Sara Surber v. McCarthy, Burgess & Wolff, Inc. , 634 F. App'x 292 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12296
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00309-CG-M
SARA SURBER,
individually and on behalf of all similarly situated individuals,
Plaintiff - Appellant,
versus
MCCARTHY, BURGESS & WOLFF, INC.,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Alabama
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(December 31, 2015)
Before MARCUS, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Sara Surber appeals the district court’s grant of summary judgment in favor
of McCarthy, Burgess & Wolff, Inc. (“MB&W”) on her claim alleging that
MB&W violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692. After careful review, we affirm.
I.
Beginning in January 2012, Surber sold insurance policies for Bankers Life
& Casualty Company (“Bankers Life”) as an independent contractor. Bankers Life
paid Surber a commission calculated as a percentage of the annual premium
insureds paid to Bankers Life for the policies she sold. Bankers Life paid Surber
the entire commission earned on a policy upfront, even if the insured paid Bankers
Life the premium in installments. If an insured failed to pay the entire annual
premium, Banker’s Life would “charge back” to Surber the pro rata portion of the
commission for the premium the insured failed to pay.
In October 2012, Bankers Life and Surber terminated their relationship.
Bankers Life claimed that Surber owed $3,954.87 in charge backs for commissions
related to unpaid premiums, which Surber disputed. Bankers Life hired MB&W, a
collection agency, to collect from Surber. MB&W sent Surber a letter demanding
payment.
Shortly after receiving the letter, Surber filed this action in district court,
alleging that MB&W failed to provide disclosures the FDCPA required. She
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sought to represent a class of similarly situated individuals who had received
similar collection letters from MB&W. After MB&W answered and before taking
any discovery, the parties requested a conference with the district court regarding
scheduling. Based on discussion at the conference, the district court entered an
order stating that “whether Plaintiff has [a] viable individual claim under the
[FDCPA] is a legal issue which can be decided now by the filing of a summary
judgment motion.” Order (Doc. 24). 1 Because “[t]he facts do not appear to be in
dispute,” the district court directed “the parties [to] enter into a stipulation of fact
for the purpose of the summary judgment motion.” Id. After the parties agreed on
the stipulation, MB&W moved for summary judgment. The district court granted
the motion, holding that the money MB&W sought from Surber failed to qualify as
a debt under the FDCPA. This is Surber’s appeal.
II.
We review de novo a district court’s grant of summary judgment. Brown v.
Sec’y of State of Fla., 668 F.3d 1271, 1274 (11th Cir. 2012). Summary judgment
is appropriate “where the moving party . . . ‘shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’”
Hughes v. Kia Motors Corp., 766 F.3d 1317, 1331 (11th Cir. 2014) (quoting Fed.
1
Citations to “Doc.” refer to docket entries in the district court record in this case.
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Rawle Civ. P. 56(a)), cert. denied, 153 S. Ct. 1423 (2015). “In reviewing the material
facts, we draw all inferences in favor of the nonmoving party,” here, Surber. Id.
III.
Surber claims that MB&W violated the FDCPA. We have explained that
“[t]o recover under . . . the FDCPA . . . , a plaintiff must make a threshold showing
that the money being collected qualifies as a ‘debt.’” Oppenheim v. I.C. Sys., Inc.,
627 F.3d 833, 836-37 (11th Cir. 2010). The FDCPA defines a “debt” as an
“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.” 15 U.S.C. § 1692a(5). In other words,
the FDCPA applies “only when an obligation to pay arises out of a specified
transaction.” Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir.
1998); see also Oppenheim, 627 F.3d at 837 (“The statute thus makes clear that the
mere obligation to pay does not constitute a ‘debt’ under the FDCPA.”). We
understand the phrase “arising out of,” as used in the FDCPA, to have its ordinary
meaning of “originating from, incident to, or connected with the item in question.”
Rouse v. Greyhound Rent-A-Car, Inc., 506 F.2d 410, 414 n.3 (5th Cir. 1975). 2
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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For her obligation to Bankers Life to qualify as a debt, Surber must show
that it originated from a transaction in which the money or services that were the
subject of the transaction were primarily for personal, family, or household
purposes. See 15 U.S.C. § 1692(a)(5). She has failed to make this showing. Her
obligation to pay Bankers Life grew out of a commercial contractual relationship
in which she sold Bankers Life insurance policies for a commission. Although
Bankers Life paid Surber a commission based on a policy’s annual premium even
if the insured had not yet paid the annual premium in full, it retained the right to
charge back and recover from Surber a portion of the commission if an insured
failed to pay the entire annual premium. The undisputed evidence shows that her
obligation arose from this arrangement.
Surber contends that a reasonable jury could conclude that Bankers Life
loaned her money, which she then used for personal or household purposes. But
she has failed to come forward with evidence from which a reasonable jury could
conclude that Bankers Life loaned her money. Instead, the undisputed evidence
shows that she owed money to Bankers Life because of charge backs—
adjustments—for overpaid commissions. 3 In other words, given the fundamentally
3
To support her argument that Bankers Life loaned her money, Surber relies heavily on
the non-precedential district court opinion in Thompson v. Diversified Adjustment Services, Inc.,
No. 12-922, 2013 WL 3973976 (S.D. Tex. July 31, 2013). In Thompson, an insurance company
paid commissions to an agent who sold insurance policies. The insurance company also agreed
that the agent could request a loan at any time from the insurance company with no further
documentation needed to evidence or secure the loan. Id. at *1. When the agent and insurance
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commercial nature of this transaction, we cannot say that a reasonable jury could
conclude that Surber’s obligation to pay MB&W originated from a transaction that
was primarily for personal, family, or household purposes. 4
Surber also argues that because she used her commissions for personal
expenses, her obligation to Bankers Life arose from a transaction primarily for
personal, family, or household purposes. In essence, she asks us to look past the
transaction that gave rise to her obligation—that is, her business relationship with
Bankers Life—and focus on how she used the money after the transaction. But the
plain language of the FDCPA requires us to consider whether her obligation to pay
company terminated their relationship, the agent owed the insurance company money. The
insurance company hired a collection agency to recover the money. The agent sued the
collection agency under the FDCPA. At summary judgment, the collection agency argued that
the agent’s obligation failed to qualify as a debt because the money she owed was for overpaid
commissions. Id. at *2. But the agent offered evidence showing that the money she owed was
not for overpaid commissions but instead a separate loan from the insurance company that she
used for personal purposes. The district court denied summary judgment because a reasonable
jury could conclude that the agent’s obligation arose from a loan, not overpaid commissions, and
thus it qualified as a debt under the FDCPA. Id. at *9. This case is different from Thompson
because Surber has come forward with no evidence showing that Bankers Life had loaned her
money.
4
Surber argues for the first time on appeal that the district court lacked authority under
Federal Rule of Civil Procedure 16(b) to compel the parties to stipulate to facts. When Surber
stipulated to facts in the district court, she raised no objection that the district court’s request for
a stipulation was improper. We will not consider this argument raised for the first time on
appeal. See Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 (11th Cir. 1994).
Surber also argues that the district court should have given her an opportunity to take
discovery to show that Bankers Life loaned her money. Under Federal Rule of Civil Procedure
56(d), a party opposing a summary judgment motion may submit affidavits or declarations to
show that she “cannot present facts essential to justify [her] opposition” and to seek additional
discovery before the court rules on summary judgment. Fed. R. Civ. P. 56(d). Surber made no
such request in the district court. Accordingly, we conclude that the district court did not abuse
its discretion in ruling on MB&W’s summary judgment motion. See Urquilla-Diaz v. Kaplan
Univ., 780 F.3d 1039, 1063-64 (11th Cir. 2015).
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Bankers Life arose out of a transaction in which the subject of the transaction was
primarily for personally, family, or household purposes. See 15 U.S.C. § 1692a(5).
Thus, contrary to Surber’s argument, we must focus on the transaction in which the
obligation originated.
IV.
The district court properly granted summary judgment to MB&W because
Surber failed to come forward with evidence creating a disputed question of
material fact as to whether her obligation to Bankers Life qualified as a debt under
the FDCPA. We therefore affirm the district court’s entry of summary judgment.
AFFIRMED
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