Keith Reddick v. Capouano, Beckman, Russell & Burnett, LLC ( 2021 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11316
Non-Argument Calendar
____________________
KEITH REDDICK,
by and through his attorney-in-fact, Wanda Sternberg,
Plaintiff-Appellant,
versus
CAPOUANO, BECKMAN, RUSSELL & BURNETT, LLC,
a Limited Liability Company,
Defendant-Appellee.
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2 Opinion of the Court 21-11316
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:19-cv-00512-JTA
____________________
Before BRANCH, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Keith Reddick appeals the magistrate judge’s 1 order granting
summary judgment in favor of Capouano, Beckman, Russell &
Burnett, LLC (“Appellee”), a law firm, on his claims alleging that
Appellee committed multiple violations of the Federal Debt Col-
lection Practices Act, 15 U.S.C. § 1692 (“FDCPA”). For the follow-
ing reasons, we affirm the magistrate judge’s order granting sum-
mary judgment.
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
In October 2006, Reddick signed a “Financial Agreement”
with Zelda Court Dental Care, LLC (“Zelda”), wherein he agreed
“to pay for services not covered by [his] insurance as well as any
legal and/or collection fees necessary for the collection of this
1In accordance with 28 U.S.C. § 636(c), both parties voluntarily consented to
the jurisdiction of the magistrate judge and indicated that they understood that
appeal from the judgment would be taken directly to this Court.
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21-11316 Opinion of the Court 3
debt.” According to Bridget Lyons, Zelda’s custodian of records,
Reddick signed this agreement while opening a joint family ac-
count for which his insurance policy would provide coverage for
him and his then-wife, Adriana Reddick (“Adriana”). Zelda re-
garded Reddick as the responsible party for all charges in the joint
family account. An account history report Reddick received from
Zelda shows a single running account for the Reddicks’ services,
payments, and insurance credits from July 1, 2010, through Octo-
ber 25, 2012. This account history contains thirty-two type entries
titled “PM Note” indicating that statements were processed for
Reddick or Adriana. These PM Note entries reflect varying levels
of urgency in requests for payment in the description section. On
May 23, 2012, the account history reflects: “Statement Processed
With Message ‘YOUR ACCOUNT NEEDS ATTENTION!! If you
are having difficulties paying your bill, call us to discuss payments
based on your individual situation.’” On June 25, 2012, the account
history reflects: “Statement Processed With Message ‘Your ac-
count is now 90 days past due. Please contact our office immedi-
ately!’” Entries on June 27, 2012, and September 18, 2018, reflect
“Letter: C1” and “Letter: ‘Final Collection,’” respectively. Moreo-
ver, seven of the PM Note entries reference Adriana while other
twenty-five reference Reddick. According to the account history,
services for Adriana between September 14, 2011, and April 18,
2012, left a balance of $697.00 after her payment of $3,900.00 on
March 2, 2012, and an insurance payment of $97.00 on April 18,
2012.
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4 Opinion of the Court 21-11316
On April 13, 2012, Reddick and Adriana entered into a sepa-
ration agreement that held Reddick “solely responsible for all per-
sonal and marital debts and liabilities, including but not limited to:
[c]redit cards, mortgages, leins [sic], state or federal taxes, foreclo-
sure, notes, loans, state unemployment benefits, or any other debt
of any kind whatsoever, whether in [Reddick’s] name only or held
by the parties jointly,” and required him to “indemnify and hold
[Adriana] harmless from any efforts of any creditor to collect
same.” (emphasis added). The final decree of divorce entered on
May 25, 2012, specifically incorporated the separation agreement
and provided that the agreement was “adopted and deemed a part
of this Decree” and would “be considered a Pendente Lite Order of
the court.”
On July 27, 2012, Zelda issued a notice to Reddick informing
him that $697.00 was owed on his account. On September 18,
2012, Zelda issued a formal demand for “payment in full” to be re-
ceived “within ten days.” According to Lyons, these documents
were sent by United States Mail, postage pre-paid, to the address
provided by Reddick, and “Zelda . . . received no objection
from . . . Reddick with respect to the charges noted in that commu-
nication or in prior communications.” These actions are noted in
the account history, but PM Notes referencing Adriana were also
entered on August 21, 2012, September 26, 2012, and October 15,
2012. Zelda’s records show that it rendered additional services at
no cost to Adriana on October 25, 2012, and to Reddick on Septem-
ber 26, 2013, which does not include billing information. Lyons
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21-11316 Opinion of the Court 5
stated that the joint account was turned over to Appellee for col-
lection after Reddick failed to make payment arrangements follow-
ing the September 18, 2012, demand for payment in full.
According to Paul Beckman, Jr., a partner in the Appellee
law firm responsible for the collection, he had difficulty making
contact with Reddick to attempt to collect the debt and eventually
learned that Reddick had been incarcerated. Reddick’s mother and
attorney-in-fact, Willie Clark, responded to his firm’s collection let-
ters in April 2018 and informed Beckman that Adriana was respon-
sible for the debt under the provisions of the couple’s divorce de-
cree. Beckman subsequently obtained a copy of Reddick’s divorce
decree and filed a small claims action in state court on behalf of
Zelda on July 20, 2018, based upon his belief that Reddick was re-
sponsible for the debt under the terms of the divorce decree and
that the statute of limitations for the action had not expired. In
addition to the $697.00 balance with Zelda, Beckman sought recov-
ery of court costs, interest, and attorneys’ fees, which totaled an
additional $519.78 in the small claims action.
According to Clark, she emailed “Donna,” an employee of
Appellee, on July 28, 2018, informing the firm that Reddick had ad-
vised Zelda several years earlier that he was not responsible for
Adriana’s dental services and that Zelda ceased collection efforts as
a result. After providing Appellee with Reddick and Adriana’s di-
vorce decree and advising that she was willing to remit payment of
$697.00, Clark then contacted Zelda on August 3, 2018, and was
informed by an employee named “Bridget” that the balance was in
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6 Opinion of the Court 21-11316
Adriana’s name and that Reddick had a zero balance with Zelda.
According to Wanda Sternberg, Reddick’s current wife, she resided
with Reddick from 2014 to 2017 and understood from speaking to
Reddick that he told Zelda, “in or around late 2011 or early 2012,”
that “he was not responsible for the charges made to the account
based upon the legal separation” and had received no further state-
ments from Zelda on the joint account. When Appellee sent a de-
mand letter for the debt to Sternberg’s residence, she wrote “This
is Adriana’s Debt” on the letter and returned it to Appellee. Ac-
cording to Sternberg, Adriana incurred the charges after she was
legally separated from Reddick and that Sternberg met with attor-
ney Richard Moxley III on several occasions to handle the collec-
tion lawsuit filed by Appellee. According to Moxley, he deter-
mined that the debt was no longer collectible as an open account
with a three-year statute-of-limitations period, or alternatively as
an account stated or contract, both of which have a statute-of-lim-
itations period of six years. On August 7, 2018, and again during
the week of August 20, 2018, he informed Beckman of his opinion
and recommended that the case be dismissed.
On August 8, 2018, Beckman named Adriana as a codefend-
ant in the small claims lawsuit, and Moxley, on behalf of Reddick,
filed a motion to dismiss the lawsuit as time-barred under all alter-
nate theories—either as an open account, an account stated, or a
contract. Moxley argued that because either limitations period
should be calculated from April 18, 2012, i.e., the date of Reddick’s
last monetary transaction with Zelda wherein it received an
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21-11316 Opinion of the Court 7
insurance credit for services rendered to Adriana, the small claims
lawsuit filed on July 20, 2018, was time-barred under all circum-
stances. Beckman filed a motion to dismiss the lawsuit after reach-
ing a financial settlement with Adriana on September 28, 2018, stat-
ing that “[t]he Defendant, Adriana Reddick Stout, has paid this ac-
count as agreed in the settlement terms.”
Reddick then filed an action for damages under the FDCPA
on July 19, 2019, alleging that Appellee knew he was not responsi-
ble for the charges forming the basis for the small claims lawsuit
and knew the applicable statutes of limitation had expired on all of
its claims. He further alleged that Appellee’s small claims lawsuit
for the Zelda debt collection was time-barred and therefore was:
(1) an attempt to collect a debt not legally owed through the use of
false and/or misleading representations in violation of 15 U.S.C.
§ 1692e(2), (5), and (10); and (2) the taking of an illegal action
against Reddick in violation of 15 U.S.C. § 1692f(1). Accordingly,
Reddick sought actual and compensatory damages pursuant to 15
U.S.C. § 1629k(a)(1), statutory damages of $1,000 under
§ 1692k(a)(2)(A), and costs and attorney’s fees pursuant to
§ 1692k(a)(3). 2
2 Reddick also brought several state law claims against Appellee, but those
claims are not the subject of this appeal as Reddick did not oppose Appellee’s
motion for summary judgment as to those claims below, and Reddick does
not challenge the district court’s grant of summary judgment in favor of Ap-
pellee on those claims.
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8 Opinion of the Court 21-11316
On June 30, 2020, Appellee filed a motion for summary judg-
ment on the FDCPA claims. As an initial matter, Appellee asserted
that the Zelda debt was properly collectible from Reddick, relying
mainly on the divorce decree and settlement agreement. Appellee
then argued that it was entitled to summary judgment on the
FDCPA claims because it filed the state lawsuit for collection on a
valid debt owed within the six-year limitations period applicable to
accounts stated and contracts under Alabama law. Specifically, Ap-
pellee calculated the limitations period from September 28, 2012—
the due date for the payment demanded by Zelda on the account
balance for services rendered to Reddick and Adriana. Even if the
district court determined that the lawsuit was not timely filed, Ap-
pellee asserted that Reddick’s treatment and payments in 2013 ex-
tended the statute of limitations, and, alternatively, that the limita-
tions period was tolled by Sternberg’s fraudulent representations
regarding the divorce decree, which estopped Reddick from assert-
ing a statute-of-limitations defense in the underlying collection ac-
tion. Appellee also contended that it was entitled to the defense of
bona fide error, see 15 U.S.C. § 1692k(c), arguing that the infor-
mation provided to Beckman suggested that the claim was timely
filed, that Appellee used policies and procedures to avoid filing the
lawsuit outside the statute of limitations, and that Sternberg’s false
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21-11316 Opinion of the Court 9
representations prevented the lawsuit from being timely filed un-
der Reddick’s analysis of the limitations period. 3
In response to Appellee’s motion for summary judgment,
Reddick argued that he demonstrated that a genuine issue of mate-
rial fact exists as to whether the account was an open account sub-
ject to a three-year limitations period and whether Appellee’s col-
lection lawsuit was time-barred on the filing date of July 20, 2018.
Even if the district court concluded that the account was an ac-
count stated, Reddick asserted that the collection lawsuit was time-
barred, arguing in part that Appellee failed to produce any evidence
concerning the mailing, proper mailing, or mailing in due course
of the two collection letters Appellee submitted. Specifically, Red-
dick calculated the limitations period from April 18, 2012—the date
of Reddick’s last monetary transaction with Zelda for services to
Adriana. Reddick further contended that he had demonstrated a
genuine issue of material fact existed as to whether he had in per-
sonam liability for all charges made to the account with Zelda, in-
cluding those charges made by Adriana. As for Appellee’s bona fide
error defense, Reddick asserted that Appellee failed to establish that
it had employed, implemented, and maintained procedures to
3 In its earlier answer to Reddick’s complaint that Appellee filed on August 12,
2019, Appellee affirmatively alleged that “the alleged actions of [Appellee] and
its agents and employees are protected by the ‘bona fide error’ defense since
such actions or inactions, if they occurred, were not intentional and resulted
from a bona fide error notwithstanding [Appellee’s] maintenance of proce-
dures reasonably adapted to avoid such errors.”
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10 Opinion of the Court 21-11316
avoid filing a lawsuit against a time-barred debt and that Appellee
failed to plead the defense with particularity. Reddick also filed a
motion to strike Appellee’s affirmative defense.
On March 18, 2021, the magistrate judge granted summary
judgment in favor of Appellee on Reddick’s FDCPA claims. The
magistrate judge first noted that under the limitations period for
FDCPA actions provided in § 1692k(d), the only collection activity
that could form the basis of a valid FDCPA claim was Appellee’s
filing of the small claims suit to recover on the Zelda debt because
Reddick filed his federal lawsuit just within one year of the small
claims action. Next, the magistrate judge found that Appellee
acted as a “debt collector” and was engaged in collection activity
for purposes of 15 U.S.C. § 1692a(6) when Appellee filed the small
claims action.
The magistrate judge then turned to Reddick’s FDCPA
claims under § 1692e and noted that two issues had to be resolved
to determine if Appellee was entitled to summary judgment on
those claims: “(1) whether [Reddick] was responsible for the Zelda
debt, and (2) whether the small claims lawsuit was barred by the
applicable statute of limitations.” As to the question of whether
Reddick was responsible for the Zelda debt, the magistrate judge
found that the undisputed evidence showed Reddick’s consent to
and knowledge of his responsibility for expenses arising from ser-
vices to Adriana when he opened his account with Zelda. Even
believing Clark and Sternberg’s statements that Reddick disavowed
responsibility for payment of Adriana’s dental expenses after their
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21-11316 Opinion of the Court 11
separation and divorce, the magistrate judge found that such evi-
dence did not refute that Reddick entered the Zelda agreement in
2006 and later agreed to pay the Zelda debt during the divorce in
April 2012 under the separation agreement. As for Sternberg’s
statements that Reddick told Zelda “in or around late 2011 and
early 2012” that he was no longer responsible for Adriana’s charges
“based upon the legal separation” and that Adriana “incurred those
subject charges after [Reddick and Adriana] became legally sepa-
rated,” the magistrate judge concluded that there was no genuine
dispute that Reddick entered into the Zelda agreement in 2006 and
later entered into the April 2012 separation agreement and was
therefore responsible for the Zelda debt during the time at issue.
As for Clark’s statement that she emailed “Donna” on July 28, 2018,
and advised her that “[Reddick] had previously advised Zelda . . .
several years ago . . . that he was not responsible for the charges,”
the magistrate judge concluded that it did not establish a genuine
dispute of material fact for trial as to Reddick’s responsibility for
the Zelda debt, characterizing Clark’s statement as “vague” and
noting that it failed to provide a specific year or time range of when
Reddick allegedly made the statement to Zelda.
The magistrate judge then addressed the statute of limita-
tions issue and noted that, under Alabama law, if the Zelda debt
was an open account with a three-year statute of limitations period,
the small claims lawsuit was time-barred, but if the Zelda debt was
a breach of contract or account stated with a six-year statute of lim-
itations period, then the small claims lawsuit was timely. After
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12 Opinion of the Court 21-11316
reviewing Alabama law and cases regarding the distinctions be-
tween open accounts and accounts stated, the magistrate judge
found that the joint account with Zelda was an open account but
that it was converted into an account stated because it was ren-
dered and not objected to within a reasonable time. Specifically,
the magistrate judge relied on evidence showing that Zelda ren-
dered a statement to Reddick when it mailed a demand for pay-
ment on September 18, 2012, to Reddick’s known address and that
the communication was presumed received under Alabama’s mail-
box rule. Because Reddick did not object to the balance demanded
within the ten-day window specified in the demand for payment,
the magistrate judge concluded that the open account was con-
verted into an account stated.
The magistrate judge also rejected the argument that Red-
dick did not impliedly consent to the amount stated in the Zelda
statement. Even after considering Clark and Sternberg’s state-
ments that Reddick disavowed responsibility for payment of Adri-
ana’s dental expenses after their separation and divorce, the magis-
trate judge ruled that such statements did not establish that Red-
dick objected to the Zelda demand for payment within the ten-day
window in September 2012. Specifically, the magistrate judge con-
cluded that Lyons’s assertion that Reddick did not object to the
charges in the September 2012 payment demand was undisputed
and no genuine issue of fact existed on the issue.
Moreover, the magistrate judge found the September 2012
payment demand from Zelda sufficient to transform Reddick’s
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21-11316 Opinion of the Court 13
open account into an account stated under Alabama law even
though the payment demand did not itemize the charges assessed
on the account. The magistrate judge explained that the evidence
showed that Zelda issued a statement of the account showing the
balance due from Reddick and that his failure to object within a
reasonable time impliedly created an account stated, which served
as an admission of the correctness of the account. Accordingly, the
magistrate judge concluded that Reddick did not establish the pres-
ence of a genuine dispute as to whether his Zelda account was an
open account and ruled that the “[c]ollections on the account were
therefore actionable within the six-year statute of limitations calcu-
lated from September 29, 2012, the date after which [Reddick] was
required to pay and failed to do so.”
The magistrate judge further ruled that the Zelda debt was
also subject to the six-year statute of limitations applicable to a
breach of contract. The court reasoned that Reddick admitted the
Zelda agreement was “a contractual guarantee related to [Red-
dick],” that the statute of limitations period on a contract action
runs from the time that a breach occurs under Alabama law, that
Reddick agreed to pay debts owed for services to Zelda in the Zelda
agreement, and that Reddick breached the contract in September
2012 when he failed to pay despite his agreement to do so. The
magistrate judge therefore determined that expiration of the six-
year limitations period did not occur until September 2018. Be-
cause Appellee’s filing of the small claims lawsuit on July 20, 2018,
was within the six-years limitation period from the date of
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14 Opinion of the Court 21-11316
Reddick’s default on the account stated or breach of contract, the
magistrate judge concluded that the lawsuit was not a time-barred
collection action in violation of § 1692e and granted summary judg-
ment in favor of Appellee on Reddick’s § 1692e claims.
The magistrate judge then addressed Reddick’s allegations
that Appellee took illegal actions against Reddick in violation of
§§ 1692f and 1692f(1). The court noted that the “crux” of Reddick’s
claim was that Appellee knew Reddick was not responsible for the
Zelda debt and knew that the statute of limitations had expired
when it filed the small claims lawsuit. In light of her determina-
tions that Reddick was responsible for the Zelda debt and that the
statute of limitations had not expired at the time Appellee filed the
small claims lawsuit, the magistrate judge granted summary judg-
ment in favor of Appellee on this claim. The magistrate judge also
concluded that Reddick’s § 1692f must fail because Reddick did not
present evidence that Appellee used fair or unconscionable means
to collect the Zelda debt.
As for Reddick’s motion to strike Appellee’s affirmative de-
fense of bona fide error, 4 the magistrate judge denied the motion
as untimely because it was filed almost a year after Reddick re-
ceived Appellee’s answer to the complaint and therefore outside of
Federal Rule of Civil Procedure 12(f)’s deadline of twenty-one days.
4Appellee also filed four motions to strike below, which the magistrate judge
denied, but they are not at issue in this appeal.
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21-11316 Opinion of the Court 15
Moreover, the magistrate judge ruled that Reddick had not demon-
strated prejudice. Reddick filed a timely notice of appeal.
II. STANDARD OF REVIEW
We review a magistrate judge’s grant of summary judgment
de novo, Campbell v. Sikes, 169 F.3d 1353, 1361 (11th Cir. 1999),
and view all of the facts in the light most favorable to the non-mov-
ing party, Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1248
(11th Cir. 2015). Summary judgment is proper where “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).
III. ANALYSIS
On appeal, Reddick argues that the magistrate judge erred
in granting summary judgment to Appellee as to his FDCPA
claims. Specifically, he contends that (1) the magistrate judge erred
by holding him personally liable to Zelda for the debts incurred by
Adriana, and (2) the evidence creates a genuine issue of material
fact as to whether Appellee filed the underlying collection lawsuit
after the expiration of the statute-of-limitations period, violating
the FDCPA. We first explain the background and relevant provi-
sions of the FDCPA and then turn to Reddick’s arguments.
A. Background and Relevant FDCPA Provisions
The FDCPA regulates the conduct of debt collectors in or-
der to protect consumers, with the express purpose of “elimi-
nat[ing] abusive debt collection practices by debt collectors.”
§ 1692(e); accord Trichell v. Midland Credit Mgmt., Inc., 964 F. 3d
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16 Opinion of the Court 21-11316
990, 994 (11th Cir. 2020); Holzman v. Malcolm S. Gerald & Assocs.,
Inc., 920 F.3d 1264, 1269 (11th Cir. 2019). Specifically, the FDCPA
prohibits a debt collector from using any “false, deceptive, or mis-
leading representation or means in connection with the collection
of any debt,” § 1692e, or using “unfair or unconscionable means to
collect or attempt to collect any debt,” § 1692f. As a mechanism
for enforcement, the FDCPA provides a private right of action in
which “any debt collector who fails to comply with any provision
of [the FDCPA] with respect to any person is liable to such person”
for “any actual damage sustained by such person as a result of such
failure,” § 1692k(a)(1), and “such additional damages as the court
may allow,” subject to statutory caps, § 1692k(a)(2)(A). See Owen
v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011).
We have previously held, albeit within the context of a
Chapter 13 bankruptcy proceeding, that a debt collector’s filing of
a claim barred by the statute of limitations violates the FDCPA.
Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1261 (11th Cir.
2014). However, the Supreme Court effectively overruled Craw-
ford when it held that a debt collector’s filing of a proof of claim
that clearly indicated that the statute of limitations had run was not
“false, deceptive, misleading, unfair, or unconscionable” within the
meaning of the FDCPA in the context of a Chapter 13 bankruptcy
proceeding. Midland Funding, LLC v. Johnson, 137 S. Ct. 1407,
1415-16 (2017); see also In re Soler Somohano, 819 F. App’x 873,
876 (11th Cir. 2020) (recognizing that Crawford was effectively
overruled by Midland Funding). In its decision, the Supreme Court
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21-11316 Opinion of the Court 17
expressed doubt that a debt collector’s assertion of a claim known
to be time barred is “unfair” in the context of an ordinary civil ac-
tion to collect a debt but “assume[d], for argument’s sake, that the
precedent is correct in that context.” Id. at 1413. Like the Supreme
Court in Midland Funding, we assume for purposes of this decision
that a debt collector’s filing of a claim in an ordinary civil action to
collect a debt barred by the statute of limitations violates the
FDCPA.
B. Reddick’s Responsibility for the Zelda Debt
Neither party disputes the magistrate judge’s rulings that
Reddick has been the object of collection activity—namely, the fil-
ing of the small claims lawsuit—arising from consumer debt, that
Appellee was a “debt collector” within the meaning of § 1692a(6),
and that Appellee was engaged in collection activity when it filed
the small claims action against Reddick. However, Reddick argues
that the district court erred by holding him personally liable to
Zelda for the debts incurred by Adriana because the 2006 Zelda
agreement is a guaranty related to the charges incurred by Reddick
and does not state that it guarantees the debts of any other individ-
ual. He therefore asserts that the agreement does not create in per-
sonam liability for Adriana’s debts with Zelda and that the guaran-
tee does not trigger Alabama’s six-year statute-of-limitations period
for breach of contract because he did not breach the agreement.5
5 Appellee contends that Reddick “failed to even attempt to address the breach
of contract statute of limitations in his Brief,” that he therefore abandoned any
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18 Opinion of the Court 21-11316
See Ala. Code § 6-2-34(9) (requiring “[a]ctions upon any simple con-
tract or speciality not specifically enumerated in this section” to be
commenced “within six years”).
However, the evidence in the record supports the magis-
trate judge’s determination that there is no genuine dispute that
Reddick was responsible for the Zelda debt. First, while Reddick
characterizes the Zelda financial agreement with Zelda as simply a
guaranty related to charges incurred by Reddick, the language of
the agreement, Lyons’s testimony, and the account history report
establish the opposite. The October 2006 financial agreement with
Zelda, which Reddick signed, provides that he agreed “to pay for
services not covered by [his] insurance as well as any legal and/or
collection fees necessary for the collection of this debt.” (emphasis
argument in that regard, and that the judgment must be affirmed. Appellee
further asserts that Reddick does not mention or address his execution of the
financial responsibility agreement with Zelda. However, Reddick expressly
argues in his initial brief that “because the agreement does not create in per-
sonam liability for Adriana’s debts with Zelda . . . , the guarantee does not
trigger a six-year statute of limitations for breach of contract,” and that Red-
dick “cannot breach the agreement by not undertaking an act that is not legally
required to be undertaken.” A fair reading of Reddick’s initial brief shows that
he addresses the breach of contract statute of limitations and that “the agree-
ment” he refers to is the financial responsibility agreement with Zelda. Ac-
cordingly, Reddick did not abandon any argument on those grounds. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014)
(“When an appellant fails to challenge properly on appeal one of the grounds
on which the district court based its judgment, he is deemed to have aban-
doned any challenge of that ground, and it follows that the judgment is due to
be affirmed.”).
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21-11316 Opinion of the Court 19
added). Lyons also explained that Reddick “opened a family ac-
count” with Zelda, that Reddick “indicated that an insurance policy
in . . . Reddick’s name would provide coverage for both [Reddick]
and Adriana for services provided by Zelda,” and that Reddick and
Adriana had “only one single joint account.” Moreover, the ac-
count history report shows that Zelda maintained a single record
for the services it rendered to Reddick and Adriana as well as the
payments it received from Reddick’s insurance and Reddick and
Adriana themselves. Even viewing the record evidence in the light
most favorable to Reddick, the evidence supports the magistrate
judge’s determination that there is no genuine dispute that Reddick
was personally liable for the Zelda debt and that Reddick breached
the agreement when he failed to pay for the owed debt. Second,
as Appellee correctly notes, Reddick fails to address in his initial
brief the other basis for the magistrate judge’s conclusion that Red-
dick was responsible for the Zelda debt—Reddick and Adriana’s
April 2012 separation agreement and final decree of divorce incor-
porating that agreement. Accordingly, he has abandoned any chal-
lenge to this basis for the magistrate judge’s order, see Sapuppo,
739 F.3d at 680, and Reddick’s arguments in his reply brief regard-
ing the divorce decree are waived, see Egidi v. Mukamai, 571 F.3d
1156, 1163 (11th Cir. 2009) (“Arguments not properly presented in
a party’s initial brief or raised for the first time in a reply brief are
deemed waived.”). For these reasons, the magistrate judge cor-
rectly determined that Reddick was personally liable for the Zelda
debt and that Alabama’s six-year limitations period applied when
Reddick breached the financial agreement and failed to pay for the
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20 Opinion of the Court 21-11316
debt owed by the ten-day window provided in the September 18,
2012, letter. See Ala. Code § 6-2-34(9); Honea v. Raymond James
Fin. Servs., Inc., 240 So. 3d 550, 566 (Ala. 2017) (explaining that Al-
abama law provides generally for a six-year statute of limitations in
an action on a contract); AC, Inc. v. Baker, 622 So. 2d 331, 335 (Ala.
1993) (“The statute of limitations on a contract action runs from
the time a breach occurs rather than from the time actual damage
is sustained.”); Seybold v. Magnolia Land Co., 376 So. 2d 1083, 1086
(Ala. 1979) (“Where a contract provides no fixed time for perfor-
mance, the claimant must generally make a demand for perfor-
mance in order to put the other party in default; and, if a demand
for performance is required, the demand should be made within a
reasonable time after it lawfully can be made.”).
C. Applicable Statute of Limitations
Reddick next argues that he demonstrated that a genuine is-
sue of material fact as to whether the Zelda account is an open ac-
count or account stated. He contends that the Zelda account was
and remains an open account because (1) the evidence below failed
to establish that the account was balanced and rendered to Red-
dick, namely because there was no testimony concerning the
proper mailing or mailing in due course of the statement of ac-
count, collection letters, and other correspondence, and (2) the ev-
idence fails to establish that Reddick either expressly or impliedly
accepted the balance in light of Sternberg and Clark’s testimonies.
Reddick therefore submits that the Zelda account was stale and
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21-11316 Opinion of the Court 21
time-barred for purposes of collection when Appellee filed the
small claims lawsuit.
As noted by the former Fifth Circuit, “[t]he question of ac-
count stated or open account is not a mere matter of procedure or
of different forms of action, but is also a substantive question as to
different kinds of claims.” Ingalls v. Ingalls Iron Works Co., 258
F.2d 750, 751 (5th Cir. 1958). 6 Under Alabama law, “[a]ctions to
recover money due by open or unliquidated account” must be
commenced within three years of “the date of the last item of the
account or from the time when, by contract or usage, the account
is due.” Ala. Code. § 6-2-37(1). Open accounts “[t]raditionally . . .
arise in situations in which credit is extended ancillary to the credi-
tor’s primary business and is provided to customers as part of a
transaction for the purchase of goods or services.” Cadence Bank,
N.A. v. Robertson, No. 1190997, 2021 WL 1230165, at *4 n.3 (Ala.
April 2, 2021). To establish an open account, “there must be an
account based upon running or concurrent dealings, the dealings
must not have been closed, settled or stated, and some term of the
contract must remain to be settled between the parties, or the
agreement must contemplate further transactions between the par-
ties.” Rose Manor Health Care, Inc. v. Barnhardt Mfg. Co., Inc.,
608 So. 2d 358, 360 (Ala. 1992) (quoting 1 C.J.S., Account, Action
6 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(adopting as binding precedent all of the decisions of the former Fifth Circuit
prior to October 1, 1981).
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22 Opinion of the Court 21-11316
on, § 3 at 606-07 (1985)). A plaintiff establishes a prima facie case in
an action for money due on an open account by presenting evi-
dence that “money was delivered to the defendant, that it was a
loan, and that it has not been repaid.” Livingston v. Tapscott, 585
So. 2d 839, 841 (Ala. 1991).
In contrast to actions to recover money due on an open ac-
count, “[a]ctions for the recovery of money upon a loan, upon a
stated or liquidated account or for arrears of rent due upon a parol
demise” must be commenced within six years. Ala. Code § 6-2-
34(5). The Alabama Supreme Court has summarized the nature of
an account stated as follows:
An account stated is a post-transaction agree-
ment. It is not founded on the original liability, but is
a new agreement between parties to an original ac-
count that the statement of the account with the bal-
ance struck is correct and that the debtor will pay that
amount. It is as if a promissory note had been given
for the balance due.
A prima facie case on an account stated is made
when the plaintiff proves (1) a statement of the ac-
count between the parties is balanced and rendered
to the debtor; (2) there is a meeting of the minds as to
the correctness of the statement; and (3) the debtor
admits liability. The debtor’s admission to the cor-
rectness of the statement and to his liabiilty [sic]
thereon can be express or implied. An account ren-
dered, and not objected to within reasonable time
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21-11316 Opinion of the Court 23
becomes an account stated, and failure to object will
be regarded as an admission of correctness of the ac-
count. Once the plaintiff proves his prima facie case,
the burden of proof shifts to the defendant.
Car Ctr., Inc. v. Home Indem. Co., Inc., 519 So. 2d 1319, 1322–23
(Ala. 1988) (emphasis omitted) (citations omitted) (quoting Univ.
of S. Ala. v. Bracy, 466 So. 2d 148, 150 (Ala. Civ. App. 1985)); see
also Gilbert v. Armstrong Oil Co., Inc., 561 So. 2d 1078, 1081 (Ala.
1990); Wilhite v. Beasley, 497 So. 2d 103, 105 (Ala. 1986); Martin v.
Stoltenborg, 142 So. 2d 257, 259 (1962). Alabama courts have held
that a letter demanding payment of a simple amount of a claim
renders an account, and it becomes an account stated when the
debtor fails to object to the rendered account within a reasonable
amount of time. See Home Fed. Sav. & Loan Assoc. v. Williams,
158 So. 2d 678, 682–83 (Ala. 1963); Yarbrough v. Armour & Co., 15
So. 2d 281, 283 (Ala. 1943); see also Williams, 158 So. 2d at 683 (not-
ing that “it is not essential that the account should be in writing” in
order to create an account stated).
While Reddick argues that there was no testimony below
concerning the proper mailing or mailing in due course of the state-
ment of account or collection letters, Lyons’s testimony shows the
opposite. According to Lyons, she sent the September 18, 2012,
demand letter “by United States Mail, postage pre-paid, at the ad-
dress provided by Reddick for such communications,” and “Zelda
. . . received no objection from . . . Reddick with respect to the
charges noted in that communication or in prior communications.”
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24 Opinion of the Court 21-11316
Reddick compares Lyons’s testimony to the testimony in Car Cen-
ter where the Alabama Supreme Court ruled that there was no
competent testimony concerning the proper mailing or mailing in
due course of the statement of account because an affidavit
“merely recite[d] that ‘[a] statement for this amount was sent to
[the debtor].’” 519 So. 2d at 1323 (second alteration in original).
Unlike Lyons’s testimony, however, the testimony in Car Center
contained “no facts describing mailing procedures or knowledge of
mailing procedures.” Id. Accordingly, the September 18, 2012, let-
ter is presumed to have been received by Reddick. See Currie v.
Great Cent. Ins. Co., 374 So. 2d 1330, 1332 (Ala. 1979) (“The pre-
sumption of the law is that a letter, properly addressed with suffi-
cient postage, and unreturned to the sender whose address is
shown on the envelope, was received by [the] addressee.”).
To rebut this presumption and to support his argument that
the evidence fails to establish that Reddick either expressly or im-
pliedly accepted the balance, Reddick relies on the testimonies of
Sternberg and Clark. According to Sternberg, Reddick told Zelda
“in or around late 2011 and early 2012” that he was no longer re-
sponsible for Adriana’s charges “based upon the legal separation
and that . . . [Reddick] received no further statements from Zelda.”
Sternberg further stated that “[d]uring the time [she and Reddick
resided together from approximately 2014 to 2017], there were no
statements from Zelda . . . received at our residence.” Clark testi-
fied that she emailed “Donna,” an employee of Appellee, on July
28, 2018, informing the firm that Reddick “had previously advised
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21-11316 Opinion of the Court 25
[Zelda] several years ago that he was not responsible for the
charges” and that Zelda ceased collection efforts as a result. Even
viewing this evidence in the light most favorable to Reddick, it does
not establish that Reddick did not receive or object to the Septem-
ber 18, 2012, letter demanding “payment in full” to be received
“within 10 days.” The relevant timeframes in Sternberg’s testi-
mony do not concern late 2012, and we cannot conclude that
Clark’s statement that Reddick denied responsibility for the Zelda
debt “several years ago,” creates a genuine dispute as to this issue.
See Fed. R. Civ. P. 56(e); Leigh v. Warner Bros., Inc., 212 F.3d 1210,
1217 (11th Cir. 2000) (“[O]ne who resists summary judgment must
meet the movant’s affidavits with opposing affidavits setting forth
specific facts to show why there is an issue for trial.” (alteration in
original) (quoting Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872
(5th Cir. 1978))).
Even assuming that the Zelda account is an account stated,
Reddick submits that he demonstrated that a genuine issue of ma-
terial fact exists as to whether the limitations period had expired
prior to July 20, 2018—when Appellee filed the small claims action.
He asserts that the six-year limitations period began to toll approx-
imately ninety days before June 25, 2012, at the very latest, relying
on prior PM Note entries in the account history report and the
Zelda PM Note entry on that date indicating as follows: Statement
Processed With Message ‘Your account is now 90 days past due.
Please contact our office immediately!’” However, none of these
entries (which simply advise Reddick as to the status of his account)
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26 Opinion of the Court 21-11316
show that the account was rendered prior to the September 18,
2012, demand letter or, alternatively, prior to Reddick’s implied ad-
mission of the correctness of the Zelda account by failing to object
within the ten days as provided in the demand letter. See Mobile
Rug & Shade Co. v. Daniel, 424 So. 2d 1332, 133 (Ala. Civ. App.
1983) (“[A]n account stated is an account balanced and rendered,
with an assent to the balance, expressed or implied; so that the de-
mand is essentially the same as if a promissory note had been given
for the balance.” (alteration in original) (emphasis added) (quoting
Sinclair Refining Co. v. Robertson, 23 So. 2d 872, 873 (Ala. 1945))).
Reddick disputes that these PM Note entries “‘merely’ advise Red-
dick to the status of his account,” but he points to no language re-
flecting a demand for payment. Even viewing the record in light
most favorable to Reddick, there is no evidence demonstrating that
the small claims lawsuit for collection of the Zelda debt was filed
outside of the six-year limitations period—either as an action to re-
cover money upon an account stated or as an action to recover
money upon Reddick’s breach of contract when he failed to pay
following Zelda’s September 2012 demand for payment—and
therefore time-barred in violation of the FDCPA. Accordingly, the
magistrate judge properly granted summary judgment in favor of
Appellee on Reddick’s FDCPA claims.7
7 On August 24, 2021, Appellee filed a motion to strike portions of Reddick’s
reply brief addressing the proper calculation of the statute of limitations for a
breach of contract action, as well as arguments related to fraud tolling the stat-
ute of limitations in the underlying collection action and the bona fide error
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21-11316 Opinion of the Court 27
IV. CONCLUSION
For the foregoing reasons, we affirm the magistrate judge’s
order granting summary judgment in favor of Appellee on Red-
dick’s FDCPA claims.
AFFIRMED.
defense, Reddick has not filed a response. While our review of Reddick’s ini-
tial brief shows that he generally argued that the Zelda agreement did not trig-
ger a six-year limitations period for breach of contract and that there was no
breach because he was not personally liable for the Zelda debt, he failed to
make any argument in his initial brief regarding the calculation of the statute
of limitations for a breach of contract action or any arguments related to fraud
tolling the statute of limitations in the underlying collection action and the
applicability of the bona fide error defense. We therefore grant Appellee’s
motion to strike. See Egidi, 571 F.3d at 1163 (“Arguments not properly pre-
sented in a party’s initial brief or raised for the first time in a reply brief are
deemed waived.”). However, in light of our decision affirming the magistrate
judge’s grant of summary judgment on grounds it expressly considered, we
do not address Appellee’s arguments that it was alternatively entitled to sum-
mary judgment on Reddick’s FDCPA claims because (1) the limitations period
was extended by fraud, (2) Reddick was estopped from asserting a statute of
limitations defense, or (3) the bona fide error defense applies as a matter of law
and insulates Appellee from liability under the FDCPA.