Juan Carrasco v. Michael O'Toole , 628 F. App'x 907 ( 2015 )

Case: 14-51054 Document: 00513245017 Page: 1 Date Filed: 10/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 23, 2015
No. 14-51054
Summary Calendar Lyle W. Cayce
Clerk
JUAN FEBRES CARRASCO,
Plaintiff-Appellant
v.
MICHAEL O’TOOLE; EKPSZ, doing business as Texas Final Judgment,
L.L.C.,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:12-CV-1127
Before JOLLY, DENNIS, and ELROD, Circuit Judges.
PER CURIAM: *
Pro se plaintiff-appellant Juan Febres Carrasco appeals the take nothing
judgment following a jury trial in favor of defendant-appellee Michael O’Toole,
who represents himself in this appeal. Carrasco also appeals the denial of his
motion for a default judgment against defendant Texas Final Judgments, LLC.
His complaint alleged that the defendants violated several provisions of the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-51054
Fair Debt Collection Practices Act (FDCPA), as well as the Texas Debt
Collection Practices Act and the Texas Deceptive Trade Practices Act. We
liberally construe the filings of pro se litigants. Grant v. Cuellar, 59 F.3d 523,
524 (5th Cir. 1995).
Carrasco contends that the jury was instructed to consider the “wrong
evidence” in evaluating whether O’Toole was liable for making misleading
representations in violation of the FDCPA. The court instructed the jury to
consider two letters mailed by O’Toole on January 3, 2012, although the
evidence reflected that one of the letters was mailed December 3, 2011. The
evidence showed that O’Toole did not caution Carrasco in the December 3,
2011, letter that O’Toole was “attempting to collect a debt and that any
information obtained [would] be used for that purpose,” a purported violation
of the FDCPA. See 15 U.S.C. § 1692e(11).
Because Carrasco did not object to the jury instruction, we review for
plain error. See FED. R. CIV. P. 51(d)(2); Jimenez v. Wood County, 660 F.3d 841,
847 (5th Cir. 2011) (en banc). We are “exceedingly deferential to the trial court”
when reviewing an instruction for plain error. Fiber Systems Int’l, Inc. v.
Roehrs, 470 F.3d 1150, 1158 (5th Cir. 2006) (internal quotation marks and
citation omitted). Carrasco must show an error that is clear or obvious that
affects his substantial rights and also show that “failing to correct the error
would seriously impact the fairness, integrity, or public reputation of judicial
proceedings.” Id.
Even assuming that the district court clearly or obviously erred in
referencing two January 3, 2012, letters instead of directing the jury to
consider the letter dated December 3, 2011, Carrasco fails to show that his
substantial rights were affected. He points to no evidence that he was entitled
to actual or statutory damages under 15 U.S.C. § 1692k for the alleged
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violation of § 1692e(11). He erroneously alleges instead that O’Toole was
strictly liable for damages. See § 1692k(a)(1), (a)(2)(A). Without showing that
his substantial rights were affected, he fails to establish plain error. See
Jimenez, 660 F.3d at 847; Fiber Systems, 470 F.3d at 1158.
Next, Carrasco contends that the district court erred in refusing to
instruct the jury concerning the prohibitions in 15 U.S.C. § 1692g against
“overshadowing” the 30-day period described in the important notice and
failing to cease collection activities where the debt has been disputed; the
requirements of the Texas debt collection statutes; and the requirement that
the debt collector caution the debtor that he is attempting to collect a debt and
that any information obtained will be used for debt collection purposes.
Carrasco also contends that the district court should have instructed the jury
concerning actual damages. We find no error in the district court’s refusal to
instruct the jury on overshadowing and the requirement to cease collection
efforts if the consumer disputes the debt within the 30-day notice period. There
was no evidence in the record disputing O’Toole’s testimony that he complied
with the requirements of § 1692g. See Kanida v. Gulf Coast Med. Pers. LP, 363
F.3d 568, 578-80 (5th Cir. 2004); Syrie v. Knoll Int’l, 748 F.2d 304, 310 (5th Cir.
1984).
With respect to the argument that the district court should have
instructed the jury on the Texas law claims, Carrasco neglects to mention that
the district court granted judgment as a matter of law in favor of O’Toole on
the claims at the close of his case in chief. Because Carrasco does not challenge
the judgment as a matter of law, we find no error. See Kanida, 363 F.3d at
578. Nor do we find reversible error in the court’s refusal to instruct the jury
that a debt collector’s initial communication to the consumer must include
what has been called the “mini Miranda” warning required by § 1692e(11), as
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Carrasco points to no evidence in the record suggesting that he was entitled to
damages resulting from the absence of such a warning from the letter dated
December 3, 2011. See Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230,
241 (5th Cir. 2014) (declining to correct a harmless error). Similarly, we find
no reversible error in the district court’s refusal to instruct the jury on the issue
of actual damages, as there is no evidence in the record before this court that
Carrasco suffered any actual damages. See Kanida, 363 F.3d at 578-80; Syrie,
748 F.2d at 310. To the extent Carrasco also claims that the district court
erred in failing to give other instructions that he did not request in the district
court, he is barred from raising such a complaint here. See Kanida, 363 F.3d
at 580.
Carrasco also alleges that O’Toole violated the FDCPA by advising him
that he had 30 days to dispute the debt without knowing that a foreclosure sale
was scheduled during that time and by deliberately mailing a response to
Carrasco’s validation letter to the wrong address. However, Carrasco does not
suggest any related error by the district court. We are a “court of error . . .
charged only with determining whether the errors of fact and law asserted by
appellants present valid reasons for reversing the results reached by the
district court and the jury.” Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247,
260 (5th Cir. 2000). We will not undertake a sua sponte effort to discover any
error by the district court concerning these alleged violations of the law. See
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (noting that even pro se
litigants must brief arguments to preserve them); Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (declining to raise and
address legal issues the appellant failed to assert).
Additionally, Carrasco suggests that the district court was biased
against him, although he fails to point to anything in the record suggesting
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such a bias. Wholly unsupported claims of judicial misconduct fail to establish
any reversible error. See, e.g., Mata v. S. San Antonio Indep. Sch. Dist., No. 93-
8182, 1993 WL 413927, 4 (5th Cir. Oct. 15, 1993) (unpublished) (noting that
charges of judicial misconduct “are serious ones, not to be made lightly or
recklessly, and certainly not in the absence of any genuine evidence
whatsoever”).
Finally, with respect to the district court’s refusal to grant a default
judgment against Texas Final Judgments, LLC, we note that “[d]efault
judgments are a drastic remedy, not favored by the Federal Rules and resorted
to by courts only in extreme situations.” Lewis v. Lynn, 236 F.3d 766, 767 (5th
Cir. 2001) (internal quotation marks and citation omitted). The district court
dismissed Carrasco’s claims against Texas Final Judgments because “there
was no evidence of liability or damages concerning this defendant presented at
trial.” Carrasco does not challenge the court’s determination, and we find no
abuse of discretion. See id. at 767-68.
AFFIRMED.
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