Boyd, Birgetta A. v. Wexler, Norman P. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1809
Birgetta A. Davis Boyd
and Charlene Harrison,
Plaintiffs-Appellants,
v.
Norman P. Wexler, doing
business as Wexler and Wexler,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2555--Ruben Castillo, Judge.
Argued November 2, 2001--Decided December 28, 2001
Before Posner, Ripple, and Evans, Circuit
Judges.
Posner, Circuit Judge. This appeal from
the grant of summary judgment to the
defendant, a lawyer named Norman Wexler,
presents questions regarding both the
meaning of the Fair Debt Collection
Practices Act, 15 U.S.C. sec.sec. 1692 et
seq., and the minimum showing required to
defeat a motion for summary judgment.
The Act forbids a debt collector, which
Wexler is conceded to be, to "use any
false, deceptive, or misleading
representation or means in connection
with the collection of any debt," 15
U.S.C. sec. 1692e, including "the false
representation or implication that any
individual is an attorney or that any
communication is from an attorney." 15
U.S.C. sec. 1692e(3). A lawyer who merely
rents his letterhead to a collection
agency violates the Act, 15 U.S.C. sec.
1692j(a); Taylor v. Perrin, Landry,
deLaunay & Durand, 103 F.3d 1232, 1235-38
(5th Cir. 1997); cf. White v. Goodman,
200 F.3d 1016, 1018 (7th Cir. 2000), for
in such a case the lawyer is allowing the
collection agency to impersonate him. The
significance of such impersonation is
that a debtor who receives a dunning
letter signed by a lawyer will think that
a lawyer reviewed the claim and
determined that it had at least colorable
merit; so if no lawyer did review the
claim, the debtor will have been deceived
and the purpose of the Act therefore
thwarted. Similarly, a lawyer who, like
Wexler, is a debt collector violates
section 1692e(3) (and also section
1692e(10), which forbids "the use of any
false representation or deceptive means
to collect or attempt to collect any
debt") if he sends a dunning letter that
he has not reviewed, since his lawyer’s
letterhead then falsely implies that he
has reviewed the creditor’s claim. Avila
v. Rubin, 84 F.3d 222, 228-29 (7th Cir.
1996); United States v. National
Financial Services, Inc., 98 F.3d 131,
135-37 (4th Cir. 1996); Clomon v.
Jackson, 988 F.2d 1314, 1320-21 (2d Cir.
1993). "A debt collection letter on an
attorney’s letterhead conveys authority
and credibility." Crossley v. Lieberman,
868 F.2d 566, 570 (3d Cir. 1989).
The plaintiffs received dunning letters
signed "Wexler & Wexler," the name under
which the defendant practices law. The
suit charges that no lawyer in fact
reviewed the claims made in the letters
before they were mailed. The defendant
moved for summary judgment and supported
the motion with his affidavit. The
affidavit states that a lawyer reviews
every individual file before the initial
collection letter (the letters to the
plaintiffs were initial, not follow-up,
letters) is sent, that he himself
reviewed the plaintiffs’ files before
approving the sending of collection
letters to them, and that in every
collection case handled by his office a
lawyer "reviews each and every document
in the client’s file to insure the
correctness of the data and the claim,
paying strict attention to the various
statutes of limitation which may apply .
. . [and] to make sure that we comply
with state requirements, such as the need
for actual presence in the state, a
collection agency license or a license to
practice law in the state." If the lawyer
approves the claim, a form letter is
prepared "for review and approval [by
him] before [it is] allowed to go into
the mail." If "after reviewing the case
file . . . the attorney is unable to
verify that the client is making a valid
claim, the case is pulled out and
discussed with our client."
So far, so good. But pretrial discovery
revealed that in a recent eight-and-a-
half-month period Wexler’s firm sent out
439,606 pieces of mail, which according
to the deposition testimony of one of the
firm’s lawyers consisted overwhelmingly
of collection letters. That is an average
of 51,718 a month. So Wexler’s firm must
be large--but no, it turns out to have
only three lawyers, although it has 45
other employees. Of the three lawyers,
two, including the defendant, appear to
be engaged in managing the firm and all
three engage in normal litigation
activities (Wexler’s affidavit states
that his firm "routinely engages in
litigation with regards [sic] to
collection matters"), leaving little time
for them to be reviewing the routine
collection activity that generates the
vast bulk of the mailings. In addition,
Wexler is constantly changing the form
letter. We are amused (though we doubt
the recipients were) by one of the
variants, which Wexler dropped after
being sued on account of it: "YOU ARE
ABOUT TO BE TREATED IN A MANNER THAT WILL
CAUSE YOU TO THINK TWICE BEFORE YOU WRITE
ANOTHER WORTHLESS CHECK. OUR CLIENT HAS
INSTRUCTED THAT WE NOTIFY YOU THAT YOU
ARE GOING TO BE SUED UNLESS REPAYMENT IS
FORTHCOMING AT ONCE." Keele v. Wexler,
149 F.3d 589, 591 (7th Cir. 1998).
Suppose that each of the three lawyers
in Wexler’s firm devotes four hours a day
to reviewing collection files and
authorizing the mailing of dunning
letters and that the process of review
and authorization takes an average of 15
minutes per file. That comes to 16
collection letters a day per lawyer,
which is fewer than 50 collection letters
a day for all three lawyers or, assuming
a five-day work week, fewer than 1,000
letters a month for the entire firm--if
it is really true that each lawyer
follows the review and authorization
procedure set forth in Wexler’s
affidavit. To say the least, it is
difficult to see how the firm could send
out fifty times that number of letters
yet still have a lawyer review the file
and the letter in every one.
And it gets worse. The volume of mail
sent by the firm varies from week to
week, and in one particularly busy week
in June 2000 the firm sent out 23,342
pieces of mail-- 93 times the maximum
number consistent with 15-minute review.
What is more, Wexler stated at his
deposition that he personally is
responsible for reviewing most of
thecollection letters; if he reviewed all
of them himself, the estimate of 93 times
the maximum consistent with 15-minute
review would soar to 279 times. Our 15-
minute estimate may be too high, but it
could be cut in three, or for that matter
in 15, without explaining the volume of
collection letters.
The district judge, in explaining why
despite this evidence he granted summary
judgment for Wexler, characterized
Wexler’s affidavit as "uncontradicted and
unrefuted." This characterization was
possible only because the judge gave no
weight at all to the volume of mail,
stating that "mathematical inferences
about the volume of letters sent are not
probative of [Wexler’s] state of mind."
State of mind is not the issue. The issue
is credibility, the truthfulness of the
affidavit; Wexler might think he reviewed
the two plaintiffs’ files carefully yet
be mistaken. Circumstantial evidence can
create an issue of credibility. United
States v. Arias, 238 F.3d 1, 3-5 (1st
Cir. 2001); United States v. Drones, 218
F.3d 496, 504 (5th Cir. 2000); United
States v. Premises Known as 717 South
Woodward Street, 2 F.3d 529, 534 (3d Cir.
1993); United States v. Bouquett, 820
F.2d 165, 167 (6th Cir. 1987). Suppose a
witness testifies that he saw a person
draw a gun, but there is evidence that a
truck was blocking the witness’s line of
sight. This would be circumstantial
evidence that created an issue of the
witness’s credibility (though not
necessarily of his state of mind--he
might have thought he saw a gun, but have
been mistaken). And so it is here.
Wexler’s testimony was made incredible,
or at least highly implausible, by the
evidence of the volume of mail,
especially when that evidence is viewed
against the background of his testimony
that he personally reviewed the
plaintiffs’ files. The letters to the two
plaintiffs were mailed in February and
March 2000, respectively. They are very
short form letters seeking unexceptional
amounts of money; there is nothing
memorable about them. Wexler gave his
deposition in September, almost six
months later--by which time, if his
affidavit can be believed, close to
100,000 additional collection matters had
passed through his hands. The volume of
mail not only undermines Wexler’s
affidavit, but is evidence from which a
reasonable jury could infer that the
letters to the plaintiffs were not in
fact reviewed by Wexler or any other
lawyer.
Wexler argues that the plaintiffs did
not conduct enough discovery, that they
should have broken down the 439,606
figure into initial collection letters,
follow-up collection letters, and
noncollection mailings (such as
receipts), and should have further broken
down the figure for initial collection
letters between bounced-check matters,
requiring minimal lawyer review, and
other matters, requiring more review. We
do not agree that the plaintiffs had to
do this in order to create a genuine
issue of material fact regarding the
defendant’s compliance with the Fair Debt
Collection Practices Act. Remember that
there is testimony by one of the firm’s
lawyers that the overwhelming bulk of the
mailings consist of collection letters.
Granted that some of them are follow-up
collection letters, which require less
review than initial collection letters,
and bounced-check collection letters,
which also may require less review than
other collection letters, we do not see
how these facts could be thought to put a
big dent in our 15-minute estimate, which
is the sort of estimate that a reasonable
jury might make and from which damaging
inferences concerning the veracity of
Wexler’s affidavit and the review of the
dunning letters sent the plaintiffs by
his firm arise.
Before a follow-up letter can be
responsibly approved by a lawyer, he must
inspect the file to determine that there
has been no partial payment or other
response from the debtor, and, if
interest on the debt is sought by the
creditor, to determine how much interest
is owing. See Miller v. McCalla, Raymer,
Padrick, Cobb, Nichols, and Clark,
L.L.C., 214 F.3d 872, 875-76 (7th Cir.
2000). This can be a complicated
calculation. Duffy v. Landberg, 215 F.3d
871, 875 (8th Cir. 2000). In the case of
a bounced-check follow-up letter, if
statutory penalties are sought the lawyer
must determine whether the grace period
for making good on such a check has
expired. See 810 ILCS 5/3-806. No doubt
the initial review of a bounced-check
matter takes little time, but it is hard
to believe that bounced checks are so
common that they could account for the
bulk of these enormous mailings.
An illuminating omission from the
defendant’s evidence is any indication of
how often, if ever, his review of a
collection file leads him to refuse to
approve a dunning letter and to take the
matter up with the client. If this
happens often, it would bolster his claim
to be engaged in a process of meaningful
review of clients’ referrals--but it
would also dramatize how little time he
has to review collection files, since
refusal of a referral and ensuing
discussion with the client about the
refusal must take more than 15 minutes.
One of the other lawyers in the firm
acknowledged at his deposition that "we
get cases all the time where individuals
claim that their checks were stolen and
that there were forgeries," and he said
that in each of those cases the firm
would follow up, for example by sending
the debtor a forgery affidavit to fill
out. A lawyer would have to review the
affidavit to determine whether to send a
follow-up letter to the affiant.
A further difficulty with the
defendant’s argument that an unknown
fraction of the letters are follow-up
rather than initial collection letters is
that in a deposition given in a similar
case just a few months before his
affidavit in this case, Wexler stated
that if the debtor doesn’t pay up after
receiving the initial collection letter,
the firm forthwith institutes legal
proceedings unless the debtor has either
died or declared bankruptcy. If this is
true (it can’t be--it is unbelievable
that Wexler’s firm would be authorized by
the client to file suit no matter how
trivial the amount of the unpaid debt--
but he can hardly gain a forensic benefit
from making an incredible admission),
there are few follow-up letters and an
enormous number of legal proceedings.
Those proceedings would leave the lawyers
with no time to review what must be a
colossal number of files.
The most practical, intuitive, and
readily applied criterion for granting
summary judgment is whether, if the
evidence gathered in discovery were the
evidence presented at trial, the party
moving for summary judgment (Wexler)
would be entitled to judgment as a matter
of law because no reasonable jury could
render a verdict for the opposing party
(the two plaintiffs). E.g., Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250-52
(1986); Wallace v. SMC Pneumatics, Inc.,
103 F.3d 1394, 1399 (7th Cir. 1997);
Russell v. Acme-Evans Co., 51 F.3d 64, 70
(7th Cir. 1995); Huang v. BP Amoco Corp.,
271 F.3d 560, 564 (3d Cir. 2001). A
reasonable jury could infer from the
evidence as we have summarized it that
the defendant violated the Fair Debt
Collection Practices Act by rubber
stamping his clients’ demands for
payment, thus misrepresenting to the
recipients of his dunning letters that a
lawyer had made a minimally responsible
determination that there was probable
cause to believe that the recipient
actually owed the amount claimed by the
creditor. A reasonable jury informed of
the size of the firm and the duties of
the three lawyers, which leave them
little time for review of collection
files, informed also of the circumstances
from which an estimate can be made of the
time that it takes a lawyer to review
such a file with sufficient care to be
able to make a responsible professional
judgment that a legally collectible debt
is owing, and informed finally of the
enormous mass of mailings, most
apparently of collection letters, in
relation to the number and available time
of Wexler’s tiny legal staff, could
rationally conclude that Wexler’s claim
to have reviewed these plaintiffs’ files
was false, that he had not reviewed them
(nor had any other lawyer), and therefore
that he had violated the Act. These
inferences are not certain, because no
matter how perfunctory the firm’s normal
review of creditor files and dunning
letters, it is always possible that
Wexler for obscure reasons did actually
review these two plaintiffs’ files. But
certainty of winning at trial is
obviously not a precondition to getting a
trial.
We need not determine in this case the
minimum amount of lawyer review required
to avoid misleading the debtor into
thinking that a lawyer has made a
responsible professional judgment about
the existence of a legally enforceable
debt. No reported decisions address that
issue and it may not have to be resolved
in this case. For if the jury believes
the plaintiffs, Wexler gave their dunning
letters no review at all, while if it
believes Wexler, he gave it more than
enough review. We say "more than enough"
because the Act can be complied with by
delegation of part of the review process
to a paralegal or even to a computer
program, see Avila v. Rubin, supra, 84
F.3d at 229-30; ABA Model Rule of
Professional Conduct 5.3 (materially
identical to Illinois Rule of
Professional Conduct 5.3), provided the
ultimate professional judgment concerning
the existence of a valid debt is reserved
to the lawyer. Avila v. Rubin, supra, 84
F.3d at 225, 229; Clomon v. Jackson,
supra, 988 F.2d at 1317, 1321. "An
attorney’s signature implies the attorney
has formed a professional judgment about
the debtor’s case." Avila v. Rubin,
supra, 84 F.3d at 229; see ABA Model Rule
of Professional Conduct Rule 5.5(b) and
comment 1 (materially identical to
Illinois Rule of Professional Conduct
5.5(b)). In an age of specialization,
professionals are not to be criticized
for identifying subroutines that
paraprofessionals can adequately perform
under a professional’s supervision. But
Wexler does not argue that he has
delegated some of the review tasks (for
example, ascertaining whether the amount
of the claim submitted by the client is
the same as the amount that appears on
the form letter prepared by the nonlawyer
collection agents whom Wexler employs) to
nonlawyers; he argues that he performs
all these tasks himself, implying that if
he is not telling the truth, no one
performs them. We can leave for a future
case the determination of the point at
which delegation is so extensive or
review so perfunctory that the lawyer’s
supposed authorship of the dunning letter
becomes a deception, not because there
was no review but because it was too
meager to be meaningful. We are not
suggesting a 15-minute minimum; we used
that assumption merely to illustrate that
a rational jury might find, given the
volume of mail, that it was unlikely that
Wexler had actually reviewed the
plaintiffs’ files before authorizing
dunning letters to be sent to them.
Reversed.