Solomon v. Baer & Timberlake, P.C. , 504 F. App'x 702 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 3, 2012
Elisabeth A. Shumaker
Clerk of Court
GARRY L. SOLOMON,
Plaintiff-Appellant,
v. No. 12-6118
(D.C. No. 5:09-CV-00200-C)
BAER & TIMBERLAKE, P.C., (W.D. Okla.)
Defendant-Appellee,
and
HSBC MORTGAGE CORPORATION
(USA), d/b/a HSBC Bank USA, as
Trustee; AMERICA’S SERVICING
COMPANY, a/k/a ASC Recovery
Systems,
Defendants.
ORDER AND JUDGMENT*
Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Garry L. Solomon appeals from the district court’s decision granting summary
judgment in favor of Baer & Timberlake, P.C. (“B&T”) on his claims under the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. Exercising our
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. Factual and Procedural Background
B&T was hired by HSBC Mortgage Corporation (USA), d/b/a HSBC Bank
USA (“HSBC”) to collect a debt from Mr. Solomon. B&T also served as counsel for
the loan servicing company, America’s Servicing Company, a/k/a ASC Recovery
Systems (“ASC”). As part of the initial engagement, HSBC provided B&T with
electronic data regarding the debt owed.
On February 13, 2008, B&T sent an initial communication letter to
Mr. Solomon advising him that the amount of the debt was $32,534.75 and that he
had the right to dispute the amount or request validation of the debt. On February 26,
Mr. Solomon sent a facsimile communication requesting the amount of the
“reinstatement fee” for his mortgage. Aplt. App. at 135. Relying on information
from HSBC, B&T sent Mr. Solomon a letter with the loan reinstatement amount.
On February 28, B&T filed suit in state court on behalf of HSBC, seeking
judgment against Mr. Solomon for the principal amount of the loan, plus interest and
other costs and fees. Mr. Solomon was served with the petition on March 8.
On March 27, Mr. Solomon’s attorney requested debt validation through a
facsimile letter to B&T. In June and July, B&T provided loan reinstatement amounts
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to Mr. Solomon’s attorney, based upon information provided by HSBC. In August,
September, and October, B&T provided loan payoff amounts to Mr. Solomon’s
attorney. The payoff amounts provided in the October letters included settlement
proposals from HSBC. Mr. Solomon ultimately sold his home and paid off the debt.
In February 2009, Mr. Solomon filed a complaint against HSBC, ASC and
B&T. He asserted claims under the FDCPA and various state law claims arising out
of the collection attempts on his home mortgage.
The district court dismissed the FDCPA claims on statute-of-limitations
grounds and declined to exercise supplemental jurisdiction over the state law claims.
On appeal, this court reversed and remanded the dismissal of the FDCPA claims,
finding that Mr. Solomon had alleged at least some wrongdoing within the limitations
period. See Solomon v. HSBC Mortg. Corp., 395 F. App’x 494, 497-98 (10th Cir.
2010). The appeal did not involve the state law claims and they were not reinstated
in the district court on remand.
On remand, the district court granted summary judgment in favor of B&T on
all of the FDCPA claims. The district court granted in part and denied in part HSBC
and ASC’s motion for summary judgment. Mr. Solomon then stipulated to a
dismissal with prejudice of the remaining FDCPA claims against HSBC and ASC.
Once those claims were dismissed, the district court entered judgment in favor of all
three defendants. Mr. Solomon appeals from the district court’s decision granting
summary judgment in favor of B&T.
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II. Discussion
We review the district court’s summary judgment decision de novo, applying
the same standard as the district court. Duvall v. Ga.-Pac. Consumer Prods., L.P.,
607 F.3d 1255, 1259 (10th Cir. 2010). Summary judgment is appropriate “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). “[I]n applying
Rule 56, we consider the evidence in the light most favorable to the non-moving
party.” Duvall, 607 F.3d at 1259 (internal quotation marks omitted).
Mr. Solomon’s complaint alleged three violations of the FDCPA: (1) falsely
representing the amount of the debt or compensation for collection of a debt, see
15 U.S.C. § 1692e(2); (2) generally engaging in false, deceptive, or misleading
practices, see id. § 1692f; and (3) failing to provide debt validation or to cease
collection efforts within thirty days after Mr. Solomon disputed the debt, see id.
§ 1692g(a),(b). The district court considered the three claims in reverse order.
With respect to the § 1692g claim, the court concluded that Mr. Solomon’s
February 26 facsimile did not seek debt validation nor did it dispute the debt. The
court explained that the language in the facsimile supports the premise that a debt
existed and that Mr. Solomon was seeking the amount owed in order to resolve the
debt. The court further explained that because Mr. Solomon did not dispute the debt
in writing, B&T was not required to cease collection efforts. Finally, the court
determined that B&T’s filing of the foreclosure action prior to the expiration of the
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30-day window did not overshadow its initial communication letter. The court noted
that Mr. Solomon was aware of his entitlement to and requirements for properly
conveying a dispute of the debt well before the foreclosure action was filed. The
court therefore concluded that B&T was entitled to judgment on this claim.
With respect to the § 1692f and § 1692e claims, Mr. Solomon argued that B&T
engaged in false and misleading actions by increasing or changing its fees with each
communication. Mr. Solomon further argued that B&T misrepresented the amount of
the debt in its communications to him and in the foreclosure petition. The district
court concluded that B&T could not be held liable for any alleged misrepresentations
about the amount of the debt because it reasonably relied upon information from its
client, which it is permitted to do, see Clark v. Capital Credit & Collection Servs.
Inc., 460 F.3d 1162, 1177 (9th Cir. 2006) (“[I]f a debt collector reasonably relies on
the debt reported by the creditor, the debt collector will not be liable for any
errors.”). The court also noted that B&T had provided an explanation to
Mr. Solomon regarding the challenged fees. Because Mr. Solomon provided no
evidence to dispute B&T’s explanation or any legal authority to dispute that B&T is
permitted to rely on its client for the amount of the debt, the district court determined
that B&T was entitled to judgment on these claims.
On appeal, Mr. Solomon repeats the arguments he made before the district
court, arguing that there are material questions of fact in dispute. Having reviewed
the briefs, the record, the district court’s decision, and the relevant legal authority, we
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conclude that the district court correctly decided this case. Accordingly, we
AFFIRM the district court’s judgment for substantially the same reasons stated by the
court in its Memorandum Opinion and Order entered on March 29, 2012.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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