Lopez, Dan v. RS Clark & Associates, Inc

Affirm and Opinion Filed January 14, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00868-CV
DAN LOPEZ, Appellant
V.
RS CLARK & ASSOCIATES, INC., Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-07834-A
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Lewis
Opinion by Justice Francis
Dan Lopez appeals the trial court’s judgment in favor of RS Clark & Associates. In
several issues, Lopez contends the trial court erred by denying his motion for summary judgment
and granting summary judgment in favor of Clark. We affirm.
Lopez leased an apartment at Hunter’s Ridge Apartments in Fort Worth in April 2006.
When he moved out of the apartment in October 2006, Hunter’s Ridge assessed Lopez a cleaning
charge which he did not pay. In June 2007, the debt was turned over to Clark for collection. At
that time, Clark sent Lopez a letter about the debt, referencing Hunter’s Ridge, but Lopez did not
respond. A representative of Clark spoke with Lopez in mid-2008. When Lopez asked what the
debt was for, the representative said it was a cleaning charge from Hunter’s Ridge.
In February 2009, Lopez wrote Clark. In the letter, he said he did not “recognize this
alleged debt” but, given the small amount owed, was “offering full payment” contingent on
Clark agreeing to “fully delete this account from [Lopez’s] credit profile.” Lopez “invite[d]
good faith settlement negotiation in response to” his offer via email although he noted the terms
of any agreement were “open for very little negotiation.” He told Clark calls to his home phone
number were “inconvenient.” He then provided his cell phone number but refused consent to
call the cell number “at any time for any reason.” He also noted he was not allowed personal
communications at work. Lopez concluded the letter by suggesting Clark take him “up on this
offer, execute and abide by the enclosed settlement agreement so we can move on to bigger and
better issues.” Lopez enclosed a three-page, single-spaced document entitled “Settlement
Agreement and Release” and a copy of a money order for $52.34. Lopez sent the letter and
enclosures by certified mail to Clark’s legal counsel.
From May to September, 2009, a Clark representative called Lopez at home four times
between 10:28 a.m. and 2:15 p.m.; Lopez did not answer any of the calls. In January 2010,
Lopez sued Clark for violations of the Fair Debt Collection Practices Act, the Texas Debt
Collection Practices Act, and the Deceptive Trade Practices Act. In his pleading, Lopez alleged
Clark (1) called him at home after he had expressly told Clark to “cease all telephonic
communications” with him and (2) failed to communicate to the credit reporting agencies that
Lopez disputed the debt. Clark filed a general denial and a counterclaim for sanctions alleging
that the claims were groundless and brought in bad faith or for the purpose of harassment. Both
Lopez and Clark filed competing motions for summary judgment, although Lopez did not attach
any evidence in support of his motion. The trial court granted Clark’s motion and denied
Lopez’s motion, but declined to rule on Clark’s counterclaim. Following a bench trial, the trial
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court granted judgment in favor of Clark on the counterclaim and awarded attorney’s fees. This
appeal ensued.
On appeal, Lopez generally contends the trial court erred by granting Clark’s motion for
summary judgment and denying his. Specifically, he claims the February 24, 2009 certified
letter was sufficient notice to trigger the prohibitions of the debt collection practices acts and the
DTPA and that the letter was received by Clark’s legal counsel acting as Clark’s agent. Lopez
does not complain about the bench trial on Clark’s counterclaim or the award of attorney’s fees.
The summary judgment rule provides a method of summarily ending a case that involves
only a question of law and no fact issues. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548–49 (Tex. 1985). When, as here, both sides move for summary
judgment, and the trial court grants one motion and denies the other, we review the summary
judgment evidence presented by both sides and determine all questions presented. Comm’rs
Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). We review the summary judgment de novo to
determine whether a party’s right to prevail is established as a matter of law. Howard v. INA
Cnty. Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex. App.—Dallas 1996, writ denied). If we
conclude the trial court committed reversible error, we render the judgment the trial court should
have rendered. Id. at 216‒17.
To succeed in a traditional motion for summary judgment, the movant must establish
there are no genuine issues of material fact and it is entitled to judgment as a matter of law. W.
Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). For Clark to be entitled to summary
judgment, it had to disprove, as a matter of law, one of the essential elements of Lopez’s causes
of action. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).
Under the FDCPA, if a consumer notifies a debt collector in writing that the consumer (1)
refuses to pay a debt or (2) wishes the debt collector to cease further communication with the
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consumer, “the debt collector shall not communicate further with the consumer with respect to
[the] debt” except for certain notifications not relevant to this case. 15 U.S.C. § 1692c(c).
Section 1692e(8) prohibits debt collectors from communicating “to any person credit
information which is known or should be known to be false, including the failure to
communicate that a disputed debt is disputed.” 15 U.S.C. § 1692e(8). The TDCPA similarly
provides a debt collector may not “represent to any person other than the consumer that [the]
consumer is willfully refusing to pay a nondisputed consumer debt when the debt is in dispute
and the consumer has notified in writing the debt collector of the dispute.” TEX. FIN. CODE §
392.301(a)(3) (West 2006). And under section 392.404, a violation of chapter 392 is a deceptive
trade practice and is “actionable under” chapter 17 of the Texas Business and Commerce Code.
See id. § 392.404(a); TEX. BUS. & COM. CODE § 17.50 (West 2011). For a plaintiff to prevail
under these acts, he must establish he is a consumer, the defendant is a debt collector, and the
defendant engaged in an act or omission prohibited by the FDCPA and the TDCPA. See 15
U.S.C. §§ 1692a(3), (6), 1692c(c),1692e(8).
In his second amended petition, Lopez claimed (1) he “sent a letter to [Clark] on
February 24, 2009 requesting that [Clark] cease and desist all communications with [Lopez],” (2)
Lopez has a certified mail receipt proving Clark’s registered agent received the letter February
25, 2009, (3) after Lopez “expressly requested” Clark “cease all telephonic communications”
with him, Clark called his home phone number, and (4) Clark continued to report the debt on
Lopez’s credit report when “it was disputed by [Lopez] on February 24, 2009.”
In its motion, Clark claimed it was entitled to summary judgment because Lopez’s letter
did not inform Clark to “cease further communication” or dispute the debt and there was no
evidence the information Clark reported to the credit bureau was false. In support of its first
ground, Clark attached a copy of Lopez’s February 24, 2009 letter and Lopez’s deposition
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testimony. In the letter, Lopez tells Clark he is writing about the $52.34 debt to Hunter’s Ridge
Apartments. He states he does not recognize the debt but, given the small amount of the debt, is
“offering full payment in return for full deletion.” He invites “good faith settlement negotiation
in response” to his offer, although “the terms of the agreement are open for very little
negotiation.” He states calls to his home phone are “inconvenient.” He then provides his cell
phone number and states:
I DO NOT give you consent to call this number using an auto dialer, I DO NOT
give you consent to manually dial this number, I DO NOT give you consent to
call this number at any time for any reason. I hereby withdraw any consent you
and/or the creditor may think either of you had to call this number. In addition,
please be advised that I am NOT allowed personal communications at work.
Lopez concludes the letter by suggesting Clark take him up on his offer and execute and abide by
the enclosed agreement. In his deposition, Lopez testified calls to his home phone were
inconvenient because he worked nights, but he conceded he did not tell Clark that he worked
nights. He also stated there were convenient times for him to take calls at home.
Considering the express language of the letter, we conclude it did not notify Clark that
Lopez wished Clark to “cease further communication” with him. Although Lopez clearly states
he does not consent to communication via his cell or work phones, Lopez states only that calls to
his home are inconvenient. He did not withdraw consent to contact his home phone nor did he
otherwise state Clark could not contact him at home. Moreover, the letter invites further
communication regarding a settlement.
In addition, the letter does not dispute the debt and, instead, offers full payment. And in
his deposition testimony, Lopez testified what Clark told the credit reporting agency was
accurate. He said he was not claiming Clark gave incorrect information regarding his credit
report. Because Clark established as a matter of law it did not report something false to a third
party and that the February 24 letter did not instruct Clark to cease further communication with
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Lopez and did not dispute the debt, the burden shifted to Lopez to raise an issue of material fact.
This he failed to do.
Lopez did not present any summary judgment evidence in support of his motion or in his
response to Clark’s motion. Rather, he argued below and on appeal that the FDCPA does not
require a consumer to use exact language in forbidding communication and he should be held to
a “least sophisticated consumer” standard. Although we agree that a consumer need not use
specific or “technical” language, we reject Lopez’s claim his language was sufficient to forbid all
communication. With respect to his home phone, Lopez did not forbid calls, nor did he
withdraw consent; he said only that calls are “inconvenient.” This statement is immediately
followed by a paragraph giving his cell phone number and explicitly refusing consent to call the
cell phone as well as his work phone numbers. This establishes Lopez knew how to refuse
consent or, at a minimum, how to tell Clark to “cease further communication” with him. Lopez
also drafted and sent a three-page legal document entitled “Settlement and Agreement” and
invited further negotiations. Read in its entirety, the letter demonstrates Lopez knew how to
communicate clearly and did not forbid further communication. We reject Lopez’s argument to
the contrary.
We conclude the trial court did not err by granting summary judgment in favor of Clark
with respect to Lopez’s claims under the FDCPA or the TDCPA. Nor did the trial court err by
granting summary judgment on Lopez’s derivative DTPA claim. We overrule Lopez’s issues.
We affirm the trial court’s judgment.
/Molly Francis/
MOLLY FRANCIS
120868F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAN LOPEZ, Appellant On Appeal from the 14th Judicial District
Court, Dallas County, Texas
No. 05-12-00868-CV V. Trial Court Cause No. DC-10-07834-A.
Opinion delivered by Justice Francis,
RS CLARK & ASSOCIATES, INC., Justices Lang-Miers and Lewis participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee RS CLARK & ASSOCIATES, INC. recover its costs of
this appeal from appellant DAN LOPEZ.
Judgment entered this 14th day of January, 2014.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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