Blaire Stanley v. Kansas Counselors of Kansas City , 639 F. App'x 589 ( 2016 )

Case: 14-14802 Date Filed: 01/21/2016 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14802
Non-Argument Calendar
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D.C. Docket No. 9:14-cv-80284-DMM
BLAIRE STANLEY,
Plaintiff-Appellant,
versus
KANSAS COUNSELORS OF KANSAS CITY,
UNKNOWN OTHERS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 21, 2016)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Blaire Stanley, proceeding pro se, appeals the district court’s order granting
summary judgment in favor of defendant Kansas Counselors of Kansas City, Inc.
(Kansas Counselors) in a civil action alleging violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq. (FDCPA), the Fair Credit
Reporting Act, 15 U.S.C. § 1681, et seq. (FCRA), the Federal Debt Collection
Procedure Act, 28 U.S.C. § 3001, et seq. (FDCP), the Freedom of Information Act,
5 U.S.C. § 552 (FOIA), and the Florida Consumer Collection Practices Act, Fla.
Stat. § 559.72 (FCCPA). Stanley argues the district court erred in the following
ways: (1) failing to strike the affidavit of Steve Tomac as hearsay and for lack of
personal knowledge; (2) granting summary judgment on Stanley’s §§ 1692e(2),
1692e(5), and 1692f(1) claims based on the bona fide error defense, which Kansas
Counselors had not argued; and (3) failing to require Kansas Counselors to provide
an original contract or assignment demonstrating the existence of the debt and
Kansas Counselors’ right to collect the debt. After review,1 we affirm.
The district court did not abuse its discretion in considering Tomac’s
affidavit. The affidavit was based upon Tomac’s personal knowledge and upon his
review of Kansas Counselors’ business records. The affidavit states that Tomac is
1
We review for abuse of discretion a district court’s evidentiary rulings at the summary
judgment stage. Wright v. Farouk Systems, Inc., 701 F.3d 907, 910 (11th Cir. 2012). We review
de novo an order granting summary judgment, viewing the evidence and factual inferences in the
light most favorable to the nonmoving party. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060
(11th Cir. 1994).
2
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Director of Compliance at Kansas Counselors and that he personally sought and
reviewed Kansas Counselors’ business records pertinent to this action. When
Tomac’s affidavit describes the content of a document, the affidavit identifies and
attaches the document. See Eli Lilly & Co. v. Air Exp. Int’l USA, Inc., 615 F.3d
1305, 1317 (11th Cir. 2010) (finding no abuse of discretion in the district court’s
considering an affidavit that describes and attaches business records); Fed. R. Evid.
803(6). Tomac’s affidavit was based on personal knowledge, set out facts that
would be admissible in evidence, and demonstrated Tomac’s competence to testify
as to the matters described therein. See Fed. R. Civ. P. 56(c)(4). Therefore, the
district court did not abuse its discretion.
The district court relied upon an erroneous basis in granting summary
judgment on Stanley’s §§ 1692e(2), 1692e(5), and 1692f(1) claims, but summary
judgment was nevertheless appropriate. Kansas Counselors did not argue the bona
fide error defense in its motion, and the district court did not provide Stanley with
notice of or an opportunity to respond to that basis for summary judgment. The
district court therefore erred in granting summary judgment based on bona fide
error. See Fed. R. Civ. P. 56(f). Despite the error, the Court may affirm the
judgment on any ground that appears in the record. Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). We affirm based on the absence of a
genuine issue of material fact regarding the existence or amount of the debts.
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Stanley argues that Kansas Counselors violated §§ 1692e(2), 1692e(5), and
1692f(1) by falsely representing the existence and the amount of debt that Stanley
owed in order to collect those amounts. Tomac’s affidavit, however, identifies
documents supporting the existence of the debts and the amount of indebtedness
and avers that Kansas Counselors was never notified that the debts had been paid
or extinguished. In her counter-affidavit, Stanley disputes the sufficiency of
Tomac’s affidavit, avers that she “is not obligated to pay neither [the original
creditors] nor Kansas Counselors and has no business relations with either of
the . . . entities,” and relies upon a misreading of a document attached to Tomac’s
affidavit. 2 Other than Stanley’s own conclusory and self-serving allegations that
she did not owe the amount that Kansas Counselors was attempting to collect,
there is no evidence that Kansas Counselors used any false, deceptive, or
misleading representation about the amount of the debt, threatened to take illegal
action, or attempted to collect any amount that was not authorized. See 15 U.S.C.
§§ 1692e(2)(A), 1692e(5), 1692(f)(1). Accordingly, summary judgment was
proper as to Stanley’s §§ 1692e(2), 1692e(5), and 1692f(1) claims.
Finally, the district court did not err by not requiring Kansas Counselors to
produce an original contract or assignment. Stanley fails to identify a sound legal
2
Stanley argues that one of her creditors’ statements showing a $0 balance indicates the
nonexistence of the debt. This argument fails because the statement also includes two line items
showing the existence of the debt (two unpaid deductibles for medical services received) and two
line items showing that the creditor internally allocated the debt to “COLLECTIONS,” thus
leaving a $0 balance from the creditor’s perspective.
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basis for her conclusion that a debt collector must verify its or the debtor’s
relationship with the underlying creditor in the form of a written original contract
or assignment. Tomac’s affidavit and the documents attached thereto sufficiently
identify the source of the underlying debt—medical bills incurred—and of Kansas
Counselors’ right to collect the debt—a referral from Stanley’s original creditors.
Therefore, the district court had adequate, uncontradicted summary judgment
evidence demonstrating the absence of a genuine issue of material fact as to the
existence of and Kansas Counselors’ right to collect the underlying debt.
AFFIRMED.
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