisor.5 The fact that the

5 Technically, as SRA pointed out in Doc. 9, pp. 6–7, § 1692g(b) requires a consumer to dispute a
debt in writing. 15 U.S.C. § 1692g(b) (“If the consumer notifies the debt collector in writing within
the thirty-day period described in subsection (a) that the debt, or any portion thereof, is
disputed, . . . the debt collector shall cease collection of the debt, or any disputed portion thereof,
until the debt collector obtains verification of the debt or a copy of a judgment, . . . and a copy of
such verification or judgment, . . . is mailed to the consumer by the debt collector. Collection
activities and communications that do not otherwise violate this subchapter may continue during
the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector
in writing that the debt, or any portion of the debt, is disputed . . . . Any collection activities and
communication during the 30-day period may not overshadow or be inconsistent with the
disclosure of the consumer’s right to dispute the debt . . . .”). In Bishop v. Ross Earle & Bonan,
P.A., the Eleventh Circuit held that debt collectors may not omit the “in writing” requirement in §
1692g and mentioned that under § 1692g(b), “the consumer has a right to verification only if she
advisor was not on the line for Mr. Brown’s first call on October 11, 2018 is not
proof that Mr. Brown had not already consulted or hired the advisor. Mr. Brown has

not alleged, and SRA has not offered evidence to establish, the date Mr. Brown
retained his advisor, the time he spent locating the advisor, the cost of hiring the
advisor, or even the advisor’s full name.

When ruling on a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, a
district court may “devise a method for making a determination with regard to the
jurisdictional issue.” Kennedy, 998 F.3d at 1232 (quoting Odyssey Marine Expl.,
Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1170 (11th Cir. 2011)). “In

making that determination, the district court may conduct an evidentiary hearing, see
Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237–38 (11th Cir. 2002), and make
its own factual findings, including about the credibility of [the plaintiff’s] testimony,

see, e.g., United States v. Trull, 581 F.2d 551, 552 (5th Cir. 1978).” Laufer, 2022
WL 906511, at *5. By separate order, the Court will schedule an evidentiary hearing

disputes the debt in writing.” 817 F.3d 1268, 1274 (11th Cir. 2016) (citing Hooks v. Forman, Holt,
Eliades & Ravin, LLC, 717 F.3d 282, 286 (2d Cir. 2013)).

There is no evidence in the record to suggest that Mr. Brown disputed his debt in writing. The fact
that SRA voluntarily verified Mr. Brown’s debt after he orally disputed his debt by phone, (Doc.
56-1, pp. 6–7), may indicate that Mr. Brown successfully disputed the debt despite not complying
with the statute, but there is no question that Mr. Brown “did not dispute the debt until after
employing a credit advisor for assistance concerning his dispute rights” if a writing was required,
and that writing has yet to materialize. At the upcoming evidentiary hearing in this case, the parties
should be prepared to address this issue.
to explore the factual issues relating to the details of Mr. Brown’s relationship with
his financial advisor.

In contrast, SRA’s second challenge to subject matter jurisdiction concerns
Mr. Brown’s sophistication and the credibility of his contention that he needed
assistance to contest his debt. This argument implicates the substance of Mr.

Brown’s claim under 15 U.S.C. § 1692e. That section states: “A debt collector may
not use any false, deceptive, or misleading representation or means in connection
with the collection of any debt,” and § 1692e(10) specifically prohibits “[t]he use of
any false representation or deceptive means to collect or attempt to collect any debt

or to obtain information concerning a consumer.” 15 U.S.C. § 1692e. “When
evaluating a communication under § 1692e, we ask whether the ‘least sophisticated
consumer’ would be deceived or misled by the communication at issue.” Bishop v.

Ross Earle & Bonan, P.A., 817 F.3d 1268, 1274 (11th Cir. 2016) (citing Miljkovic
v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1306 (11th Cir. 2015)). And § 1692g(b)
states that “[a]ny collection activities and communication during the 30-day period
may not overshadow or be inconsistent with the disclosure of the consumer’s right

to dispute the debt . . . .” 15 U.S.C. § 1692g(b).
Deciding whether Mr. Brown was subjectively misled by the collection letter
treads the same ground as deciding whether the least sophisticated consumer would

be misled by the collection letter and therefore “whether [Mr. Brown’s amended]
complaint states a prima facie claim for a violation of the [FDCPA].” See Kennedy,
998 F.3d at 1231. Mr. Brown has facially alleged Article III standing, and

conducting a Rule 12(b)(1) credibility analysis of whether he was actually confused
by the collection letter would significantly overlap with the merits analysis of
whether the letter was misleading and whether its language overshadowed the

disclosure of Mr. Brown’s right to dispute the debt. Because this jurisdictional
challenge implicates the merits of the FDCPA claim, the Court applies the Rule 56
standard to evaluate this aspect of SRA’s motion.6
IV.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a district court
“shall grant summary judgment 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.” FED. R. CIV. P. 56(a). To demonstrate that a genuine dispute as to a material
fact precludes summary judgment, a party opposing a motion for summary judgment
must cite “to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations

6 The Court acknowledges that an Article III challenge to injury typically does not implicate the
merits of a plaintiff’s claim. See Gardner v. Mutz, 962 F.3d 1329, 1340 (11th Cir. 2020) (noting
that the Supreme Court has distinguished “statutory-standing cases, in which the merits and
jurisdictional inquiries may ‘overlap,’ from Article-III-standing cases, in which the jurisdictional
question typically ‘has nothing to do with the text of [a] statute’”) (quoting Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 97 n.2 (1998)). The Court has carefully considered the issue and
concludes that the issue of Mr. Brown’s need for assistance is inextricably intertwined with the
substantive merits of his FDCPA claim.
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A). “The court need consider

only the cited materials, but it may consider other materials in the record.” FED. R.
CIV. P. 56(c)(3).
“[A] litigant’s self-serving statements based on personal knowledge or

observation can defeat summary judgment.” United States v. Stein, 881 F.3d 853,
857 (11th Cir. 2018); see also Feliciano v. City of Miami Beach, 707 F.3d 1244,
1253 (11th Cir. 2013) (“To be sure, Feliciano’s sworn statements are self-serving,
but that alone does not permit us to disregard them at the summary judgment

stage.”). Even if a district court doubts the veracity of certain evidence, the court
cannot make credibility determinations; that is the work of jurors. Feliciano, 707
F.3d at 1252 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

When considering a summary judgment motion, a district court must view the
evidence in the record and draw reasonable inferences from the evidence in the light
most favorable to the non-moving party. Sconiers v. Lockhart, 946 F.3d 1256, 1260
(11th Cir. 2020). Accordingly, the Court views the evidence in the light most

favorable to Mr. Brown and draws all reasonable inferences from the evidence in his
favor.
SRA points to several pieces of evidence that purportedly establish that Mr.

Brown was not genuinely confused by the collection letter. SRA points out that Mr.
Brown’s company, Embolden Solutions, LLC, “focuses on credit repair and sending
disputes to Credit Reporting Agencies,” which “involves knowledge of the Fair

Credit Reporting Act.” (Doc. 84, p. 1, §§ 2–3, 5). According to SRA, Mr. Brown’s
expertise in this area indicates that he was not confused regarding his rights under
the FDCPA and did not need to hire a consultant. SRA also has submitted two audio

recordings of phone calls between Mr. Brown and SRA that, from SRA’s
perspective, indicate that Mr. Brown was not confused by the collection letter.
On October 11, 2018, Mr. Brown called SRA regarding his debt. The call
lasted less than five minutes. Mr. Brown acknowledged receiving a collection letter

from SRA, and stated: “So we need to look into this.” Upon hearing the amount of
the debt and the date of service, Mr. Brown asserted that SRA could not collect a
debt that was four years old and that he did not owe the debt anyway. Mr. Brown

stated: “Since this has been within 30 days, I’m gonna need all the proper paperwork
to prove that this is mine pursuant to Section 809 of the FDCPA.” The employee on
the line tried to transfer the call to the manager, but the manager was busy on another
line. The employee offered to have the manager pull the itemized statements and

mail them to Mr. Brown. Mr. Brown replied, “Yeah, you have to. Absolutely.” Mr.
Brown decided to call back to speak to the manager.
Four days later, on October 15, 2018, Mr. Brown called SRA again to speak

with the manager. For this phone call, his consultant “Ken” was on the line. Mr.
Brown referenced his debt and stated: “I have a few questions about it because this
so-called [debt] took place like four, five years ago so I have my credit counselor,

he’s my advisor, he’s on the phone now, and I authorize you to talk to him because
he has a few questions.” Ken took over the call on Mr. Brown’s behalf and stated:
“We’re trying to figure out what’s going on with the account that you guys have that

you’re saying that he allegedly owe[s] your company.” When the manager offered
to mail Mr. Brown the itemization for the debt, Ken asserted: “Well, even if you
mail the itemization, what we’re trying to get some clarity on is to see what’s owed
to you.” Ken asked if SRA owned the account. When he learned that SRA is a third-

party collection service, he asked to see the agreement authorizing SRA to collect
the debt. Ken mistakenly believed that a federal statute gave Mr. Brown the right to
see SRA’s authorization agreement, and he believed that as a third party, SRA may

not have grounds to collect the debt. The call became contentious, and when the
manager again offered to send the itemization, Ken stated: “We don’t care a thing
about itemization right now, if you want to send it just send it.” The call concluded
soon after.

Thus, to establish that Mr. Brown was not genuinely confused by the
collection letter and did not need to hire an advisor, SRA cites Mr. Brown’s expertise
with the Fair Credit Reporting Act (FCRA), Mr. Brown’s first call to SRA to dispute

his debt, and Mr. Brown’s specific mention of Section 809 of the FDCPA and its 30-
day time period on the call. To dispute this evidence, Mr. Brown submitted a signed
affidavit in which he states: “I was confused by Defendant’s letter,” and “I obtained

a credit advisor to help me with disputing this debt because I was unsure about my
ability to dispute given the language in the letter and the advisor had more
knowledge regarding the FDCPA and my dispute rights.” (Doc. 84, p. 1, ¶¶ 6–7).7

Though conclusory, Mr. Brown’s affidavit is sufficient to create a genuine issue of
fact. See Sconiers, 946 F.3d at 1263 (establishing that on a motion for summary
judgment, “when competing narratives emerge on key events, courts are not at
liberty to pick which side they think is more credible”); Feliciano, 707 F.3d at 1253

(“[A] plaintiff’s testimony cannot be discounted on summary judgment unless it is
blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter
of law, meaning that it relates to facts that could not have possibly been observed or

events that are contrary to the laws of nature.”).
Viewing the evidence in the light most favorable to Mr. Brown, his affidavit
is not blatantly contradicted by the record. Knowledge of the FCRA does not equate
with knowledge of the FDCPA, and Mr. Brown indicated that his company “did not

start sending disputes to debt collectors for clients until 2020.” (Doc. 84, p. 1, ¶ 4).
Moreover, the fact that Mr. Brown called SRA to dispute the debt does not mean

7 The Court allowed Mr. Brown the opportunity to resubmit his affidavit to ensure it met the
requirements of 28 U.S.C. § 1746. (Doc. 83).
that he was not confused by the language in the collection letter. Mr. Brown
contends that the language in the collection letter stating that “[t]he purpose of this

notice is [to] give you an opportunity to respond to the described debt claim and
make arrangements to either pay it or state your reasons why it may be incorrect” is
misleading and overshadows the disclosure of his right to dispute the debt because

it implies that “a consumer may not dispute the debt without having adequate
reason.” (Doc. 70, pp. 2–3, ¶¶ 9, 12). Mr. Brown allegedly “misunderstood his right
to dispute the debt as imposing an affirmative obligation upon him as to why the
debt was not legitimate.” (Doc. 70, p. 3, ¶ 14). For this reason, Mr. Brown hired a

credit advisor for assistance before disputing the debt. (Doc. 70, p. 3, ¶ 14).
Mr. Brown alleges that he was misled by the collection letter because he
believed that he was required to provide reasons for why his debt was not legitimate

when under the FDCPA, he could have simply written “I dispute the debt” to suspend
collection activities. The audio recordings of his phone calls to SRA do not
contradict his assertion. In the October 11, 2018 phone call, Mr. Brown contested
the debt by asserting that it occurred four years prior and was too old to be collected,

and Mr. Brown disputed the debt by contending that he did not owe it at all. Mr.
Brown did not seem to understand that he did not have to offer specific reasons for
his challenge. In the October 15, 2018 phone call, Ken mistakenly focused on the

fact that SRA is a third party collection service supposedly unauthorized to collect
the debt. Under the FDCPA, none of this information was required to contest the
debt and suspend collection activities.8

Finally, Mr. Brown’s statement: “Since this has been within 30 days, I’m
gonna need all the proper paperwork to prove that this is mine pursuant to Section
809 of the FDCPA,” does indicate that he was familiar with the FDCPA. But again,

the evidence does not show when Mr. Brown acquired this knowledge or whether
he obtained the information from his advisor. Moreover, the statement does not
conclusively establish that Mr. Brown understood his right to dispute the debt
without an adequate reason, especially in light of his affidavit to the contrary.9

Therefore, a genuine dispute of fact exists as to whether Mr. Brown was confused
by the collection letter such that he needed to consult an advisor, and Mr. Brown’s
assertion of Article III injury stands for now as it relates to the credibility of his

assertion of confusion.
V.
For the reasons stated above, by separate order, pursuant to Rule 12(b)(1), the
Court will set an evidentiary hearing to examine Mr. Brown’s allegation that he “did

8 Whether Mr. Brown’s reasons for disputing the debt are valid is not relevant. See DeSantis v.
Computer Credit, Inc., 269 F.3d 159, 162 (2d Cir. 2001) (“The consumer’s right to take the
position, at least initially, that the debt is disputed does not depend on whether the consumer has
a valid reason not to pay.”).

9 A factfinder may consider Mr. Brown’s expertise with the FCRA, his basic knowledge of the
FDCPA, and the fact that Mr. Brown had several opportunities to obtain verification of his debt.
A jury may determine that this evidence undermines the credibility of Mr. Brown’s testimony.
not dispute the debt until after employing a credit advisor for assistance concerning
his dispute rights.” The Court denies SRA’s motion for summary judgment
attacking Mr. Brown’s allegation that he “misunderstood his right to dispute the
debt” and needed to consult an advisor for assistance. The Court asks the Clerk to
please TERM Doc. 71.
DONE and ORDERED this March 31, 2022.
Made. 5° Sa
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991032. Public record. Not legal advice.