Veach, Gary L. v. Sheeks, Charles R. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1149
GARY L. VEACH,
Plaintiff-Appellant,
v.
CHARLES R. SHEEKS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00-C-1793—David F. Hamilton, Judge.
____________
ARGUED SEPTEMBER 17, 2002—DECIDED JANUARY 13, 2003
____________
Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Gary Veach appeals from the
district court’s grant of judgment as a matter of law in
favor of defendant Charles Sheeks. Veach alleged that
Sheeks sent him bill collection letters that included court
costs and attorney’s fees, which misstated the amount of
the debt Veach owed in violation of both the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.,
and Indiana’s deception statute, IND. CODE 35-45-5-39(a)(2).
We reverse the district court’s grant of summary judgment
in favor of Sheeks as to Veach’s federal claim because
court costs and attorney’s fees are not a component of a
“debt” under the FDCPA, affirm the state law claim decided
in Sheeks’s favor, and remand for further proceedings.
2 No. 02-1149
I. BACKGROUND
Veach’s girlfriend’s son was behind in his payments on
his car, which was in danger of repossession. As a favor,
Veach mailed to CreditNet, the finance company, a check
for $350 to help reduce the overdue balance on the car.
When the car was repossessed anyway, Veach stopped
payment on the check. CreditNet then sent Veach a writ-
ten notice indicating that the check had been dishonored
and demanding that Veach make full payment on the
check or face a lawsuit for appropriate legal remedies,
including three times the amount of the check, interest,
attorney’s fees and court costs. Since he was not a guaran-
tor of the car loan, Veach did not feel he owed any money
to CreditNet, and therefore was under no obligation to
honor the check, so he ignored the notice and did not
make any effort to reinstate payment on the check.
Faced with no response from Veach, CreditNet hired
Sheeks to file suit against Veach on the dishonored check.
Sheeks mailed Veach a notice of claim pursuant to the
FDCPA, which also served as a summons and complaint
for Indiana small claims court proceedings. In the small
claims court proceeding, with CreditNet represented by
Sheeks and Veach representing himself, the court found
in CreditNet’s favor, and issued judgment against Veach
for $1,050, attorney’s fees of $350, and court costs. A few
days later, Veach received a mailing from the court in-
forming him of the judgment, which he discarded.
As a result of Veach’s non-payment of the small claims
court judgment, his bank account was frozen, so he ap-
pealed the small claims court judgment to the Marion
County Circuit Court. After the appeal was filed, Credit-
Net voluntarily moved to set aside the underlying small
claims court judgment without prejudice. As a result of
the appeal and the setting aside of the small claims
court judgment against him, Veach never made any pay-
No. 02-1149 3
ments on the $350 check. Veach filed this FDCPA action
against Sheeks in federal court, which proceeded to a jury
trial. At the close of Veach’s case, Sheeks moved for judg-
ment as a matter as a law, which the district court
granted.1 Veach now appeals.
II. ANALYSIS
We first note that what is not at issue here is whether
or not Veach actually had an obligation to CreditNet for
$350. What is at issue is whether Sheeks’ mailing to Veach
complied with the FDCPA. We review the district court’s
finding of judgment as a matter of law de novo, drawing
all inferences in favor of Veach as the non-moving party.
See Mathur v. Bd. of Trustees of S. Ill. Univ., 207 F.3d
938, 941 (7th Cir. 2000).
A. Fair Debt Collection Practices Act Claim
Veach sued Sheeks under the remedial portion of the
FDCPA, 15 U.S.C. § 1692k, which allows him to recover
actual damages, a penalty of up to $1,000, and attor-
ney’s fees for a violation of the FDCPA. Veach argues that
Sheeks failed to comply with 15 U.S.C. § 1692g(a)(1), which
requires a debt collector’s notice of claim to specify the
“amount of the debt.” The notice of claim Sheeks sent Veach
described the “amount of the claimed debt” as “Remaining
principal balance $1,050.00; plus reasonable attorney fees
1
The district court did deny Sheeks’ motion for judgment as
a matter of law regarding Veach’s 15 U.S.C. § 1692i claim, based
on Sheeks’ filing his state court action in the incorrect county.
This claim went to the jury, who found that Sheeks violated
15 U.S.C. § 1692i, but absolved him of liability pursuant to the
bona fide error defense of 15 U.S.C. § 1692k(c). Veach does not
appeal the jury’s verdict.
4 No. 02-1149
as permitted by law, and costs if allowed by the court.”
Because the amount of attorney’s fees and court costs due
is not specified, Veach argues, there was not an “amount”
stated for FDCPA purposes.
Sheeks claims that a “debt” is defined in the FDCPA as
an “obligation or alleged obligation,” and that his general
reference to fees and costs is permissible according to
Indiana law and the FDCPA, since those were monies
which he would be allowed to collect had his court action
been successful. Also, Sheeks points out that to specify
an amount for fees and costs before they are finalized by
a court could cause Veach to pay more than the amount
actually imposed as a result of court proceedings. In
addition, Veach says the $1,050 figure is appropriate
because that amount is an “alleged obligation,” incorpor-
ating the treble damages which Sheeks was allowed to
pursue under Indiana Code 34-24-3-1.
We agree with Veach that Sheeks incorrectly stated
the amount of the debt, but not because he specified in-
determinate attorney’s fees and court costs. Rather, by
stating the amount of the debt as $1,050, Sheeks took
it upon himself to hold Veach liable for legal penalties
that had not yet been awarded, penalties that for FDCPA
purposes should have been separated out from the amount
of the debt.
When reviewing documents for compliance with the
FDCPA, such as the letters sent to Veach by Sheeks, we
use the “unsophisticated debtor” standard. See Marshall-
Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th
Cir. 2000); Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir.
1997). This assumes that the debtor is “uninformed, naive,
or trusting,” and that statements are not confusing or
misleading unless a significant fraction of the population
would be similarly misled. Pettit v. Retrieval Masters
Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 2000).
No. 02-1149 5
In our earlier attempt to clarify the “amount of debt”
provision of 15 U.S.C. § 1692g(a)(1), we described the
following language as a safe harbor for debt collectors
when the amount of the debt varies from day to day:
As of the date of this letter, you owe $___ [the exact
amount due]. Because of interest, late charges, and
other charges that may vary from day to day, the
amount due on the day you pay may be greater.
Hence, if you pay the amount shown above, an
adjustment may be necessary after we receive
your check, in which event we will inform you
before depositing the check for collection. For fur-
ther information, write the undersigned or call
1-800- [phone number].
Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, &
Clark, L.L.C., 214 F.3d 872, 876 (7th Cir. 2000). We sug-
gested this language to prevent confusion by debtors
for whom the “exact amount due” is a constantly shifting
target due to accruing interest and accumulating unpaid
charges. The reason for that variation, i.e., “interest, late
charges, and other charges,” is explained in the sentence
following the amount of the debt as of the letter’s date.
What is missing from that language is any mention of
court costs, attorney’s fees, or other penalties which may
be imposed by statute. That is because the “amount of
the debt” provision is designed to inform the debtor
(who, remember, has a low level of sophistication) of what
the obligation is, not what the final, worst-case scen-
ario could be. The definition of a “debt” according to the
FDCPA is of an “obligation or alleged obligation . . . whether
or not such obligation has been reduced to judgment.”
15 U.S.C. § 1692a(5). Since Veach cannot be held liable
for treble damages, court costs, or attorney’s fees until
there has been a judgment by a court, they cannot be part
of the “remaining principal balance” of a claimed debt.
Therefore, Sheeks’ notice misrepresented the actual debt
6 No. 02-1149
CreditNet claimed that it was owed by Veach, a misrepre-
sentation that violated 15 U.S.C. § 1692e.
Sheeks claims that the language he used was not mis-
leading because the notice of claim and small claims court
summons specified that “the Defendant is indebted to the
Plaintiff in the sum of $1,050 as treble damages for a
bad check in the sum of $350.00, plus reasonably [sic]
attorney fees as permitted by law.” This argument is be-
lied by the “unsophisticated debtor” standard which we
use to review FDCPA documents. While the state court
summons and notice of claim may have complied with the
language of the FDCPA, the other notice of claim, which
accompanied the state court summons and explicitly la-
beled “F.D.C.P.A.” across the top, provides the mislead-
ing information as described above. When there are two
different accounts of what a debtor actually owes the
creditor, that one version is the correct description does
not save the other, since under the unsophisticated debt-
or standard, “a letter may confuse even though it is not
internally contradictory.” Johnson v. Revenue Mgmt. Corp.,
169 F.3d 1057, 1060 (7th Cir. 1999).
We took the step once of providing “safe harbor” lan-
guage in Miller so that creditors could craft a notice for
claims that could pass muster under the FDCPA involv-
ing fluctuating balances that varied from day to day. We
do not think that we need to revisit our earlier lang-
uage, since we have no dispute as to the outstanding
balance. Sheeks knew that Veach allegedly owed Credit-
Net $350; by assuming the outcome of future events
in drafting his notice, Sheeks ran afoul of the FDCPA. We
leave for another day the question of whether it was
enough to implicate the remedial provisions of the FDCPA.
B. Indiana Deception Claim
In addition to his FDCPA claim, Veach asserted that he
was entitled to relief under Indiana Code 34-24-3-1, which
No. 02-1149 7
allows someone to bring a civil action for treble dam-
ages, costs, and attorney’s fees if they suffer “a pecuniary
loss” due to deception, defined in Indiana Code 35-43-5-
3(a)(2) as “knowingly or intentionally makes a false or
misleading written statement with intent to obtain prop-
erty, employment, or an educational opportunity.” The
district court granted judgment as a matter of law be-
cause, finding the notice of claim proper, it could not find
any intent to deceive using the notice and an inflated debt
amount. While we agree that judgment in favor of Sheeks
was proper as a matter of law as to this point, our find-
ing is predicated on the fact that Veach cannot show
that he suffered any pecuniary loss as a result of the no-
tice. “Pecuniary loss” is considered “a loss of money, or of
something by which money, or something of money
value may be acquired.” Americar Leasing, Inc. v. Maple,
406 N.E.2d 333, 335 (Ind. Ct. App. 1980). Since Veach
represented himself in his small claims court proceed-
ings, was represented by a public interest law firm in his
appeal of that proceeding, and did not pay any of the
judgment levied against him, he suffered losses of time
and effort, but not money. While his checking account
was frozen at some point because of his non-payment of
the check, he has made no claim of financial loss as a re-
sult. Therefore, he cannot bring a claim under Indiana
Code 34-24-3-1, and the district court’s grant of judgment
as a matter of law regarding this claim was proper.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of judgment as a matter of law in favor of Sheeks
as to Veach’s Indiana state law claim, REVERSE the dis-
trict court’s grant of judgment as a matter of law in favor
of Sheeks as to his FDCPA claims, and REMAND the case
to the district court for a new trial in a manner consis-
tent with this opinion.
8 No. 02-1149
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-13-03