Gonzalez v. Cullimore ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 9IN THE
SUPREME COURT OF THE STATE OF UTAH
TAMERA GONZALEZ, SEBASTIAN GONZALEZ,
and MARIA ANTONIETA GUJARDO,
Appellants,
v.
KIRK CULLIMORE, JR.; The Law Offices of KIRK A. CULLIMORE,
Appellees.
PEMBERLEY AT ROBINSON’S GROVE CONDOMINIUM
UNIT OWNERS ASSOCIATION,
Plaintiff,
v.
TAMERA GONZALEZ,
Defendant.
No. 20160373
Filed February 26, 2018
On Direct Appeal
Fourth District, American Fork
The Honorable Thomas Low
No. 100100829
Attorneys:
Brian W. Steffensen, Salt Lake City, for appellants
Kirk Cullimore, Derek J. Barclay, Kirk A. Cullimore, Jr., Sandy,
for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE, JUSTICE HIMONAS, JUSTICE PEARCE
and JUDGE HYDE joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
and DISTRICT COURT JUDGE NOEL S. HYDE sat.
GONZALEZ v. CULLIMORE
Opinion of the Court
JUSTICE PETERSEN became a member of the Court on
November 17, 2017, after oral argument in this matter,
and accordingly did not participate.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 Tamara Gonzalez, an owner of a condominium unit within
Pemberley at Robinson’s Grove Condominium Unit Owners
Association (Association), allegedly fell behind on paying her
Association assessment fees. The Association hired a law firm to
collect on the delinquent fees. The firm sent demand letters to
Ms. Gonzalez, who upon receipt of the letters, claimed that the
letters misrepresented the amount she actually owed. When
negotiations between the Association and Ms. Gonzalez fell through,
the Association again contacted the law firm for collection services,
and the firm subsequently filed a lawsuit against Ms. Gonzalez on
behalf of the Association. After several years of proceedings,
Ms. Gonzalez brought a counterclaim against the law firm, asserting,
in addition to other claims, that the law firm had violated § 1692e of
the Fair Debt Collection Practices Act (FDCPA) 1 by misrepresenting
the character, amount, and legal status of the debt she owed in the
law firm’s demand letters and in its complaint.
¶ 2 The law firm brought a motion for summary judgment on
the counterclaims and the trial court granted the motion in part,
dismissing Ms. Gonzalez’s § 1692e counterclaims. In support of its
dismissal, the court relied on a Utah Court of Appeals decision,
Midland Funding LLC v. Sotolongo, 2 which held that the FDCPA was
not a strict liability statute and that a debt collector may rely on its
client’s representations of the amount of the debt owed without
incurring FDCPA liability. The district court held, pursuant to
Midland Funding, that the law firm relied on the Association’s
representation and so was not liable under § 1692e of the FDCPA.
¶ 3 Ms. Gonzalez appeals the district court’s dismissal of her
§ 1692e claims and also contends that we should abrogate the
holding in Midland Funding. She argues that the Midland Funding
court applied the wrong standard for evaluating § 1692e claims. She
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1 15 U.S.C. §§ 1692–1692p (2016).
2 2014 UT App 95, 325 P.3d 871.
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further argues that her § 1692e claims should be evaluated under a
strict liability standard (a standard in which a debtor is not required
to show that a debt collector intended or had knowledge that it was
misrepresenting the character or amount of the debt) and that the
district court was therefore wrong in dismissing her claims merely
because the law firm produced evidence showing that it had relied
on the representations it had received from the Association.
Ms. Gonzalez asks this court to overturn Midland Funding and to
reverse the district court’s partial grant of summary judgment.
¶ 4 We hold that the court of appeals erred in the standard it
applied to § 1692e claims and accordingly abrogate Midland Funding.
Not only does Midland Funding misstate the Ninth Circuit Court of
Appeals’ standard for § 1692e claims, but the standard set forth in
Midland Funding clearly contradicts the language of the FDCPA.
Additionally, a strict liability interpretation of § 1692e is consistent
with § 1692k(c) of the FDCPA. That section creates an affirmative
defense to strict liability for “bona fide errors”—those errors that are
unintentional and not preventable by procedures the debt collector
should have in place to check the accuracy of representations made
to it by clients. Reading a scienter requirement into § 1692e, as
Midland Funding suggests, would render § 1692k(c) superfluous—an
action we should avoid. We accordingly follow the overwhelming
majority of courts and hold § 1692e claims to a strict liability
standard. 3
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3 Although we refer to the FDCPA, including § 1692e, as a strict
liability statute, we acknowledge that this characterization does not
entirely comport with the way in which the term “strict liability” is
traditionally used. Courts are virtually unanimous in labeling the
FDCPA a strict liability statute, but they generally do so because the
statute imposes liability without proof of an intentional violation,
not because the defendant’s culpability is completely irrelevant. See
Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir.
2011) (“The FDCPA is a strict liability statute to the extent it imposes
liability without proof of an intentional violation.”); LeBlanc v.
Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (“The
FDCPA does not ordinarily require proof of intentional violation
and, as a result, is described by some as a strict liability statute.”).
The defendant’s culpability is relevant under the FDCPA, but only in
determining whether the defendant has met his or her affirmative
defense under § 1692k(c). See 15 U.S.C. § 1692k(c) (“A debt collector
may not be held liable in any action brought under this subchapter if
(Continued)
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Opinion of the Court
¶ 5 Even under a strict liability standard, however, a plaintiff is
still required to make a threshold showing that a misrepresentation
occurred under the FDCPA. And, because the law firm was the
moving party on summary judgment in this case, it bore the initial
burden of showing that it did not engage in an act prohibited by the
FDCPA—or, in other words, that there is no genuine issue of
material fact as to its claims that it made no false representation of
the character, amount, or legal status of Ms. Gonzalez’s debt. Yet the
district court failed to determine whether the law firm had met its
initial burden. We therefore remand the case to the district court to
make such determination.
Background
¶ 6 Tamara Gonzalez purchased a condominium unit in 2006
located within Pemberley at Robinson’s Grove in Pleasant Grove,
Utah. She purchased her unit subject to a validly recorded
Declaration of Condominium, a document containing certain
covenants, conditions, and restrictions on the property, one of which
required the payment of monthly assessments to cover maintenance
and services provided by the Condominium Unit Owners
Association. The Declaration also provided that a unit owner would
be liable to the Association for late payment fees, interest, and cost
incurred in collecting on delinquencies of such assessments,
including reasonable attorney fees. Sometime in 2009, Ms. Gonzalez
allegedly fell behind on her assessment payments. In November
2009, the Association hired the Law Office of Kirk A. Cullimore (the
Cullimore firm) to collect on Ms. Gonzalez’s delinquent assessments.
At the time the Cullimore firm was hired, Sam Bell, an attorney for
the Cullimore firm, reviewed the Association’s ledger to see if Ms.
Gonzalez was in arrears. Shortly thereafter, the Cullimore firm sent
Ms. Gonzalez demand letters, notifying her that her account with the
Association was in arrears and demanding payment. The Cullimore
firm also recorded a lien on her unit, pursuant to the Declaration.
After receiving these letters, Ms. Gonzalez contacted the Cullimore
firm and the Association by phone and disputed the amount of the
debt represented by the Cullimore firm. Thereafter, Ms. Gonzalez
the debt collector shows . . . that the violation was not
intentional . . . .”). Thus, when we describe the FDCPA as a strict
liability statute, or § 1692e as a strict liability provision, we mean the
plaintiff does not need to prove culpability of the defendant to
establish prima facie liability under the act.
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and the Association entered an oral payment agreement, but the
agreement soon fell apart.
¶ 7 In January 2010, the Association again hired the Cullimore
firm to commence collection proceedings on Ms. Gonzalez’s
delinquent fees. Mr. Bell, who was still working for the Cullimore
firm, again checked the Association’s ledger to confirm that
Ms. Gonzalez’s account with the Association was delinquent. The
Cullimore firm then filed a lawsuit on behalf of the Association on
March 12, 2010. Ms. Gonzalez failed to file an answer within the
prescribed time and a default judgment order was entered against
her on March 14, 2011. Mr. Bell thereafter left the Cullimore firm and
started SEB Legal, LLC. The Association transferred its business,
including Ms. Gonzalez’s collection lawsuit, to SEB Legal, who
represented the Association through the rest of its litigation.
¶ 8 After two years of negotiations and proceedings, the parties
eventually stipulated to setting aside the original default judgment
against Ms. Gonzalez. The district court set aside the judgment and
granted Ms. Gonzalez leave to answer and make counterclaims. Ms.
Gonzalez filed her answer and counterclaim on December 15, 2013,
asserting claims under the FDCPA against the Law Office of Kirk A.
Cullimore and Kirk A. Cullimore, Jr. (collectively, Cullimore) and
SEB Legal, LLC, Sam Bell, and Jayln Peterson (collectively, SEB). Ms.
Gonzalez’s counterclaim included, among others, claims under
§ 1692e of the FDCPA for false representation of the character,
amount, and legal status of the debt she owed. Specifically,
Ms. Gonzalez argued that SEB and Cullimore had falsely
represented the amount she owed the Association in the demand
letters she received and in the lawsuit commenced against her. She
also asserted that both law firms continued to falsely represent the
amount and character of the debt she owed throughout the course of
litigation. Ms. Gonzalez attached to her counterclaim a detailed
accounting of the assessment payments she owed and those she paid
during the years of 2009 to 2013. She also attached a verification
statement, in which she swore, under penalty of perjury, that the
factual allegations within her counterclaim were true and that she
did not owe the amount claimed by the Association, SEB, or
Cullimore.
¶ 9 Both SEB and Cullimore filed motions for summary
judgment seeking to dismiss Ms. Gonzalez’s § 1962e counterclaims.
In support of these motions, the law firms provided the court with
the Association’s ledger on Ms. Gonzalez’s account, a copy of the
Declaration, Ms. Gonzalez’s warranty deed, and an affidavit signed
by Mr. Bell stating that he had verified Ms. Gonzalez’s arrearage on
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Opinion of the Court
the Association’s ledger when Cullimore initially received her file
from the Association in November 2009, and again in January 2010,
before Cullimore filed suit against Ms. Gonzalez with the district
court. Ms. Gonzalez filed memoranda in opposition to these
summary judgment motions and provided the court, through
reference to her counterclaim, with a detailed spreadsheet
illustrating the payments she allegedly had made to the Association
from 2009 to 2013, her calculated delinquency for each month, as
well as a sworn statement from Ms. Gonzalez affirming that the facts
alleged in the counterclaim were true and that she did not owe the
purported amount.
¶ 10 The trial court granted both motions in part and dismissed
Ms. Gonzalez’s § 1692e claims, leaving her other claims intact. Before
the court ruled on Cullimore’s motion, but after it had dismissed
Ms. Gonzalez’s § 1692e claims against SEB, Ms. Gonzalez moved the
court to reconsider its order on SEB’s motion, but the court issued an
order refusing to do so. In all three orders from the district court—
the order on SEB’s summary judgment motion, the order on
Cullimore’s summary judgment motion, and the order denying
reconsideration of its ruling on SEB’s summary judgment motion—
the court held Ms. Gonzalez was precluded from bringing her
§ 1692e claims against Cullimore and SEB by Midland Funding LLC v.
Sotolongo, 4 a Utah Court of Appeals decision, because SEB and
Cullimore had reasonably relied on the Association’s representation
of the character and amount of debt Ms. Gonzalez allegedly owed.
¶ 11 After the district court denied Ms. Gonzalez’s motion to
reconsider, Ms. Gonzalez entered into a settlement agreement with
SEB and the Association. She therefore did not seek reversal of the
district court’s order on SEB’s motion or the order denying
reconsideration of the court’s ruling on SEB’s motion. Instead,
Ms. Gonzalez timely appealed the court’s order granting in part
Cullimore’s motion for summary judgment. 5 On appeal,
Ms. Gonzalez argues that Cullimore falsely represented the amount
of debt Ms. Gonzalez owed to the Association in its demand letters
and in the complaint Cullimore filed. Ms. Gonzalez also argues that
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4 2014 UT App 95, 325 P.3d 871.
5 Although Ms. Gonzalez repeatedly states that she is not
challenging the district court’s order on SEB’s motion, she
consistently asks this court to reverse the analysis that the district
court relied upon in its order on SEB’s motion.
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Cullimore improperly sought assessment fees altogether because the
Association allegedly failed to follow all legal requirements in
assessing the fees.
¶ 12 We have jurisdiction to hear this case pursuant to Utah
Code section 78A-3-102(3)(b). 6
Standard of Review
¶ 13 Ms. Gonzalez raises two intertwined issues on appeal: first,
whether the court of appeals’ decision in Midland Funding applied
the wrong standard in evaluating § 1692e claims, and second,
whether the district court erred in granting summary judgment
dismissing Ms. Gonzalez’s § 1692e claims. This court is not, of
course, bound by prior decisions of the court of appeals.7
Additionally, we “review a district court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness,
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6 The FDCPA is a federal statute, but this does not limit our
authority to review claims arising under its provisions. Absent some
explicit provision stating otherwise, state courts are presumed to
have concurrent jurisdiction with federal courts over the
interpretation and application of federal statutes. See Haywood v.
Drown, 556 U.S. 729, 735 (2009) (“State courts . . . have . . . concurrent
jurisdiction in all cases arising under the laws of the Union, where it
was not expressly prohibited” (quoting THE FEDERALIST NO. 82, at
132 (Alexander Hamilton) (E. Bourne ed. 1947, Book II))); Kish v.
Wright, 562 P.2d 625, 627 (Utah 1977) (“State courts can exercise
concurrent jurisdiction with the Federal courts in cases arising under
the . . . laws and treaties of the United States . . . where it is not
excluded by express provision” (citation omitted)). The FDCPA does
not expressly prohibit state court review of claims brought under its
purview; rather, it explicitly authorizes courts of competent
jurisdiction to conduct such review. 15 U.S.C. § 1692k(d) (“An action
to enforce any liability created by this subchapter may be brought in
any appropriate United States district court . . . or in any other court
of competent jurisdiction . . . .”). We therefore have authority to
review FDCPA claims properly brought before us.
7 See State v. Francis, 2017 UT 49, ¶ 16, --- P.3d --- (“A
court of appeals pronouncement does not, of course, bind this court
to a course of action.”); Geisdorf v. Doughty, 972 P.2d 67, 70 n.1 (Utah
1998) (“A decision by the Utah Court of Appeals [is] not binding on
this court . . . .”).
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Opinion of the Court
viewing the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party.” 8 “Summary
judgment is appropriate when ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.’” 9
Analysis
¶ 14 The purpose of the FDCPA 10 is to “eliminate abusive debt
collection practices by debt collectors, to insure that those debt
collectors who refrain from using abusive debt collection practices
are not competitively disadvantaged, and to promote consistent
State action to protect consumers against debt collection abuses.” 11
The heart of the FDCPA—§ 1692e—prohibits debt collectors from
using “any false, deceptive, or misleading representations or means
in connection with the collection of any debt.” 12 Specifically, § 1692e
provides that a debt collector is liable when it makes “false
representation of (A) the character, amount, or legal status of any
debt; or (B) any services rendered or compensation which may be
lawfully received by any debt collector for the collection of a debt.” 13
¶ 15 In her counterclaim, Ms. Gonzalez asserted that Cullimore
violated § 1692e by making a “false representation of the character,
amount, and legal status” of her debt in its demand letters and in
Cullimore’s complaint. Cullimore argued, and the district court
agreed, that it was not liable under § 1692e because it had relied on
representations from the Association as to the character, legal status,
and amount owed and simply relayed this information to
Ms. Gonzalez. In its ruling and order on Cullimore’s summary
judgment motion, the district court implicitly concluded, by relying
on Midland Funding LLC v. Sotolongo, 14 that § 1692e was not a strict
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8 Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 14, --- P.3d ---
(internal quotation marks omitted) (citations omitted).
9 Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6,
¶ 15, 367 P.3d 994 (quoting UTAH R. CIV. P. 56(a)).
10 15 U.S.C. §§ 1692–1692p (2012).
11 Id. § 1692(e).
12 Id. § 1692e.
13 Id. § 1692e(2).
14 2014 UT App 95, 325 P.3d 871.
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liability statute. 15 Accordingly, the district court reasoned that
because Cullimore “rel[ied] on its client’s representation as to the
amount of the debt,” and Ms. Gonzalez could not show that
Cullimore had knowledge that the Association’s representations to it
were false, it was not subject to liability under the FDCPA.
¶ 16 Cullimore argues on appeal that the district court’s
interpretation of § 1692e is correct and precludes liability in this case.
Conversely, Ms. Gonzalez argues that her § 1692e claims were
improperly dismissed by the district court because the court relied
on the incorrect analysis in Midland Funding. Ms. Gonzalez asserts
that § 1692e establishes a strict liability standard that does not
require a showing of intent, knowledge, or negligence, and that mere
reliance on a client’s representation does not automatically preclude
liability under § 1692e. We agree with Ms. Gonzalez and, because the
standard set forth in Midland Funding is incorrect, we abrogate it. We
further remand this case to the district court to consider whether
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15 Although the district court did not explicitly state that the
FDCPA is not a strict liability statute in its order on Cullimore’s
summary judgment motion, the court did express this opinion in
Ms. Gonzalez’s companion suit against SEB. In its order on
Ms. Gonzalez’s motion to set aside the dismissal of her § 1692e
counterclaims against SEB—a motion which addressed the same
issues as the case before us—the district court stated:
The basis of [Ms. Gonzalez]’s motion is that 1692e is a
strict liability statute and that the Utah appellate
opinion holding otherwise is in error.
The court declines to reconsider its September 19,
2014, ruling and order on the 1692e claims. It
acknowledges that there is a split of opinion,
nationwide, on the issue of whether the FDCPA is a
strict liability statute. However, the Midland Funding v.
Sotolongo case is a 2014 Utah appellate case that has not
been reversed or disavowed. It is binding on this court,
and this court lacks the prerogative to disregard it.
Moreover, while there are federal rulings and opinions
that disagree with Midland Funding, there are no
opinions from the Tenth Circuit Court of Appeals that
have done so. Therefore, this court declines to
reconsider its September 19, 2014 ruling.
(Citation omitted.)
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Opinion of the Court
there is a genuine issue of material fact as to whether Cullimore
made a false representation of the amount, character, or status of the
debt Ms. Gonzalez allegedly owed.
I. The Court of Appeals’ Holding in Midland Funding is Incorrect
Because § 1692e is a Strict Liability Provision
¶ 17 Cullimore argues that the district court correctly dismissed
Ms. Gonzalez’s § 1692e counterclaims because, as the court of
appeals concluded in Midland Funding LLC v. Sotolongo, 16 the FDCPA
is not a strict liability statute. According to Cullimore, “to maintain a
claim for misstating the amount of debt” under § 1692e of the
FDCPA, “a debtor must show that the debt collector knowingly
misrepresented the amount of the debt.” Cullimore argues that the
district court correctly held that “a debt collector may rely on its
client’s representations as to the amount of debt” without violating
the statute and has no duty to “independently investigate the
amount owed.” In other words, Cullimore contends, and the district
court agreed, that under Midland Funding a consumer cannot make a
successful § 1692e claim when the debt collector merely relays the
creditor’s representation of the amount owed to the consumer, even
when the consumer adamantly denies the amount owed. This
conclusion is wrong and stems from the Midland Funding court’s (1)
incorrect application of caselaw and (2) incorrect reading of the
FDCPA. We therefore overturn Midland Funding on these two bases.
A. The Midland Funding Court Incorrectly Relied on Clark, Which Held
the Opposite of Midland Funding, and Bleich, Which Confused the
Correct Standard Under § 1692e
¶ 18 We first abrogate Midland Funding because the court of
appeals incorrectly based its holding on Clark v. Capital Credit &
Collection Services, Inc., 17 which actually stands for a proposition
directly opposite to the one adopted by the Midland Funding court. In
Midland Funding, the Utah Court of Appeals assessed a consumer’s
§ 1692e claim that a debt collector misrepresented the amount of
debt the consumer owed. 18 The court cited Clark for the assertion
that, under § 1692e, “[a] debt collector may rely on its client’s
representations as to the amount of the debt” without violating the
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16 2014 UT App 95, 325 P.3d 871.
17 460 F.3d 1162 (9th Cir. 2006).
18 2014 UT App 95, ¶ 3.
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statute. 19 The Midland Funding court also concluded that “Clark . . .
clearly holds that debt verification involves ‘nothing more’ than
confirming in writing the amount owed with the creditor and that
the FDCPA imposes no duty on a debt collector to independently
investigate the claimed debt.” 20 The Midland Funding court therefore
concluded that any § 1692e claim asserting that the debt collector
unreasonably relied on the creditor’s representation, even absent
further proof of intent or knowledge of the misrepresentation on the
part of the debt collector, “is foreclosed by Clark.” 21
¶ 19 The Midland Funding court misconstrued Clark. While each
of the assertions the Utah Court of Appeals cited above came from
the Clark opinion, the Ninth Circuit made such statements solely in
reference to claims brought under § 1692g of the FDCPA, as opposed
to § 1692e—the provision in dispute in Midland Funding.22 This is an
important distinction. Section 1692g of the FDCPA deals with the
“[v]alidation of debts,” requiring a debt collector to follow specific
notice provisions when initially communicating the debt to the
consumer, and, upon written request of the consumer, to “obtain
verification of the debt or a copy of a judgment” from the creditor
and mail such verification or judgment to the consumer. 23 Section
1692e, on the other hand, deals with “any false, deceptive, or
misleading representation[s] . . . in connection with the collection of
any debt”—not notice procedures and debt verification requests. 24
¶ 20 In Clark, the Ninth Circuit responded to one of the plaintiffs’
arguments that defendants had “failed to verify properly the alleged
debt, violating § 1692g.” 25 Specifically, plaintiffs asked the Ninth
Circuit to hold that a debt collector’s duty to verify the debt under
§ 1692g also requires a debt collector to carefully review the
creditor’s representation of the balance, track the transactions that
have occurred between the creditor and debtor in the past, and
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19 Id. ¶ 23.
20 Id. ¶ 24 (citation omitted).
21 Id.
22 Clark, 460 F.3d at 1173.
23 15 U.S.C. § 1692g(a)(4).
24 Id. § 1692e.
25 Clark, 460 F.3d at 1173.
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Opinion of the Court
verify that the balance is still unpaid. 26 The Ninth Circuit refused to
establish such a “high threshold” under § 1692g, and instead chose
to adopt a more “reasonable standard.” 27 In doing so, the Clark court
held that, “[a]t the minimum, ‘verification of a debt involves nothing
more than the debt collector confirming in writing that the amount
being demanded is what the creditor is claiming is owed.’” 28 Because
the debt collectors in Clark, upon written request for verification by
the plaintiffs, “obtained information from [the creditor] about the
nature and balance of the outstanding bill and provided the
[plaintiffs] with documentary evidence in the form of an itemized
statement,” the Clark court held the debt collectors “were entitled to
rely on their client’s statements to verify the debt . . . and they did
not violate §§ 1692g(a)(4) or 1692g(b).” 29 But none of the assertions
the Midland Funding court credited to Clark dealt with § 1692e.
Rather, the “reasonable standard” the Clark court established—and
the Midland Funding court adopted—was intended to apply only to
debt verification under § 1692g.
¶ 21 The very next section in Clark further supports this notion.
Immediately after setting forth a debt collector’s duty under § 1692g,
the Ninth Circuit evaluated a § 1692e claim, noting that “[w]hether a
violation of § 1692e may be predicated upon conduct that is neither
knowing nor intentional appears to be an issue of first impression in
the Ninth Circuit.” 30 The Clark court then went on to expressly agree
with the Seventh and Second Circuits that Ҥ 1692e applies even
when a false representation was unintentional.” 31 While the Clark
court noted that a few courts had “[e]xamined [§ 1692e] in isolation”
and concluded that “[t]o successfully state a claim pursuant to
§ 1692e(2), [the plaintiff] must show that [the debt collector]
knowingly or intentionally misrepresented the amount of the debt in
its collection letters,” 32 it decided to follow the majority of
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26 Id.
27 Id.
28 Id. at 1173–74 (emphasis added) (citation omitted).
29 Id. at 1174.
30 Id.
31 Id. at 1175 (citation omitted).
32 Id. at 1174–75 (quoting McStay v. I.C. Sys., Inc., 174 F. Supp. 2d
42 (S.D.N.Y. 2001) (third, fourth, and fifth alterations in original)).
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jurisdictions and held that the FDCPA’s “broad language seems to
make FDCPA a strict liability statute.” 33 Yet the Midland Funding
court concluded that Clark expressly required knowledge or intent to
bring a § 1692e claim. Thus, the Midland Funding court
fundamentally misconstrued Clark.
¶ 22 Also, the Midland Funding court relied on a second source
that, unlike Clark, did incorrectly apply § 1692g’s standard to § 1692e
claims. In Midland Funding, the court stated that an “allegation that
the debt is invalid, standing alone, cannot form the basis of a lawsuit
alleging fraudulent or deceptive practices in connection with the
collection of a debt.” 34 Cullimore relies heavily on this rule to argue
that Ms. Gonzalez presented the district court with no genuine issue
of material fact on her § 1692e claims. The Midland Funding court
took this rule verbatim from Bleich v. Revenue Maximization Group.,
Inc. 35 But the Bleich court, like the Midland Funding court, incorrectly
applied § 1692g’s standard to § 1692e—an action the Clark court
expressly precluded. And the Bleich court’s confusion of standards in
the FDCPA has been rejected by several courts. 36 For example, in
Healey v. Trans Union LLC, 37 a federal district court reviewed the
same argument Cullimore makes today, and that the Midland
Funding court’s holding supports, and identified the error in such
argument:
[The debt collector] argues the [consumer] cannot
prove her § 1692e(2) claim because the FDCPA does
not impose on a debt collector any duty to
independently investigate the debt or the debtor.
Although [the debt collector] is correct, this rule
applies to violations of § 1692g, not violations of
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33 Id. at 1175.
34 2014 UT App 95, ¶ 23 (citation omitted).
35 233 F. Supp. 2d 496, 501 (E.D.N.Y. 2002).
36See,e.g., Williams v. Edelman, 408 F. Supp. 2d 1261, 1270 (S.D. Fla.
2005) (“Defendants’ argument boils down to an assertion that where
a debt collector has complied with [§ 1692g’s] notice requirements of
the FDCPA, a plaintiff may not prosecute a claim under 15 U.S.C.
§ 1692e(2)(a). The argument goes too far.”); Eide v. Colltech, Inc., 987
F. Supp. 2d 951, 963 (D. Minn. 2013) (“The validation provision in
§ 1692g does not alter the plain language of § 1692e.”).
37 No. C09–0956JLR, 2011 WL 1900149 (W.D. Wash. May 18, 2011).
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Opinion of the Court
§ 1692e. As the Ninth Circuit noted in Clark, the court’s
determination that the debt collector’s verification of
the debt did not violate the FDCPA was not the end of
the court’s inquiry into the plaintiffs’ claims. Rather,
the court continued on to analyze the plaintiffs’ claim
that the debt collectors knew that the debt alleged by
the creditor was invalid and misstated in violation of
§ 1692e(2)(A). The Ninth Circuit held that a debt
collector’s conduct need not be knowing or intentional
to violate § 1692e. 38
The Healey court went on to say
[T}he Ninth Circuit disapproved the standard the Bleich
court applied to § 1692e claims. Although the Clark
court agreed with Bleich that a debt collector may
reasonably rely on its client’s statements when
verifying a debt pursuant to § 1692g, the court
expressly disagreed with Bleich’s conclusion that a
plaintiff must show that the debt collector knowingly
or intentionally misrepresented the debt in order to
prevail under § 1692e. 39
¶ 23 Midland Funding made the same mistake the Bleich court did
in this situation. Midland Funding applied § 1692g’s standard—that a
debt collector may reasonably rely on its client’s representation
when verifying a debt—to § 1692e claims. The Midland Funding court
essentially holds that if a debt collector meets the verification
standards in § 1692g, any § 1692e claim cannot be sustained unless
there is evidence of intentional misrepresentation. As discussed
above, this expressly contradicts Clark and the overwhelming
majority of courts that have addressed the issue. 40 Because the
Midland Funding court misconstrued the Clark opinion and reviewed
the § 1692e claims under an incorrect standard, we today abrogate
Midland Funding.
_____________________________________________________________
38 Id. at *8 (footnote omitted) (citations omitted).
39 Id. at *8 n.5 (citations omitted).
40 See, e.g., McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d
240, 247–48 (3d Cir. 2014) (disagreeing with Bleich and noting that a
plaintiff need not successfully establish a § 1692g claim in order to
bring a valid § 1692e claim); see also infra ¶ 28 & n.50.
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B. The Rule Established in Midland Funding Also Contradicts the
Express Language of the FDCPA
¶ 24 In addition to incorrectly relying on Clark and other cases,
we also abrogate Midland Funding because the court of appeals’
holding contradicts the language of the FDCPA itself. Section
1692k(c) sets forth the bona fide error defense that precludes liability
when a debt collector’s misrepresentation is unintentional. But under
the standard established by the Midland Funding court, a debtor must
show, as a threshold requirement, that a debt collector’s
misrepresentation was intentional when claiming relief under § 1692e,
thereby rendering § 1692k(c) superfluous. Therefore, because the
court’s holding in Midland Funding undermines the language of the
FDCPA, we also abrogate it on this ground.
¶ 25 Section 1692k(c) is a debt collector’s sole defense to its
unintentional violations of the FDCPA. 41 It provides:
A debt collector may not be held liable in any action
brought under this title if the debt collector shows by a
preponderance of the evidence that the violation was
not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error. 42
¶ 26 This broad provision is widely known as the affirmative
“bona fide error defense” 43 and is interpreted as being a “narrow
exception to strict liability.” 44 Courts view the existence of § 1692k(c)
_____________________________________________________________
41 See Schwarm v. Craighead, 552 F. Supp. 2d 1056, 1074 (E.D. Cal.
2008) (“With the exception of the narrow bona fide error affirmative
defense in § 1692k(c), the FDCPA imposes strict liability on debt
collectors.”); Gallagher v. Gurstel, Staloch & Chargo, P.A., 645
F. Supp. 2d 795, 803 (D. Minn. 2009) (“Section 1692k(c) creates an
exception to FDCPA liability for unintentional violations . . . .”).
42 15 U.S.C. § 1692k(c).
43 Johnson v. Riddle, 443 F.3d 723, 727 (10th Cir. 2006).
44Clark, 460 F.3d at 1177; Owen v. I.C. Sys., Inc., 629 F.3d 1263,
1271 (11th Cir. 2011) (“[T]he FDCPA affords a narrow carve-out to
the general rule of strict liability, known as the ‘bona fide error’
defense.”).
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GONZALEZ v. CULLIMORE
Opinion of the Court
in the FDCPA as a strong indication that Congress intended § 1692e
to be a strict liability provision.45
¶ 27 The court’s reasoning in Midland Funding suggests, however,
that liability under § 1692e cannot be sustained unless there is
evidence that the debt collector intentionally or knowingly made a
misrepresentation. This interpretation of § 1692e renders § 1692k(c)
superfluous. “[B]y immunizing a debt collector for an unintentional
violation where reasonable error-avoidance procedures have been
employed, § 1692k(c) indicates that a violation of the FDCPA does
not have to be intentional in the first place.” 46 So “[a]n interpretation
of the FDCPA that required an intentional violation would, of
course, render this language pure surplusage.” 47 In other words,
“reading a scienter requirement into portions of the FDCPA that do
not specify that knowledge or intent is required would render the
affirmative bona fide error defense in § 1692k(c) superfluous.” 48
Because both the United States Supreme Court and our court have
“consistently . . . expressed a deep reluctance to interpret a statutory
provision so as to render superfluous other provisions in the same
enactment,” 49 we decline to adopt the Midland Funding court’s
interpretation.
¶ 28 Furthermore, the court’s holding in Midland Funding is at
odds with an overwhelming majority of jurisdictions who have
almost unanimously held that the FDCPA is a strict liability statute. 50
_____________________________________________________________
45 Clark, 460 F.3d at 1176.
46 Glover v. FDIC, 698 F.3d 139, 149 (3d Cir. 2012).
47 Id.; see also Clark, 460 F.3d at 1176 (“Requiring a violation of
§ 1692e to be knowing or intentional needlessly renders superfluous
§ 1692k(c).”).
48 Kaplan v. Assetcare, Inc., 88 F. Supp. 2d 1355, 1362 (S.D. Fla.
2000) (citation omitted).
49 Freytag v. Comm’r, 501 U.S. 868, 877 (1991) (internal quotation
marks omitted); Monarrez v. Utah Dep’t of Transp., 2016 UT 10, ¶ 11,
368 P.3d 846 (“[W]e avoid ‘[a]ny interpretation which renders parts
or words in a statute inoperative or superfluous’ in order to ‘give
effect to every word of a statute.’” (second alteration in original)
(citation omitted)).
50See, e.g., Stratton v. Portfolio Recovery Assocs., LLC, 770 F.3d 443,
448–49 (6th Cir. 2014) (“The FDCPA is a strict-liability statute: A
plaintiff does not need to prove knowledge or intent.”); McCollough
(Continued)
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And most of these courts have explicitly stated that § 1692e is a strict
liability provision.51 These courts believe that “a consumer need not
v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 952 (9th Cir.
2011) (same); LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190
(11th Cir. 2010) (same); Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 451
(8th Cir. 2001) (same); Gearing v. Check Brokerage Corp., 233 F.3d 469,
472 (7th Cir. 2000) (same); Taylor v. Perrin, Landry, deLaunay &
Durand, 103 F.3d 1232, 1238–39 (5th Cir. 1997) (same); Russell v.
Equifax A.R.S., 74 F.3d 30, 34–35 (2d Cir. 1996) (same); see also Reid v.
LVNV Funding, LLC, No. 2:14CV471DAK, 2016 WL 247571, at *4 (D.
Utah Jan. 20, 2016) (“Liability for falsely representing the character
or legal status of a debt can be predicated upon conduct that was
neither knowing or intentional.”); Frye v. Bowman, Heintz, Boscia &
Vician, P.C., 193 F. Supp. 2d 1070, 1083 (S.D. Ind. 2002) (“[T]he plain
language of § 1692e . . . contains no reference to knowledge or
intent . . . . The court concludes that § 1692e does not require that the
misrepresentations be knowing or intentional.”); Micare v. Foster &
Garbus, 132 F. Supp. 2d 77, 82 (N.D.N.Y. 2001) (“[B]ecause § 1692e
‘imposes strict liability on any debt collector that fails to comply with
the [FDCPA’s] provisions, knowledge or intent is only a factor in the
liability stage of the proceedings and need not be pled to state a
prima facie case.’” (second alteration in original) (citation omitted)).
51 See, e.g., Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 995 (7th
Cir. 2003) (“[Section] 1692e applies even when a false representation
was unintentional.” (citation omitted)); Clark, 460 F.3d at 1176(holding that in § 1692e cases, “intent is only relevant to the
determination of damages”).
We note that while most courts describe § 1692e as a strict
liability provision, many fail to fully define the meaning of this
standard under the FDCPA. Instead, courts generally focus solely on
the fact that the debtor need not prove the debt collector’s
misrepresentation was intentional in order to prevail under § 1692e.
While this assertion is true, a strict liability standard also eliminates
any requirement that a debtor show reckless or negligent conduct by
the debt collector. In other words, as Judge Posner puts it, “the [debt
collector’s] representation need not be deliberate, reckless, or even
negligent to trigger liability.” Ross v. RJM Acquisitions Funding, LLC,
480 F.3d 493, 495 (7th Cir. 2007); see also Osborn v. J.R.S.-I., Inc., 949 F.
Supp. 2d 807, 810 (N.D. Ill. 2013) (“The presence of negligence,
recklessness, or any other state of mind with respect to the false
statements is . . . irrelevant, because a debt collector is liable for a
(Continued)
17
GONZALEZ v. CULLIMORE
Opinion of the Court
show intentional conduct by the debt collector to be entitled to
damages.” 52 The standard established by the Midland Funding
court—that a consumer may not successfully argue that a debt
collector unreasonably relied on a creditor’s representation under
§ 1692e without asserting that the debt collector knew that the
creditor’s representation was false or misleading—is directly at odds
with these courts and joins an ever-shrinking minority position.
¶ 29 While there are a small number of cases holding that § 1692e
is not a strict liability provision,53 these cases are often founded on
shaky ground. For instance, a few of the federal district courts that
have held intent or knowledge is required to succeed on a § 1692e
claim are contradicted by courts within their same jurisdiction.54
false statement made in connection with collecting debt, regardless
of his intentions.”); Smith v. Greystone All. LLC, No. 09 C 5585, 2011
WL 2160886, at *4 (N.D. Ill. May 27, 2011) (“The Act imposes strict
liability on collectors, and a consumer need not show intentional or
even negligent conduct by the debt collector to be entitled to
damages.”). Accordingly, under this standard we do not look at the
degree of the debt collector’s culpability when determining whether
a violation of § 1692e has occurred. Ellis v. Solomon & Solomon, P.C.,
591 F.3d 130, 135 (2d Cir. 2010) (“The Act ‘is a strict liability statute,
and the degree of a defendant’s culpability may only be considered
in computing damages.’” (citation omitted)); Clark, 460 F.3d at 1176(“[T]he degree of a [debt collector’s] culpability may only be
considered in computing damages.” (second alteration in original)
(citation omitted)).
52 Russell, 74 F.3d at 33.
53 See, e.g., McStay v. I.C. Sys., Inc., 174 F. Supp. 2d 42, 47 (S.D.N.Y.
2001) (“To successfully state a claim pursuant to § 1692e(2),
[plaintiff] must show that [defendant] knowingly or intentionally
misrepresented the amount of debt in its collection letters.”); Ducrest
v. Alco Collections, Inc., 931 F. Supp. 459, 462 (M.D. La. 1996)
(“[U]nder § 1692e(2), plaintiff would have to show that defendant
knowingly misrepresented the character, amount, or legal status of
the debt.”); Thompson v. Prof’l Collection Consultants, No. 2CV 13-
2474RGK, 2013 WL 12114592, at *2 (C.D. Cal. Sept. 18, 2013).
54 Compare McStay, 174 F. Supp. 2d at 47 (“To successfully state a
claim pursuant to § 1692e(2), [plaintiff] must show that [defendant]
knowingly or intentionally misrepresented the amount of debt in its
collection letters.”), and Nuss v. Utah Orthopedic Assocs., P.C., No.
(Continued)
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Also, some jurisdictions following the minority view simply
misconstrue Clark. For example, in Thompson v. Professional Collection
Consultants, 55 a California federal district court addressed the merits
of a § 1692e claim. After citing Clark for the proposition that in order
to “successfully state a claim pursuant to § 1692e(2), [the plaintiff]
must show that [the debt collector] knowingly or intentionally
misrepresented the amount of the debt in its collection letters,” 56 the
Thompson court went on to hold that the plaintiff “fail[ed] to state a
plausible § 1692e(2) claim“ because it “fail[ed] to allege that [the
defendant] knowingly or intentionally misrepresented the
Account.” 57 Although the Clark opinion contained the phrase relied
upon by the Thompson court, the Clark court only used that phrase to
explain the minority view on § 1692e claims—a view the Clark court
expressly rejects a mere few paragraphs later:
Though the plain language of § 1692e does not include
an intent element, it employs words—“false, deceptive,
or misleading”—that connote volition. Examining the
provision in isolation, then, it is reasonable to
conclude—as have some other courts—that “[t]o
successfully state a claim pursuant to § 1692e(2), [the
plaintiff] must show that [the debt collector] knowingly
or intentionally misrepresented the amount of the debt
in its collection letters.” McStay v. I.C. System, Inc., 174
F. Supp.2d 42 (S.D.N.Y. 2001) . . . . However, “[i]n
analyzing a statutory text, we do not look at its words
2:09-CV-647TS, 2011 WL 3328708, at *4 (D. Utah Aug. 2, 2011) (“[T]o
state a claim under 15 U.S.C. § 1692e, a plaintiff must show that a
misstatement of an amount owed is knowing or intentional.”), with
Micare, 132 F. Supp. 2d at 82 (“[B]ecause § 1692e ‘imposes strict
liability on any debt collector that fails to comply with the
[FDCPA’s] provisions, knowledge or intent is only a factor in the
liability stage of the proceedings and need not be pled to state a
prima facie case.’” (second alteration in original) (citation omitted)),
and Reid, 2016 WL 247571, at *4 (“Liability for falsely representing the
character or legal status of a debt can be predicated upon conduct
that was neither knowing nor intentional.”).
55 2013 WL 12114592.
56 Id. at *2 (quoting Clark, 460 F.3d at 1175 (alterations in
original)).
57 Id.19
GONZALEZ v. CULLIMORE
Opinion of the Court
in isolation. Textual exegesis necessarily is a holistic
endeavor . . . . Thus, we look not only to the language
itself, but also to . . . the broader context of the statute
as a whole.” . . . .
Parsing the FDCPA with the aim of placing § 1692e in
its proper context, we encounter § 1692k(c) . . . . As our
colleagues in other circuits have concluded, this broad
language seems to make the FDCPA a strict liability
statute.
Latching onto that conclusion, the Seventh Circuit has
held that Ҥ 1692e applies even when a false
representation was unintentional.” The Second Circuit
has adopted a similar position.
We agree with the Second and Seventh Circuits.
Requiring a violation of § 1692e to be knowing or
intentional needlessly renders superfluous § 1692k(c). 58
The Thompson court, like the Midland Funding court, therefore simply
misunderstood Clark. Thus, while a minority view exists, cases
purporting this view are often suspect.
¶ 30 Accordingly, we abrogate Midland Funding because the court
of appeals misapplied Clark, incorrectly applied § 1692g’s standard
to § 1692e claims, and the court’s holding contradicts the express
language of the FDCPA.
II. The District Court Erred in Dismissing Ms. Gonzalez’s
§ 1692e Claims on Summary Judgment
¶ 31 With the correct standard for § 1692e claims in mind, we
must next determine whether the district court erred in granting in
part Cullimore’s motion for summary judgment, thereby dismissing
Ms. Gonzalez’s § 1692e claims. We hold that it did. The district court
failed to determine whether Cullimore made false representations
under § 1692e of the FDCPA and instead relied entirely on Midland
Funding to dismiss Ms. Gonzalez’s counterclaims. Under the correct
standard, the district court should have first determined whether
there was a genuine issue of material fact as to whether Cullimore
misrepresented the amount, character, and legal status of the debt
allegedly owed by Ms. Gonzalez. So we reverse the district court’s
_____________________________________________________________
58 Clark, 460 F.3d at 1174–75 (first, second, third, and fifth
alterations in original) (footnote omitted) (citations omitted).
20
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grant of partial summary judgment and remand this case to the
district court to make this determination.
¶ 32 The district court erred in dismissing Ms. Gonzalez’s § 1692e
counterclaims because it relied on the erroneous holding in Midland
Funding. We note that the district court’s reliance on Midland Funding
was certainly understandable, however, because, as it stated in its
order denying reconsideration of its order on SEB’s motion for
summary judgment, Midland Funding was an appellate court case
that, at the time of the district court’s determination, was “binding”
on the court and had not been “reversed or disavowed.” [AIS Dist
Dckt 127] Operating under the Midland Funding standard, the district
court focused solely on whether Cullimore reasonably relied on the
Association’s records for the amount and character of the debt owed.
Determining that Cullimore had, the district court granted
Cullimore’s motion and dismissed Ms. Gonzalez’s § 1692e claims.
The district court’s analysis, however, was in error.
¶ 33 The proper analysis of a § 1692e claim requires the district
court to first make a determination as to whether a false
representation was made under § 1692e. In order to prevail on a
FDCPA claim, a plaintiff must prove that “(1) the plaintiff has been
the object of collection activity arising from consumer debt, (2) the
defendant is a debt collector as defined by the FDCPA, and (3) the
defendant has engaged in an act or omission prohibited by the
FDCPA.” 59 It is undisputed that the first two criteria are satisfied in
this case. This case therefore turns on whether Cullimore met its
initial burden on summary judgment to show that it did not engage
in an act prohibited by the FDCPA—or, in other words, that there is
no genuine issue of material fact as to its claims that it made no
“false representation of . . . the character, amount, or legal status” of
Ms. Gonzalez’s debt. 60
_____________________________________________________________
59Kaplan v. Assetcare, Inc., 88 F. Supp. 2d 1355, 1360–61 (S.D. Fla.
2000) (citation omitted).
60 15 U.S.C. § 1692e. As the moving party who does not bear the
burden of proof on the § 1692e claims at trial, Cullimore may satisfy
its initial burden “by showing that ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any [show] that there is no genuine issue of material
fact.’” Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 30, 284 P.3d
630 (citation omitted). “’Upon such a showing . . . the burden then
shifts to the nonmoving party’ [, Ms. Gonzalez,] . . . ‘who cannot rest
(Continued)
21
GONZALEZ v. CULLIMORE
Opinion of the Court
¶ 34 A debt collector may plead, however, the affirmative bona
fide error defense, pursuant to § 1692k(c) of the FDCPA, in order to
preclude liability under the statute. “[A]n FDCPA defendant seeking
the protection of the bona fide error defense carries the burden of
proving that the violation was 1) unintentional, 2) a bona fide error,
and 3) made despite the maintenance of procedures reasonably
adapted to avoid the error.”61 And a debt collector must prove these
three elements “by a preponderance of [the] evidence.” 62 It is
important to note that a defendant seeking summary judgment
based on the bona fide error defense under § 1692k(c) also bears the
initial burden of demonstrating that no disputed issue of fact exists
regarding the affirmative defense asserted. 63 If a debt collector meets
this burden on all three elements, the district court should dismiss a
plaintiff’s § 1692e claim.
¶ 35 It is well established that summary judgment is appropriate
where “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” 64 Here, although
the parties provided the court with affidavits and documents, the
district court erred in failing to determine whether there was any
genuine issue as to whether the amount of debt Cullimore
represented to Ms. Gonzalez was a misrepresentation of the amount
she actually owed the Association, or, whether the fees represented
to her were legally assessed. As noted above, Cullimore represented
several arrearage amounts to Ms. Gonzalez in its demand letters,
complaint, and continually throughout litigation. Ms. Gonzalez
denied these amounts in phone conversations with Cullimore after
on her allegations alone,’” but “must set forth specific facts showing
that there is a genuine issue for trial.” Id. (citations omitted).
61Johnson v. Riddle, 443 F.3d 723, 727–28 (10th Cir. 2006); see also
15 U.S.C. § 1692k(c).
62 15 U.S.C. § 1692k(c).
63 Johnson, 443 F.3d at 724 n.1; Jones & Trevor Mktg., 2012 UT 39,
¶ 30 n.8 (“[W]here a defendant moving for summary judgment relies
on an affirmative defense, ‘the movant must establish [evidence
supporting] each element of his claim in order to show that he is
entitled to judgment as a matter of law.’” (second alteration in
original) (citation omitted)).
64 Jones & Trevor Mktg., 2012 UT 39, ¶ 30 (citation omitted).
22
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she received the demand letter, in her answer and counterclaim, and
continually throughout litigation. In its ruling and order on
Cullimore’s summary judgment motion, however, the district court
did not determine whether there was a genuine dispute as to
whether a misrepresentation, and therefore a violation of § 1692e,
had occurred. Instead, the district court focused on whether a
genuine issue of fact existed as to Cullimore’s reliance on the
Association’s representations—as required by the Midland Funding
court.
¶ 36 The district court’s order on Cullimore’s summary judgment
motion on the § 1692e claims in its entirety reads:
First, Plaintiff claims Defendants lied about the
amount of money she owed in both the demand letters
they sent her and in the complaint. Falsely representing
the amount of a debt is prohibited by title 15 section
1692e of the United States Code. However, a “debt
collector may rely on its client’s representations as to
the amount of the debt.” Midland Funding LLC v.
Sotolongo, 2014 UT App 95, ¶ 23, 325 P.3d 871. There is
no duty under the FDCPA for a debt collector “to
independently investigate the amount owed[,] but only
to confirm the amount claimed with their client.” Id.This is true even if the debtor “vehemently denie[s]”
the amount owed. Id. at ¶ 24 (internal quotation marks
omitted).
The evidence before the court shows that Sam Bell,
then an employee of the law firm, consulted the
association’s records to determine the amount owed by
Plaintiff when the law firm was retained to pursue the
collection action. He reconfirmed that amount before
filing a lawsuit against Plaintiff. In short, the firm took
proper steps to confirm the amount owed with its
client, the association. Even if Plaintiff is correct that
the amount the firm sought was inflated by the
association, this is not a basis to hold the firm liable for
misrepresenting the amount owed.
(Alterations in original.) As the order shows, the district court failed
to determine whether the amount of debt Cullimore represented to
Ms. Gonzalez constituted a false representation under § 1692e. The
district court declined to make this determination, merely ruling on
23
GONZALEZ v. CULLIMORE
Opinion of the Court
whether Cullimore met the standard in Midland Funding. 65 Because
the Midland Funding court established an incorrect standard for
reviewing § 1692e claims, the district court failed to make the correct
determination on summary judgment. So we reverse the district
_____________________________________________________________
65 The district court’s order on Ms. Gonzalez’s § 1692e claims in
SEB’s motion for summary judgment reflects the same analysis as
the court’s order in Cullimore’s summary judgment motion. It reads
in its entirety:
Gonzalez’s first FDCPA claim is that the SEB
defendants filed papers with the court alleging an
incorrect amount due. In Midland Funding v. Sotolongo,
the Utah Court of Appeals observed
A debt collector may not use any false,
deceptive, or misleading representation
or means in connection with the
collection of any debt. However, the
allegation that the debt is invalid,
standing alone, cannot form the basis of a
lawsuit alleging fraudulent or deceptive
practices in connection with the collection
of a debt. A debt collector may rely on its
client’s representation as to the amount of
debt. And the FDCPA does not impose
on debt collectors a duty to
independently investigate the amount
owed but only to confirm the amount
claimed with their client.
(internal quotation marks and citations omitted).
The SEB defendants have provided affidavit
evidence that they confirmed the amount of the debt
with their client. No evidence to the contrary has been
submitted by Gonzalez. Therefore, there is no genuine
issue of material fact on the issue and Gonzalez’s first
FDCPA claim fails.
Both orders show that the district court focused solely on Midland
Funding’s standard—whether Cullimore relied on the Association’s
representation of the debt in Cullimore’s actions against
Ms. Gonzalez—and not whether Cullimore falsely represented the
character, amount, or legal status of the debt Ms. Gonzalez owed.
24
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court’s holding and remand this case for the proper determination to
be made.
¶ 37 We also note that reversal is proper because Cullimore
failed to plead the affirmative bona fide error defense under
§ 1692k(c), which precludes liability under the FDCPA
notwithstanding a violation. Cullimore neither used the term “bona
fide error” in its answer to Ms. Gonzalez’s counterclaim, nor
mentioned § 1692k(c) and its elements. Instead, Cullimore stated
only that it reasonably relied on the Association’s representations.
Rule 8(c) of the Utah Rules of Civil Procedure requires a party to “set
forth affirmatively . . . any . . . matter constituting an avoidance or
affirmative defense.” If a party fails to raise an affirmative defense
pursuant to rule 8(c), generally it is considered waived.66 Cullimore
failed to raise the bona fide error defense in its answer to
Ms. Gonzalez’s counterclaim and so likely waived this defense. 67
_____________________________________________________________
66 Mack v. Utah State Dep’t of Commerce, Div. of Sec., 2009 UT 47,
¶ 14, 221 P.3d 194 (“Normally, a party waives all defenses not raised
in a responsive pleading, such as an answer or reply.”).
67 Even if Cullimore’s responsive pleading could be said to have
sufficiently pled the bona fide error defense of § 1692k(c)—by
asserting that Cullimore reasonably relied on the Association’s
representation as to the amount of the debt owed—Cullimore has
not established by a “preponderance of the evidence” the elements
necessary to uphold the defense at summary judgment. While it is
unclear whether Cullimore established that the alleged
misrepresentation was (1) unintentional or (2) a bona fide error, it is
clear that Cullimore did not show that (3) it made such an error
despite having procedures in place reasonably adapted to avoid the
error. This “procedures component” of the bona fide error defense
“involves a two-step inquiry.” Owen v. I.C. Sys., Inc., 629 F.3d 1263,
1274 (11th Cir. 2011) (citation omitted). First, we look at “whether the
debt collector ‘maintained’—i.e., actually employed or
implemented—procedures to avoid errors.” Id. (citations omitted);
see also Johnson, 443 F.3d at 729; Reichert v. Nat’l Credit Sys., Inc., 531
F.3d 1002, 1006 (9th Cir. 2008). Second, we look at “whether the
procedures were ‘reasonably adapted’ to avoid the specific error at
issue.” Owen, 629 F.3d at 1274 (citations omitted); see also Johnson, 443
F.3d at 729; Reichert, 531 F.3d at 1006. This test is a “fact-intensive
inquiry.” Wilhelm v. Credico, Inc., 519 F.3d 416, 421 (8th Cir. 2008). But
here Cullimore has provided no facts or evidence of procedures that
(Continued)
25
GONZALEZ v. CULLIMORE
Opinion of the Court
¶ 38 But rule 15 of the Utah Rules of Civil Procedures provides
that a party may amend its pleading—including a responsive
pleading—by leave of the court, and that “[t]he court should freely
give permission when justice requires.” 68 Likewise, “[w]e have
consistently encouraged liberal treatment of motions to amend a
pleading as long as justice is furthered, and not hindered.” 69 In light
of our liberal treatment of motions to amend and the fact that the
parties were working under the then-operative Midland Funding
standard at the time Cullimore filed its answer, Cullimore may seek
to amend its answer to include the bona fide error defense of
§ 1692k(c). In determining whether Cullimore should be allowed to
amend, the district court should consider whether justice so requires,
it employed or implemented to avoid misrepresentations. In fact,
Cullimore has never argued that it had procedures in place to avoid
errors or that the procedures it did have were reasonably adapted to
avoid the specific error in this case. Cullimore merely submitted an
affidavit stating that one of its attorneys, Mr. Bell, checked the
Association’s ledger before filing the lawsuit against Ms. Gonzalez. It
has made no assertion, nor provided any evidence, that verifying the
debt owed on the ledger is a policy of the company or that a policy
to check a client’s ledger before filing a suit or sending letters was
reasonably adapted to avoid the false representation of the amount,
character, or status of the debt owed to a consumer. Because
Cullimore bears the burden of proving its affirmative defense on
summary judgment, and Cullimore failed to carry this burden, we
cannot affirm the district court’s dismissal of Ms. Gonzalez’s § 1692e
counterclaims under the bona fide error defense. Rather, we reverse
the district court’s order and remand for further determination.
68 UTAH R. CIV. P. 15(a)(2).
69 Pett v. Autoliv ASP, Inc., 2005 UT 2, ¶ 6, 106 P.3d 705; see also
Cheney v. Rucker, 381 P.2d 86, 91 (Utah 1963) (“It is true . . . that
Rule 8(c) requires that affirmative defenses be pleaded. It is a good
rule whose purpose is to have the issues to be tried and clearly
framed. But it is not the only rule in the book of the Rules of Civil
Procedure. They must all be looked to in the light of their even more
fundamental purpose of liberalizing both pleading and procedure to
the end that the parties are afforded the privilege of presenting
whatever legitimate contentions they have pertaining to their
dispute. What they are entitled to is notice of the issues raised and an
opportunity to meet them. When this is accomplished, that is all that
is required.” (citation omitted)).
26
Cite as: 2017 UT 9Opinion of the Court
weighing “(1) the timeliness of the motion; (2) the justification for
delay; and (3) any resulting prejudice to the responding party.”70
¶ 39 Accordingly, we reverse the district court’s grant of partial
summary judgment and remand this case to the district court to
make the appropriate determinations.
Conclusion
¶ 40 The district court granted in part Cullimore’s motion for
summary judgment and dismissed Ms. Gonzalez’s § 1692e claims
based solely on the Utah Court of Appeals’ holding in Midland
Funding. Because the Midland Funding court misconstrued Clark,
misstated the correct standard, one observed by an overwhelming
majority of courts, and set forth a holding that contradicts the plain
language of the FDCPA, we overturn its opinion. We therefore
reverse and remand this case to the district court to determine
whether Cullimore satisfied its initial burden on summary judgment
of showing that there is no genuine issue of material fact as to its
claims that it did not misrepresent the character, amount, or legal
status of the debt Ms. Gonzalez owed the Association.
_____________________________________________________________
70ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2013 UT 24, ¶ 26,
309 P.3d 201 (citation omitted).
27