Pettit, Lori v. Retrieval Masters ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1797
Lori Pettit,
Plaintiff-Appellant,
v.
Retrieval Masters Creditors Bureau, Inc.,
and Russell Fuchs,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 1154--Rebecca R. Pallmeyer, Judge.
Argued October 25, 1999--Decided May 9, 2000
Before Easterbrook, Manion, and Rovner, Circuit
Judges.
Manion, Circuit Judge. Lori Pettit claims that
the Retrieval Masters Creditors Bureau
(Retrieval) and its president--Russell Fuchs--
violated the Fair Debt Collection Practices Act
(FDCPA) by using its name in a collection letter.
Specifically, she contends that the name
"Retrieval Masters Creditors Bureau,
Incorporated" is deceptive because it leads
unsophisticated debtors to believe that Retrieval
is a credit bureau rather than a collection
agency. The district court granted summary
judgment for Fuchs because he is not a "debt
collector." It also granted summary judgment for
Retrieval based on its view that the letter was
not deceptive as a matter of law. We affirm
because under the FDCPA Fuchs is not a debt
collector and because Pettit failed to create a
genuine issue of material fact as to whether an
unsophisticated debtor would find Retrieval’s
name misleading. We also reject her argument that
her own subjective belief that all debt
collectors are credit bureaus results in
liability for Retrieval Masters.
A. Liability of the Debt Collector’s
Shareholders or Officers Under the FDCPA
The FDCPA is designed to protect against abusive
debt collection practices which would likely
disrupt a debtor’s life. Mace v. Van Ru Credit
Corp., 109 F.3d 338, 343 (7th Cir. 1997). Its
provisions generally apply only to debt
collectors. See 15 U.S.C. sec. 1692(e);
Transamerica Fin. Servs., Inc. v. Sykes, 171 F.3d
553, 554 n.1 (7th Cir. 1999); Whitaker v.
Ameritech Corp., 129 F.3d 952, 958 (7th Cir.
1997). A "debt collector" is defined as "any
person who uses any instrumentality of interstate
commerce or the mails in any business the
principal purpose of which is the collection of
any debts, or who regularly collects or attempts
to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another." 15
U.S.C. sec. 1692a(6).
Pettit argues that Russell Fuchs--as the largest
shareholder and president of Retrieval Masters--
is a debt collector under the terms of the FDCPA,
and thus is personally liable for any violations
of the Act perpetrated by Retrieval, or at least
for those violations in which he was intimately
involved. The district court rejected this
argument and held that Fuchs is not liable under
the FDCPA because he exercised little or no day-
to-day control over Retrieval Masters. Pettit v.
Retrieval Masters Creditors Bureau, Inc., 42 F.
Supp.2d 797, 805 (N.D. Ill. 1999). But under our
holding in White v. Goodman, the extent of
control exercised by an officer or shareholder is
irrelevant to determining his liability under the
FDCPA. 200 F.3d 1016, 1019 (7th Cir. 2000).
Because such individuals do not become "debt
collectors" simply by working for or owning stock
in debt collection companies, we held that the
Act does not contemplate personal liability for
shareholders or employees of debt collection
companies who act on behalf of those companies,
except perhaps in limited instances where the
corporate veil is pierced. Id.; Aubert v.
American Gen. Fin., Inc., 137 F.3d 976, 979-80
(7th Cir. 1998). Rather, the FDCPA has utilized
the principle of vicarious liability. See
Wadlington v. Credit Acceptance Corp., 76 F.3d
103, 108 (6th Cir. 1996); Fox v. Citicorp Credit
Servs., Inc., 15 F.3d 1507, 1516 (9th Cir. 1994).
Just as in the Title VII context, the debt
collection company answers for its employees’
violations of the statute. With vicarious or
respondeat superior liability, the debt
collection company "and its managers have the
proper incentives to adequately discipline
wayward employees, as well as to instruct and
train employees to avoid actions that might
impose liability." U.S. EEOC v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1282 (7th
Cir. 1995). Individuals who do not otherwise meet
the statutory definition of "debt collector"
cannot be held liable under the Act.
Transamerica, 171 F.3d at 554 n.1. As we
mentioned in White, FDCPA suits against the
owners of a debt collection company who are not
otherwise debt collectors are frivolous and might
well warrant sanctions. 200 F.3d at 1019. The
holding of White is equally applicable to this
case, so regardless of whether Fuchs exercised
extensive control over Retrieval Masters, the
district court correctly granted summary judgment
for Fuchs. Of course, Pettit may still seek
redress from Retrieval Masters for any violations
of the Act committed by Fuchs, since it is
undisputed that Retrieval is a debt collector.
B. The FDCPA and the Unsophisticated
Debtor
The FDCPA specifically prohibits a "false
representation or implication that a debt
collector operates or is employed by a consumer
reporting agency . . . ." 15 U.S.C. sec.
1692e(16). A consumer reporting agency is "any
person which, for monetary fees . . . regularly
engages in whole or in part in the practice of
assembling or evaluating consumer credit
information or other information on consumers for
the purpose of furnishing consumer reports to
third parties . . . ." 15 U.S.C. sec. 1681a(f).
The purpose of this provision is to prevent debt
collectors from coercing payments from debtors by
falsely leading them to believe that the failure
to pay the debt will adversely affect the
debtor’s credit rating and ability to obtain
credit. Cf. McKenzie v. E.A. Uffman & Assocs.,
Inc., 119 F.3d 358, 361 (5th Cir. 1997).
Practices purporting to violate the Act must be
viewed from the objective standard of an
"unsophisticated debtor." Bartlett v. Heibl, 128
F.3d 497, 500 (7th Cir. 1997); Jang v. A.M.
Miller & Assoc., 122 F.3d 480, 483 (7th Cir.
1997). In attempting to describe this
hypothetical debtor we have recognized that he is
not as learned in commercial matters as are
federal judges, see Walker v. National Recovery,
Inc., 200 F.3d 500, 501 (7th Cir. 1999), but
neither is he completely ignorant. Thus, on the
one hand, we have described an unsophisticated
debtor as "uninformed, naive, or trusting."
Gammon v. GC Servs., Ltd. Partnership, 27 F.3d
1254, 1257 (7th Cir. 1994). At the same time, we
have rejected the "least sophisticated debtor"
standard used by some other circuits because we
don’t believe that the unsophisticated debtor
standard should be tied to "the very last rung on
the sophistication ladder." Id. Instead, we and
other courts have held that our uneducated debtor
possesses rudimentary knowledge about the
financial world, is wise enough to read
collection notices with added care, possesses
"reasonable intelligence," and is capable of
making basic logical deductions and inferences.
See Chaudhry v. Gallerizzo, 174 F.3d 394, 408-09
(4th Cir. 1999); United States v. National Fin.
Servs., Inc., 98 F.3d 131, 136 (4th Cir. 1996);
Gammon, 27 F.3d at 1257; Clomon v. Jackson, 988
F.2d 1314, 1319 (2d Cir. 1993). Furthermore,
while our unwary debtor may tend to read
collection letters literally, he does not
interpret them in a bizarre or idiosyncratic
fashion. White, 200 F.3d at 1020; Taylor v.
Perrin, Landry, deLaunay & Durand, 103 F.3d 1232,
1236 (5th Cir. 1997). According to our
unsophisticated debtor standard, a statement will
not be confusing or misleading unless a
significant fraction of the population would be
similarly misled. Gammon, 27 F.3d at 1260
(Easterbrook, J., concurring). With this standard
in mind, we turn to the letter at hand.
C. No Genuine Issue of Material Fact
The first thing a person notices when reading
the letter is the name "RETRIEVAL MASTERS
CREDITORS BUREAU, INC." which is prominently
displayed, in capital letters, at the top of the
correspondence. See Appendix. Almost as prominent
are the words, also in capital letters, "RCMB
COLLECTION AGENCY". In smaller type, the letter
also informs Pettit that Retrieval Masters is a
member of the "American Collectors Association,
Incorporated." The body of the letter plainly
states that "your account is now being handled by
debt collectors . . .", and it warns Pettit that
a failure to pay the debt might result in her
name being placed on the "National Delinquent
Debtor File, which could affect your ability to
obtain certain types of credit . . . ." The
letter is signed by a person identified as a
"Collection Manager." Finally, the letter
instructs Pettit to examine the reverse side,
which informs her in plain English that "[t]his
is an attempt to collect a debt."
The district court held that this letter would
not dupe an unsophisticated debtor into believing
that Retrieval Masters was a credit bureau.
Pettit, 42 F. Supp. 2d at 810. The court based its
holding on the fact that the letter does not
suffer from the usual defects which result in
FDCPA liability. For instance, it does not
contain an explicit statement that Retrieval is a
credit bureau./1 There are no inconsistent or
contradictory assertions concerning Retrieval’s
status with respect to being a credit bureau or a
collection agency, and the letter does not bury
or overshadow its identification of Retrieval as
a collection agency with a suggestion that it is
a credit bureau. Rather, Retrieval’s reminder
that the creditor might place Pettit’s name on
the National Delinquent Debtor File suggests to
the reader that Retrieval is not a credit bureau,
since it is not the one in charge of the
Delinquent Debtor File. As the district court
stated: "Obviously, RMCB is warning that Pettit’s
name will be turned over to a credit reporting
agency if she does not pay promptly. If RMCB was
falsely suggesting that RMCB itself was a credit
bureau, it would not need to threaten to report
her to a credit reporting agency." 42 F. Supp. 2d
at 810.
Undeterred, Pettit points to the obvious
similarity between the term "Creditors Bureau" in
the defendant’s name and the term "credit
bureau," and argues that an unlearned debtor
might mistakenly read the name as "credit
bureau." While it’s true that upon cursory review
this or any other collection letter could be
misread, as we mentioned above, even an
unsophisticated debtor reads collection letters
carefully so as to be sure of their content.
Gammon, 27 F.3d at 1257. A careful reading of the
letter would not lead an unsophisticated debtor
to believe that Retrieval is identified as a
credit reporting agency. So we agree with the
district court that any danger of misreading
created by simply placing the name "Retrieval
Masters Creditors Bureau, Inc." on the letterhead
does not violate the Act./2 White, 200 F.3d at
1020; Chaudhry, 174 F.3d at 408; Clomon, 988 F.2d
at 1319. So Pettit can’t prevail on her
"misreading" argument./3
Pettit also argues that an unsophisticated
debtor might believe that there is no difference
between a creditors’ bureau and a credit bureau,
or that the collection agency in question is both
a credit bureau and a creditors’ bureau, and so
the letter would be deceiving in this respect.
While there may be some merit to this argument,
Pettit cannot prevail because at the summary
judgment stage of a case she must do more than
merely speculate about how a naive debtor would
interpret the letter. The non-moving party must
offer sufficient evidence to create a genuine
factual issue for trial. See Fed. R. Civ. P.
56(e). But Pettit presents little on this point.
The best she could come up with was her own self-
serving deposition testimony that Retrieval’s
name led her to believe that the company was a
credit bureau. This fails to create a genuine
issue as to whether a significant fraction of the
population would have believed the same thing
after reading this letter. Robin v. Espo Eng’g
Corp., 200 F.3d 1081, 1088 (7th Cir. 2000)
(nonmoving party "must supply evidence sufficient
to allow a jury to render a verdict in his
favor."). We have advised litigants on several
occasions that this feat might be accomplished
through the use of survey evidence, see, e.g.,
Walker, 200 F.3d at 501; Johnson v. Revenue
Management Corp., 169 F.3d 1057, 1060 (7th Cir.
1999), but Pettit elected not to take this route.
The self-serving opinion of the plaintiff,
clearly not an expert or an objective observer,
does not create a genuine issue for trial.
Therefore, for this reason alone summary judgment
was proper.
D. Imputation of Irrationality to the
Unsophisticated Debtor
Another more substantial problem exists with
Pettit’s reliance on her own deposition
testimony. This court has held that it will not
ascribe to the hypothetical unsophisticated
debtor all of the irrational notions which FDCPA
plaintiffs might suggest. White, 200 F.3d at
1020. Yet that is exactly what Pettit asks us to
do here. In her deposition she revealed her own
subjective standard for an unsophisticated
debtor. Pettit essentially contends that no
matter what name Retrieval had used, she (as the
typical unsophisticated debtor) would have
thought that it was a credit bureau, because she
thought that credit bureaus and collection
agencies were the same thing.
Q: When you received this letter in August of
1997, what about the letter made you think that
it was from a credit bureau?
Pettit: The name Creditors Bureau.
Q: Is that the only thing?
Pettit: Yes.
Q: But you also knew that it was from a debt
collector, right?
Pettit: I thought they were the same thing.
Pettit Dep. p. 25.
Pettit’s self-serving testimony does not serve
her well. Her proposed standard would create
liability for debt collectors based on
information which the Act requires debt
collectors to place in their collection letters.
15 U.S.C. sec. 1692e(11) (debt collector must
inform the debtor that it is attempting to
collect a debt, and thus that it is a debt
collector); Lewis v. ACB Business Servs., Inc.,
135 F.3d 389, 399 (6th Cir. 1998) (debt collector
must inform the debtor that the dunning letter is
from a debt collector who is attempting to
collect a debt). We obviously cannot accept
Pettit’s claimed level of unsophistication as the
level of unsophistication possessed by the
typical unsophisticated debtor. If we did, nearly
all collection letters from debt collectors would
violate the Act. Under Pettit’s standard, any
letter which states it is an attempt to collect a
debt or which states that it is from a collection
agency would lead someone with Pettit’s mindset
to believe not only that the letter is from a
collection agency, but also, because she believes
that collection agencies are credit bureaus, that
the debt collector sending her the letter is a
credit bureau. Pettit’s proposed standard of
unsophistication would mean that all attempts to
collect debts by non-credit bureau debt
collectors would violate the FDCPA. But the text
of the FDCPA implicitly places limits on how far
we can go in attributing unenlightened notions to
our hypothetical debtor. White, 200 F.3d at 1020;
Smith v. Computer Credit, Inc., 167 F.3d 1052,
1055 (6th Cir. 1999) ("A collection agency does
not have to stop its collection efforts to comply
with the Act."). In short, under the FDCPA,
confusion is not in the eyes of the beholder. As
we said in White, the "Act is not violated by a
dunning letter that is susceptible of an
ingenious misreading, for then every dunning
letter would violate it. The Act protects the
unsophisticated debtor, but not the irrational
one." White, 200 F.3d at 1020. As a matter of
law, the extremely low level of sophistication
and the high level of irrationality suggested by
Pettit is not the standard for unsophisticated
debtors. Chaudhry, 174 F.3d at 409 (least
sophisticated debtor standard preserves a
quotient of reasonableness and presumes a basic
level of understanding). Accordingly, the
district court correctly granted summary judgment
for Retrieval Masters. We
AFFIRM.
/1 Prior to 1979, Retrieval’s official name was
"Retrieval Masters Credit Bureau, Inc." The name
change was engendered by the Federal Trade
Commission’s suggestion that "Credit Bureau" was
misleading. The FTC has made no complaint about
Retrieval’s present name.
/2 This is not to say that Retrieval Masters
couldn’t improve the letter. In the future, it
might place in its collection letters an explicit
statement that it is not a credit reporting
agency. As we discuss below, this would not have
mattered in Pettit’s case because she believed
that all debt collectors were credit bureaus, but
such a disclaimer may prove helpful to some
debtors.
/3 Pettit attempts to support her argument with a
Fifth Circuit opinion dealing with a collection
agency that used the name "Collections
Department, Credit Bureau of Baton Rouge." See
McKenzie, 119 F.3d at 358. The McKenzie court
found that this name would lead debtors to
believe that the company was a credit reporting
agency. Obviously that case is distinguishable
from the present one for, as we point out above,
Retrieval Masters did not use the term "credit
bureau" in its name or any other part of the
letter.
APPENDIX