John Burton v. Kohn Law Firm, S.C. , 934 F.3d 572 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2059
JOHN H. BURTON,
Plaintiff-Appellant,
v.
KOHN LAW FIRM, S.C., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cv-00594-NJ — Nancy Joseph, Magistrate Judge.
____________________
ARGUED NOVEMBER 29, 2018 — DECIDED AUGUST 9, 2019
____________________
Before FLAUM, RIPPLE, and MANION, Circuit Judges.
RIPPLE, Circuit Judge. The history of this litigation began
in the circuit court for Brown County, Wisconsin. Kohn Law
Firm, S.C. (“Kohn”), acting on behalf of Unifund CCR, LLC
(“Unifund”), a debt collection agency, brought an action
against John H. Burton. Unifund sought to collect from
Mr. Burton a debt incurred on a Citibank, N.A. (“Citibank”),
credit card account. Mr. Burton denied knowledge of, or any
association with, that account.
2 No. 18-2059
While that action was pending in state court, Mr. Burton
filed the present lawsuit against Kohn in the United States
District Court for the Eastern District of Wisconsin. He al-
leged that, with respect to the same debt, Kohn had violated
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§§ 1692–1692p, and the Wisconsin Consumer Act (“WCA”),
Wis. Stat. §§ 421–427, by filing the Wisconsin action against
Mr. Burton without first providing him notice of his right to
cure the default.
The Wisconsin state court later dismissed Kohn’s action
against Mr. Burton on the basis of Mr. Burton’s denial that
he was the individual who had incurred the underlying
debt. Mr. Burton then amended his complaint in this federal
action to add Unifund as a defendant. Following cross-
motions for summary judgment by the parties, the magis-
trate judge, sitting as the district court, entered judgment in
favor of Kohn and Unifund. 1 The district court held that
Mr. Burton could not proceed on his FDCPA or WCA claims
because he had failed to present sufficient evidence that the
debt incurred on the Citibank account was for personal, fam-
ily, or household purposes and therefore a “consumer debt.”
Mr. Burton now challenges that determination.
We agree with the district court. On the record before us,
Mr. Burton has not come forth with sufficient evidence that
the debt in question is a consumer debt. Accordingly, we af-
firm the judgment of the district court. 2
1 The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367.
2 We have jurisdiction over this appeal under 28 U.S.C. § 1291.
No. 18-2059 3
I
BACKGROUND
On February 17, 2015, Kohn, on behalf of Unifund,
brought a lawsuit against Mr. Burton in the Circuit Court of
Brown County, Wisconsin. Kohn claimed that Mr. Burton
had failed to make payments on a credit agreement with
Citibank. In his answer, Mr. Burton stated, “I have never had
any association with Unifund CCR, LLC in the past and do
not know who you are or what you are talking about, so I
strongly dispute this debt, with emphasis.” 3 He also asserted
counterclaims against Unifund, alleging that he had been
“‘ambushed’ by [Unifund’s] Summons and Complaint” and
that he “did not have any association with Unifund CCR,
LLC in the past, prior to this legal action.” 4 Mr. Burton fur-
ther contended that his “personal information has also been
compromised by the State of WI and 3rd party fraud may
have occurred” on the account in question. 5 He asserted as
affirmative defenses that Unifund had failed to provide him
notice of his right to cure the default prior to filing suit, in
violation of Wisconsin Statutes §§ 425.104 and 425.105, and
that there was a “Lack of Privity” because he “ha[d] never
entered into any contractual or debtor/creditor arrange-
ments” with Unifund. 6 Furthermore, at an evidentiary hear-
ing on July 6, 2015, Mr. Burton testified that he never had
3 R.43-1 at 1.
4 Id. at 2.
5 Id.
6 Id. at 4–5.
4 No. 18-2059
received statements, made payments, or made purchases on
the Citibank account.
On May 19, 2016, while the Wisconsin action was still
pending, Mr. Burton began this litigation in the district
court. He alleged that, “[t]o the extent that Burton entered
into a credit agreement with Citibank, NA, such agreement
was entered into for personal, family or household purpos-
es.” 7 He claimed that, by failing to provide written notice of
his right to cure the default on the Citibank agreement be-
fore bringing the state court action, Kohn had violated the
FDCPA, 15 U.S.C. §§ 1692d and 1692e, and the WCA, Wis.
Stat. § 427.104(1)(h) and (1)(j).
On September 8, 2016, the state court conducted a hear-
ing on a motion by Unifund to dismiss Mr. Burton’s coun-
terclaims. In response to a question from the court,
Mr. Burton’s counsel confirmed that his “client ha[d] testi-
fied under oath that he’s not the John H. Burton that they are
claiming had this account.” 8 Based on this information, the
state court immediately dismissed Unifund’s claims and
Mr. Burton’s counterclaims without prejudice. Mr. Burton
then amended his federal complaint, adding Unifund as a
defendant in this action. Kohn, Unifund, and Mr. Burton
then filed cross-motions for summary judgment.
On April 13, 2018, the district court decided the parties’
cross-motions. First, the court denied Mr. Burton’s motion
for summary judgment. Noting that “the FDCPA does not
protect all obligations, but only those involving ‘consumer’
7 R.24 ¶ 20.
8 R.53 at 23.
No. 18-2059 5
debt,” the court held that Mr. Burton had not established
that the underlying debt was a consumer debt. 9 The court
observed that, under the FDCPA, a consumer debt arises out
of a transaction that is “primarily for personal, family, or
household purposes.” 10 Similarly, the WCA only protects
“customers,” defined as persons “who seek[] or acquire[] re-
al or personal property, services, money or credit for per-
sonal, family, or household purposes.” 11
While continuing to maintain that he did not know any-
thing about the debt in question, Mr. Burton attempted to
demonstrate that the Citibank debt was incurred for “per-
sonal, family, or household purposes.” In this respect, he
submitted evidence that: (1) Kohn and Unifund described
themselves as debt collectors; (2) the billing statements
showed that the charges on the credit card were for person-
al, family, and household use; (3) the billing statements were
addressed to Mr. Burton personally at his residence; and (4)
in an email, a Citibank employee described the underlying
account as a “consumer account.” 12 The district court never-
theless determined that this evidence was insufficient to es-
tablish that the underlying debt was a consumer debt. The
court observed that the defendants’ status as debt collectors
did not establish that the particular debt in question here
necessarily was consumer debt. Nor did the fact that the de-
9 R.75 at 4 (citing Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111
F.3d 1322, 1325 (7th Cir. 1997)).
10 Id. (quoting 15 U.S.C. § 1692a(5)).
11 Id. at 6 (quoting Wis. Stat. § 421.301(17)).
12 R.42-3.
6 No. 18-2059
fendants sued Mr. Burton personally or that they repeatedly
included FDCPA disclaimers in their communications to
him establish that the debt was a consumer debt. The billing
statements sent to Mr. Burton’s residence also did not estab-
lish that the debts were consumer debts because individuals
often conduct business transactions at their home. Finally,
the court noted that Mr. Burton admitted that he had testi-
fied that he had not applied for and had no knowledge of
the transactions on the Citibank account. Viewing the evi-
dence in the light most favorable to the nonmoving party,
the court held that Mr. Burton was not entitled to judgment
as a matter of law.
The district court then granted Kohn and Unifund’s mo-
tions for summary judgment. At the outset of its analysis,
the court made clear that Mr. Burton had the burden of es-
tablishing that the underlying transactions were consumer
transactions. The court noted again that Mr. Burton had dis-
avowed, in sworn testimony, any knowledge of the underly-
ing credit card transactions. Turning to the email from the
Citibank employee describing the account as a “consumer
account,” 13 the court ruled that the email statement was in-
admissible hearsay and that none of the exceptions to the
rule against hearsay applied. The court also determined that
the billing statements did “not facially show that the charges
were made for personal use.” 14 Finally, the court considered
Mr. Burton’s repeated assertions that he had no knowledge
of, or association with, the Citibank account. Acknowledging
13 Id.
14 R.75 at 11.
No. 18-2059 7
that evidence of identity theft can be relevant to establishing
the existence of consumer debt, the court nevertheless con-
cluded that Mr. Burton had presented no such evidence in
this case. Therefore, the court held that Mr. Burton had “not
put forth any admissible evidence that show[ed] a genuine
factual dispute regarding whether the debt incurred was for
personal, family, or household use.” 15 The court accordingly
entered judgment for the defendants. Mr. Burton filed a
timely notice of appeal.
II
DISCUSSION
In this appeal, Mr. Burton focuses only on the district
court’s grant of summary judgment for the defendants. We
review de novo a district court’s decision to grant summary
judgment. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702
(7th Cir. 2009). Summary judgment is proper “if the movant
shows that 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). “Thus, to survive summary judgment,
the nonmoving party must present evidence sufficient to es-
tablish a triable issue of fact on all essential elements of [his]
case.” Lewis, 561 F.3d at 702. “If there is no triable issue of
fact on even one essential element of the nonmoving party’s
case, summary judgment is appropriate.” Id.
Here, we examine the record in the light most favorable
to Mr. Burton and grant him the benefit of all reasonable in-
ferences that may be drawn from the evidence. We will re-
15 Id. at 13.
8 No. 18-2059
verse the judgment only if we find a genuine issue concern-
ing any fact that might affect the outcome of the case. We
must remember, however, that “[o]nce a party has made a
properly-supported motion for summary judgment, the
nonmoving party may not simply rest upon the pleadings
but must instead submit evidentiary materials that set forth
specific facts showing that there is a genuine issue for trial.”
Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (inter-
nal quotation marks omitted). “The nonmoving party must
do more than simply show that there is some metaphysical
doubt as to the material facts.” Id. Further, “[t]he mere exist-
ence of a scintilla of evidence in support of the plaintiff’s po-
sition will be insufficient to show a genuine issue of material
fact.” Liu v. T & H Mach., Inc., 191 F.3d 790, 796 (7th Cir.
1999). “Rather, a genuine issue of material fact does not exist
unless there is sufficient evidence favoring the non-moving
party for a jury to return a verdict for that party.” Id.
We have clarified that “[t]he burden on the non-movant
is not onerous.” Id. “The nonmovant need not depose h[is]
own witnesses or produce evidence in a form that would be
admissible at trial, but []he must go beyond the pleadings
(e.g., produce affidavits, depositions, answers to interrogato-
ries, or admissions on file) to demonstrate that there is evi-
dence upon which a jury could properly proceed to find a
verdict in h[is] favor.” Modrowski v. Pigatto, 712 F.3d 1166,
1168–69 (7th Cir. 2013) (citation omitted) (internal quotation
marks omitted). “Moreover, the non-movant need not match
the movant witness for witness, nor persuade the court that
his case is convincing; he need only come forward with ap-
propriate evidence demonstrating that there is a pending
dispute of material fact.” Liu, 191 F.3d at 796–97. “[A] party
will be successful in opposing summary judgment only
No. 18-2059 9
when they present definite, competent evidence to rebut the
motion.” EEOC. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th
Cir. 2000) (quoting Smith v. Severn, 129 F.3d 419, 427 (7th Cir.
1997)).
Both the FDCPA and the WCA were enacted to protect
personal borrowers from abusive debt collection practices.16
It follows that, to state a claim under either statute, a plain-
tiff, who has the burden of proof on each element of the
cause of action, must demonstrate that the debt in question
arises out of a transaction incurred for personal, family, or
household purposes. The FDCPA defines a “debt” as “any
obligation or alleged obligation of a consumer to pay money
arising out of a transaction in which the money, property,
insurance, or services which are the subject of the transaction
are primarily for personal, family, or household purposes.” 15
U.S.C. § 1692a(5) (emphasis added). Similarly, the WCA pro-
tects transactions involving a “customer,” Wis. Stat.
§ 421.301(13), and defines a “customer” as “a person … who
seeks or acquires real or personal property, services, money
or credit for personal, family or household purposes,” id.
§ 421.301(17) (emphasis added). Expenses incurred for a
business purpose, by contrast, are outside the scope of both
16 See Suesz v. Med-1 Sols., LLC, 757 F.3d 636, 639 (7th Cir. 2014) (en banc)
(“The FDCPA is designed to protect consumer debtors against unscrupu-
lous methods of consumer debt collection.”); Kett v. Cmty. Credit Plan,
Inc., 596 N.W.2d 786, 794 (Wis. 1999) (observing that the WCA “is in-
tended to protect customers from ‘unfair, deceptive, false, misleading
and unconscionable practices by merchants,’ Wis. Stat. § 421.102(2)(b),
and ‘to permit and encourage the development of fair and economically
sound consumer practices in consumer transactions,’ Wis. Stat.
§ 421.102(2)(c)”).
10 No. 18-2059
statutes. See, e.g., Miller v. McCalla, Raymer, Padrick, Cobb,
Nichols, & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir. 2000) (in-
terpreting the FDCPA); Seeger v. AFNI, Inc., No. 05-C-714,
2007 WL 1598618, at *7 (E.D. Wis. June 1, 2007) (un-
published) (interpreting the WCA).
We also recognized recently that where, as here, a plain-
tiff maintains that the underlying debt was not his, he can
nonetheless claim FDCPA protection by showing that the
debt collector treated him as a “consumer” allegedly owing a
consumer debt. Loja v. Main St. Acquisition Corp., 906 F.3d
680, 684 (7th Cir. 2018) (holding “that the definition of ‘con-
sumer’ under the FDCPA includes consumers who have
been alleged by debt collectors to owe debts that the con-
sumers themselves contend they do not owe”). However, a
plaintiff proceeding under this theory still must offer evi-
dence to establish that the debt was a consumer debt: in other
words, that the debt was incurred for personal, family, or
household purposes.
This appeal therefore turns on the question whether
Mr. Burton submitted sufficient evidence to create a triable
issue of fact that the debt incurred on the Citibank account
was for personal, family, or household purposes. 17 Deter-
mining the purposes for which a debt was incurred is neces-
sarily a fact-based, case-specific inquiry. Mr. Burton submits
there are five pieces of evidence establishing that the debt
incurred on the Citibank account was consumer debt: (1) his
17 Because “[c]ourts construe the WCA in accordance with the policies of
the FDCPA,” we consider Mr. Burton’s FDCPA and WCA claims togeth-
er. Myers v. Americollect Inc., 194 F. Supp. 3d 839, 846 (E.D. Wis. 2016).
No. 18-2059 11
statements that, to the extent he was liable for the debt, it
was a consumer debt; (2) the defendants’ treatment of the
debt as a consumer debt by including FDCPA disclaimers on
the collection letters, suing Mr. Burton in his personal capac-
ity, and sending communications to his personal address; (3)
Kohn and Unifund’s description of their consumer debt col-
lection services on their websites; (4) a Citibank employee’s
email description of the underlying account as a “consumer
account”; 18 and (5) the billing statements listing purchases
made on the credit card for personal, family, or household
purposes. We consider each submission in turn.
Mr. Burton contends that his own statements suffice to
show that this was a consumer debt. 19 We cannot accept this
submission. Throughout the state court action, he represent-
ed that he had never applied for, had no knowledge of, and
made no purchases on or payments toward the Citibank ac-
count. 20 In his federal complaint, by contrast, he alleged that,
18 R.42-3.
19 Mr. Burton further contends that the district court should have con-
sidered evidence that his “identity was potentially stolen” in support of
his position that the debt was a consumer debt. Appellant’s Br. 36. Be-
cause Mr. Burton never raised an identity-theft argument before the dis-
trict court, cf. R.24; R.40; R.70, it is not properly before us in this appeal.
20 See R.43-1 at 1 (answering the complaint and stating, “I have never had
any association with Unifund CCR, LLC in the past and do not know
who you are or what you are talking about, so I strongly dispute this
debt, with emphasis”); id. at 2 (asserting a counterclaim that he was
“‘ambushed’ by [Unifund’s] Summons and Complaint,” and that he “did
not have any association with Unifund CCR, LLC in the past, prior to
this legal action”); id. at 5 (asserting as an affirmative defense “Lack of
Privity,” alleging that he had “never entered into any contractual or
(continued … )
12 No. 18-2059
“[t]o the extent that Burton entered into a credit agreement
with Citibank, NA, such agreement was entered into for per-
sonal, family or household purposes.” 21 This latter allegation
cannot be reconciled with his total disavowals in the state
court action. Nor has Mr. Burton submitted an affidavit or
any other sworn testimony in this litigation to support his
position in opposition to summary judgment. Without more,
the bald assertion in his complaint is hardly affirmative evi-
dence that the debt was a consumer debt. See, e.g., Martin v.
Allied Interstate, LLC, 192 F. Supp. 3d 1296, 1307 (S.D. Fla.
2016) (granting summary judgment for defendants where
plaintiff stated the eBay account was not hers, but offered no
evidence showing the account or debt was “consumer in na-
ture”). 22
( … continued)
debtor/creditor arrangements with” Unifund); R.46-3 at 6 (Mr. Burton
“denie[d] applying for the alleged account with alleged original creditor,
using or making payments on the alleged credit card.”); R.46-4 at 2
(notes of small claims court commissioner indicating that Mr. Burton had
testified under oath that he did not receive statements, make payments,
or make purchases on the Citibank account); R.49-5 at 2 (counsel con-
firming Mr. Burton had “testified under oath that he’s not the John H.
Burton that they are claiming had this account”).
21 R.24 ¶ 20.
22 See also Boosahda v. Providence Dane LLC, 462 F. App’x 331, 335 (4th Cir.
2012) (unpublished) (per curiam) (holding that plaintiff’s declaration
stating that he never used credit cards for any business purpose, which
conflicted with answers he provided in state court deposition and trial
testimony that he did not recall obtaining the credit cards and did not
remember making any purchases with the cards, was insufficient to cre-
ate a genuine issue of material fact); El-Bakara v. Weltman, Weinberg &
Reis Co., LPA, No. 2:17-cv-05138-MMB, 2019 WL 1258830, at *3 (E.D. Pa.
(continued … )
No. 18-2059 13
Mr. Burton next submits that Kohn and Unifund’s treat-
ment of the debt as a consumer debt is evidence that the debt
was, in fact, a consumer debt. In support, he notes that the
defendants included FDCPA disclaimers in their collection
letters, sued Mr. Burton personally in the state court action,
and sent communications to his home address. However,
courts have held repeatedly that merely including FDCPA
disclaimers on debt collection letters is insufficient evidence
that the debt was a consumer debt because debt collectors
may be exercising caution and including disclaimers on all
communications with debtors simply to avoid any FDCPA
liability. See, e.g., Gburek v. Litton Loan Serv. LP, 614 F.3d 380,
386 n.3 (7th Cir. 2010) (noting that evidence that letter in-
cluded disclaimer identifying it as attempt to collect a debt
“does not automatically trigger the protections of the
( … continued)
Mar. 19, 2019) (unpublished) (finding plaintiff failed to plead sufficient
facts to demonstrate the underlying debt was a consumer debt where he
did not “disclose any specific details about the underlying debt,” other
than that he believed it was owed by his son and that any alleged debts
“arose out of a transaction which was primarily for personal, family, or
household purposes” (internal quotation marks omitted)); Horton v.
Trans Union, LLC, No. 12-2072, 2015 WL 1055776, at *6 (E.D. Pa. Mar. 10,
2015) (unpublished) (holding plaintiff’s statements that she had no
knowledge of purchases, transactions, or payments made on credit card
accounts and that she was the victim of identity theft failed to demon-
strate the accounts involved consumer debts); Garcia v. LVNV Funding
LLC, No. A-08-CA-514-LY, 2009 WL 3079962, at *4–5 (W.D. Tex. Sept. 18,
2009) (unpublished) (holding plaintiff failed to meet his burden to prove
that collection activity arose out of consumer debt where plaintiff denied
debt was his and failed to produce any evidence regarding purpose for
which debt was incurred).
14 No. 18-2059
FDCPA”). 23 Nor is it helpful that the defendants brought the
state court action against Mr. Burton in his personal capaci-
ty; an individual can be sued in a personal capacity for a
business debt. 24 Further, it bears little on our inquiry that the
defendants sent communications to Mr. Kohn at his personal
address; an individual can carry on business activities from
his residence. 25
23 See also Evenson v. Palisades Collection, LLC, No. 2:13-cv-1226, 2015 WL
3466936, at *5 (S.D. Ohio June 1, 2015) (unpublished) (observing that,
even if defendants included validation information in collection commu-
nications, “the debt collector’s treatment of an obligation as one under
the FDCPA [was] irrelevant to … the nature of the obligation itself”);
Horton, 2015 WL 1055776, at *7 (same).
24 See, e.g., Matin v. Fulton, Friedman & Gullace LLP, 826 F. Supp. 2d 808,
812 (E.D. Pa. 2011) (finding that defendants’ attempt to collect from
plaintiff personally was irrelevant to the nature of the debt); see also
Boosahda, 462 F. App’x at 335 (holding that “the fact that the state court
action was initiated against [plaintiff] in his personal capacity” was “not
dispositive”); In re Pasley, 596 B.R. 577, 585 (Bankr. W.D. Ky. 2019) (hold-
ing that the fact that defendants sued plaintiff personally, rather than his
corporate identities, did not turn commercial debts into consumer debts).
25 See, e.g., Matin, 826 F. Supp. 2d at 812 (concluding that credit card ac-
count statement addressed to plaintiff at home address was insufficient
evidence of consumer debt); Holman v. W. Valley Collection Servs., Inc., 60
F. Supp. 2d 935, 936–37 (D. Minn. 1999) (finding that evidence that de-
fendants sent collection letters to plaintiff’s home did not convert com-
mercial debt into consumer debt); see also Evenson, 2015 WL 3466936, at *4
(finding evidence that defendants listed an individual, rather than a
business, as the account holder and listed a residential address for the
account were insufficient to show the debt was a consumer debt); Ander-
son v. AFNI, Inc., No. 10-4064, 2011 WL 1808779, at *14 (E.D. Pa. May 11,
2011) (unpublished) (concluding that evidence that debt was associated
(continued … )
No. 18-2059 15
Mr. Burton also invites our attention to evidence that
Kohn and Unifund advertised their services collecting con-
sumer debt on their websites. However, the defendants’
marketing materials generally describing their debt collec-
tion services do not establish that the debt they attempted to
collect in this case was a consumer debt.
Next, Mr. Burton seeks to rely on the email of a Citibank
employee, Cathrine Reinecke, stating that the account in de-
fault “was a consumer account.” 26 Reinecke sent this mes-
sage in response to an email from Mr. Burton’s counsel in-
quiring, “Is there any way of knowing whether this was a
business or consumer account? Does Citi mark the file in one
way or another?” 27 Characterizing the email as “a statement
made by someone other than the declarant to prove the truth
of the matter asserted (that the debt was consumer debt),”
the district court excluded this email as inadmissible hear-
say. 28 Mr. Burton submits the Reinecke email is not hearsay
but instead a statement of an opposing party under Federal
Rule of Evidence 801(d)(2)(C). In the alternative, he con-
tends, even if the email is hearsay, it is admissible under the
residual exception to the hearsay rule, Rule 807. We review
the district court’s evidentiary ruling for an abuse of discre-
( … continued)
with an individual and a residential address was insufficient to establish
debt was a consumer debt).
26 R.42-3.
27 Id.
28 R.75 at 10.
16 No. 18-2059
tion. United States v. Thornton, 197 F.3d 241, 250 (7th Cir.
1999).
A statement made out of court and offered to prove the
truth of the matter asserted is hearsay and is not admissible
into evidence. Fed. R. Evid. 801(c), 802. Here, Mr. Burton
sought to introduce Reinecke’s email to establish that “Citi
itself stated that the account was a consumer account.”29
Thus, the district court correctly characterized the statement
as hearsay.
The Rules of Evidence exclude from the definition of
hearsay a statement “offered against an opposing party” that
“was made by a person whom the party authorized to make
a statement on the subject.” Fed. R. Evid. 801(d)(2). The
Reinecke email does not satisfy this exception. Reinecke is an
employee of Citibank, which is not a party to this lawsuit.
Her statement therefore cannot be attributed to Kohn or to
Unifund, the opposing parties here. 30 Moreover, Mr. Burton
offers no evidence that Kohn or Unifund authorized
Reinecke to speak on behalf of either company on any sub-
ject, let alone about the account in default here. Consequent-
ly, her email is not a statement by an opposing party as con-
templated by Rule 801(d)(2)(C). See, e.g., Carlisle v. Deere &
Co., 576 F.3d 649, 656 (7th Cir. 2009) (concluding Rule
29 R.40 at 6.
30See, e.g., Linder & Assocs., Inc. v. Aetna Cas. & Sur. Co., 166 F.3d 547,
551–52 (3d Cir. 1999) (holding that a statement in a policy guide pro-
duced by another insurance company in another lawsuit was not an ad-
mission by Aetna).
No. 18-2059 17
801(d)(2)(C) did not apply to statements made by a company
with no authority to speak on Deere’s behalf).
Nor does the Reinecke email fall within the residual ex-
ception to the hearsay rule. Rule 807 provides that a state-
ment not otherwise subject to a hearsay exception “is not ex-
cluded by the rule against hearsay” if:
(1) the statement has equivalent circumstantial
guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which
it is offered than any other evidence that the
proponent can obtain through reasonable ef-
forts; and
(4) admitting it will best serve the purposes of
these rules and the interests of justice.
Fed. R. Evid. 807(a). In applying this rule, we have heeded
congressional guidance to construe “these conditions nar-
rowly” so that the residual exception does not swallow the
rule against hearsay. United States v. Sinclair, 74 F.3d 753, 759
(7th Cir. 1996) (interpreting predecessor to Rule 807).
The Reinecke email does not satisfy any of the conditions
of Rule 807. First, none of the usual “circumstantial guaran-
tees of trustworthiness” are present here. Fed. R. Evid.
807(a)(1). The statement in this email was not made under
oath or subject to cross-examination. Nor has Mr. Burton of-
fered any evidence as to Reinecke’s character for truthful-
ness or as to whether her statement was based on personal
knowledge. Second, Mr. Burton did not offer the email as
“evidence of a material fact.” Fed. R. Evid. 807(a)(2). Rather,
18 No. 18-2059
Mr. Burton sought to introduce the email to show that “Citi
itself stated that the account was a consumer account.” 31 As
the district court correctly noted, whether the account was a
consumer account did “not provide a factual dispute of
whether” the debt was a consumer debt. 32 Third, through
“reasonable efforts,” Mr. Burton could have obtained the
sworn deposition or in-court testimony of Reinecke or an-
other Citibank representative. Fed. R. Evid. 807(a)(3). Such
evidence would have been equally as probative, if not more
probative, than the email because such testimony would
have been subject to cross-examination about the nature of
the debt. 33 Fourth, Mr. Burton has not demonstrated that
admitting the Reinecke email will “serve the purposes of
these rules and the interests of justice.” Fed. R. Evid.
807(a)(4). Therefore, the district court did not abuse its dis-
cretion in excluding the Reinecke email as inadmissible
hearsay. We do not consider her out-of-court statement in
support of Mr. Burton’s contention that this was a consumer
debt.
31 R.40 at 6.
32 R.75 at 11. See, e.g., Toroussian v. Asset Acceptance, LLC, No. CV
12-03519 DDP (AGRx), 2013 WL 5524831, at *6 (C.D. Cal. Oct. 4, 2013)
(unpublished) (concluding that evidence that credit card was opened at a
retail bridal shop was insufficient to create triable issue of fact that debt
incurred on credit card was consumer debt).
33 Before the district court, counsel for Mr. Burton asserted that the de-
fendants “at every occasion attempted to interfere with [plaintiff’s] tak-
ing a deposition of Citi.” R.55-1 at 3. However, Kohn submitted that
counsel for Mr. Burton “failed to timely depose a Citibank representative
due solely to his failure to schedule” the deposition. R.58 at 2.
No. 18-2059 19
Finally, Mr. Burton contends that the billing statements
on the Citibank account demonstrate that the debt in ques-
tion was consumer debt. Evidence of the types of purchases
made on the credit card may be relevant to the question
whether those purchases were made primarily for personal,
family, or household purposes. 34 Here, Mr. Burton intro-
duced billing statements showing that most of the charges
on the Citibank account were purchases of low dollar
amounts, under fifty dollars per transaction. The credit card
was used primarily at gas stations and convenience stores in
and around Green Bay, Wisconsin. There were also a few
charges placed at office supply and auto parts stores, a local
pizza establishment, and the local school district. None of
these transactions, based on either the amount charged or
the vendor, obviously signal that these were purchases made
for a business purpose.
At the same time, however, the billing statements shed
no light on why these charges were incurred. Given that
Mr. Burton is unable to explain whether these transactions
were for a consumer as opposed to a business purpose, the
billing statements do not provide enough information for a
trier of fact to conclude these purchases were made for per-
sonal, family, or household purposes. Cf. Matin v. Fulton,
Friedman & Gullace LLP, 826 F. Supp. 2d 808, 812 (E.D. Pa.
2011) (finding the court “lack[ed] sufficient information to
determine whether the purchases were made for primarily
34 See, e.g., Garcia, 2009 WL 3079962, at *4 (acknowledging that “what the
credit card was used for … could perhaps create a fact issue on whether
that use was primarily for personal, family, or household purposes”
(emphasis in original)).
20 No. 18-2059
personal, family, or household purposes” based on account
statement where plaintiff was “unable to recall what pur-
chases she made on her credit card and the purpose for those
purchases”). 35
On this record, therefore, we hold that the district court
properly determined that Mr. Burton has failed to put for-
ward sufficient evidence to create a triable issue of material
fact that the debt incurred on the Citibank account was con-
sumer debt. The district court properly granted summary
judgment in favor of the defendants on Mr. Burton’s FDCPA
and WCA claims.
Conclusion
Because Mr. Burton failed to present sufficient evidence
that the debt on the Citibank account was incurred for per-
sonal, family, or household purposes, we affirm the judg-
ment of the district court.
AFFIRMED
35 See also Boosahda, 462 F. App’x at 335 (deferring to the district court’s
finding, based on the billing statements, “that any or all of the purchases
could have been business expenses”).