Harold Boosahda v. Providence Dane LLC , 462 F. App'x 331 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1933
HAROLD BOOSAHDA,
Plaintiff – Appellant,
v.
PROVIDENCE DANE LLC,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Ivan D. Davis, Magistrate
Judge. (1:09-cv-00556-IDD)
Argued: December 8, 2011 Decided: January 31, 2012
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ernest Francis, Arlington, Virginia, for Appellant. David
Benjamin Ashe, PROVIDENCE DANE LLC, Virginia Beach, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Boosahda appeals the district court’s award of
summary judgment to Providence Dane LLC (“Providence”), on his
claims brought under the Fair Debt Collection Practices Act (the
“FDCPA”), 15 U.S.C. § 1692, et seq. See Boosahda v. Providence
Dane, LLC, No. 1:09-cv-00556 (E.D. Va. July 9, 2010). Boosahda
also appeals the court’s denial of his motion to strike certain
of Providence’s affirmative defenses. Because, as explained
below, we affirm the summary judgment on grounds unrelated to
Providence’s affirmative defenses, we need not address the
propriety of the motion to strike.
I.
On or about May 16, 2008, Providence sued Boosahda in the
Circuit Court for Fairfax County, Virginia, seeking to collect
more than $22,000 owed on credit card accounts assigned to
Providence by Chase Manhattan Bank USA, N.A. (“Chase”), and
First USA Bank, N.A. (“First USA”). Boosahda countersued,
asserting violations of the Truth in Lending Act (“TILA”), 15
U.S.C. § 1601, et seq., and alleging that Chase and First USA
had failed to provide him with certain disclosures when the
credit card accounts were opened. At trial in state court,
Boosahda testified that he could not recall having credit card
accounts with Chase or First USA and did not remember whether he
2
had used Chase or First USA credit cards to make purchases.
Providence’s counsel attempted to introduce into evidence,
through the testimony of a Providence paralegal, credit card
account billing statements bearing Boosahda’s name and address.
The paralegal explained that she had obtained the statements
from Chase and First USA. The trial court, however, struck the
evidence as hearsay and entered judgment of dismissal in favor
of Boosahda, effectively relieving him of any legal obligations
to repay the debt owed on the Chase and First USA credit cards.
As to Boosahda’s countersuit, the jury returned a verdict in
favor of Providence, and the trial court entered judgment
thereon.
On May 15, 2009, Boosahda commenced this action in the
Eastern District of Virginia. 1 Boosahda alleged myriad FDCPA
violations arising from Providence’s unsuccessful state court
suit against him, seeking $50,000 in damages plus attorney’s
fees. After the district court denied Providence’s motion to
dismiss, Providence answered the complaint and interposed seven
affirmative defenses. Boosahda moved to strike four of the
1
The parties consented in the district court to the
jurisdiction of a magistrate judge for all purposes. In issuing
his decisions, the magistrate judge was acting for the court,
and we therefore refer to those decisions as those of the
district court. See 28 U.S.C. § 636(c)(1).
3
affirmative defenses as insufficiently pleaded. 2 On February 26,
2010, the district court conducted a hearing and entered an
order denying the motion to strike without prejudice. Discovery
then ensued. In being deposed, Boosahda stated repeatedly that
he could not recall obtaining credit cards from either Chase or
First USA, and he did not remember using any such cards to make
purchases.
Providence thereafter moved for summary judgment on the
ground that Boosahda could not establish that the debt due on
the credit cards was “consumer debt” subject to the FDCPA — an
essential element of each of his claims for relief. 3 Boosahda
2
The affirmative defenses that were subject to Boosahda’s
motion to strike averred that: (1) any FDCPA violations
“resulted from a bona fide error”; (2) the alleged violations
“in no way exemplifies the abusive or unfair behavior Congress
had in mind when enacting the FDCPA”; (3) “some or all of
[Boosahda’s] alleged injuries or damages resulted from the acts
or omissions of third parties”; and (4) “some or all of the
alleged violations resulted from good faith reliance by
[Providence] on representations made by third parties.” J.A.
31-32. (Citations herein to “J.A.___” refer to the contents of
the Joint Appendix filed by the parties in this appeal.)
3
To establish 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.” Ruggia
v. Wash. Mut., 719 F. Supp. 2d 642, 647 (E.D. Va. 2010). The
FDCPA defines “debt,” in relevant part, 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).
(Continued)
4
opposed the summary judgment motion and filed his own cross-
motion for such relief. In support of his opposition, Boosahda
submitted a declaration in which he avowed that he had reviewed
the Chase and First USA billing statements and concluded that
“none of the charges made to those accounts could have been for
use in any business by which [he had] been employed” and denied
that he ever “used any credit cards for any business purpose.”
See J.A. 287-88. During the district court’s July 9, 2010
hearing on the summary judgment motions, the parties agreed that
Providence is a “debt collector” within the meaning of the
FDCPA. The court also acknowledged the likelihood that genuine
issues of material fact existed concerning the acts alleged to
have been FDCPA violations. Nevertheless, because Boosahda was
unable to carry his burden of showing that the credit card debt
was consumer debt, the court granted summary judgment in favor
of Providence. Boosahda has timely appealed from that judgment,
and we possess jurisdiction under 28 U.S.C. § 1291.
II.
We review de novo a district court’s award of summary
judgment, “viewing the facts and the reasonable inferences
A “consumer” is “any natural person obligated or allegedly
obligated to pay any debt.” Id. § 1692a(3).
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therefrom in the light most favorable to the nonmoving party.”
See Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011). Rule
56 of the Federal Rules of Civil Procedure mandates the entry of
summary judgment if the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Otherwise, “a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily
renders all other facts immaterial [and][t]he moving party is
entitled to judgment as a matter of law.” Id. at 323 (internal
quotation marks omitted).
III.
In this appeal, we are tasked solely with deciding whether
the district court erred in concluding that Boosahda failed to
show that the debt incurred on the Chase and First USA credit
cards was consumer debt — as opposed to commercial or business
debt — for FDCPA purposes. 4 Boosahda maintains that he made the
requisite showing in three ways. First, he contends that a
4
As previously explained, because the district court did
not grant summary judgment on the basis of any of Providence’s
affirmative defenses, we do not address Boosahda’s motion to
strike.
6
letter he received from Providence constituted an admission that
it was seeking to collect a consumer debt. Second, he posits
that the motion for judgment against Boosahda personally in the
state court action establishes Providence’s attempt to collect a
consumer debt. And, third, he suggests that his declaration in
the district court established that he did not make charges on
any credit cards for business purposes. We reject each of these
contentions in turn.
The FDCPA requires a debt collector to disclose in its
initial written communication with a consumer debtor that it is
“attempting to collect a debt and that any information obtained
will be used for that purpose.” See 15 U.S.C. § 1692e(11). The
parties stipulated in the district court that Providence sent
Boosahda a letter in March 2008 providing, in pertinent part:
“Federal law requires us to advise that this communication is an
attempt by a debt collector to collect a debt. Any information
obtained will be used for that purpose.” See J.A. 73, 290.
Boosahda seizes on the use of the word “debt” in the letter’s
disclaimer as determinative that Providence considered the debt
to be consumer debt. He argues that a debt collector should be
estopped from denying a debt is consumer debt when it uses such
a disclaimer, relying on the Seventh Circuit’s decision in Shula
v. Lawent, 359 F.3d 489 (7th Cir. 2004). We do not read Shula,
however, as standing for any such proposition. Indeed, the
7
Seventh Circuit has more recently and explicitly explained that
the use of such a disclaimer “does not automatically trigger the
protections of the FDCPA, just as the absence of such language
does not have dispositive significance.” See Gburek v. Litton
Loan Serv. LP, 614 F.3d 380, 386 n.3 (7th Cir. 2010). We agree.
The FDCPA defines consumer debt, not a debt collector’s
disclaimer. Moreover, if the use of the statutorily required
disclaimer is sufficient to establish an FDCPA claim, debt
collectors will be placed in a conundrum, exposed to liability
for both including the disclaimer and for omitting it. Cf.
Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 399-400 (6th
Cir. 1998) (“[t]o punish [debt collector] for compliance with
[§ 1692e(11)] [by disclosing] that it is an ‘attempt[] to
collect on a debt’ would be an absurd result that we decline to
reach.”); Wade v. Reg’l Credit Ass’n, 87 F.3d 1098, 1100 (9th
Cir. 1996) (finding no FDCPA violation based on “informational”
disclaimer and noting that debt collector “would have violated
the Act had it not included this statement”). Put simply, a
debt collector should not be penalized for taking the precaution
of including the disclaimer within its initial written
communication to the debtor, in the event the debt is subject to
the FDCPA. In any case, Providence’s disclaimer is not
sufficient to satisfy Boosahda’s burden of showing the credit
card debt was consumer debt. See Golliday v. Chase Home Fin.,
8
LLC, 761 F. Supp. 2d 629, 636 (W.D. Mich. 2011) (concluding
plaintiff’s reliance on disclaimer insufficient to defeat
summary judgment as to firm’s debt collector status and
observing that firm should not be faulted when it “errs on the
side of caution” by including disclaimer).
Similarly, Providence’s motion for judgment in the state
court action does not constitute evidence that the debt incurred
on the Chase and First USA credit cards was consumer debt.
Boosahda makes much of the fact that the state court action was
initiated against him in his personal capacity. As the district
court pointed out, however, that fact is not dispositive because
a person can be sued in his or her individual capacity even for
business debts. Indeed, the district court examined the billing
statements in this case and concluded that any or all of the
purchases could have been business expenses. Cf. Slenk v.
Transworld Sys., Inc., 236 F.3d 1072, 1075 (9th Cir. 2001)
(explaining that, in determining whether debt is consumer debt,
court should “examine the transaction as a whole” and “look to
the substance of the transaction and the borrower’s purpose in
obtaining the loan, rather than the form alone” (internal
quotation marks omitted)); Miller v. McCalla, Raymer, Padrick,
Cobb, Nichols, & Clark, LLC, 214 F.3d 872, 875 (7th Cir. 2000)
(observing that whether debt is consumer debt depends on “the
9
transaction out of which the obligation to repay arose, not the
obligation itself”). 5
Finally, we disagree with Boosahda that his declaration in
opposition to Providence’s summary judgment motion demonstrated
that the amount owed on the credit cards was consumer debt. The
district court properly determined that Boosahda’s statements in
that declaration conflicted with the answers he provided in his
deposition. In the latter — as in his state court trial
testimony — his sworn statements were tentative, i.e., he could
not recall obtaining the Chase and First USA credit cards and
did not remember making any purchases with those cards. Yet in
his declaration Boosahda was able to state definitively that he
never used those cards for any business purpose. Like the
district court, we deem it troubling that Boosahda suddenly
possessed knowledge of the nature of the debt, having repeatedly
disavowed under oath knowledge of the debt itself. 6 See Cline v.
5
Boosahda’s reliance on Hansen v. Ticket Track, Inc., 280
F. Supp. 2d 1196 (W.D. Wash. 2003), and the unpublished Eleventh
Circuit decision in Hepsen v. Resurgent Capital Servs., LP, 383
Fed. App’x 877 (11th Cir. 2010), is unavailing. The undisputed
facts in Hansen showed that the parties’ contract was of a
personal nature. Likewise, in Hepsen, the court observed that
the debtor had established that his debt was consumer debt
because, inter alia, “it was not used for business” since he had
a company-issued business card to use for business expenses.
See 383 Fed. App’x at 884, n.7.
6
We are also concerned by any continued reliance on the
declaration since Boosahda’s counsel conceded at oral argument
(Continued)
10
Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)
(reviewing denial of Rule 50(b) motion under same standard as
Rule 56 motion and observing that Court will “assume that
testimony in favor of the non-moving party is credible, unless
totally incredible on its face” (internal quotation marks
omitted)). In any event, “it is well established that a genuine
issue of fact is not created where the only issue of fact is to
determine which of the two conflicting versions of a party’s
testimony is correct.” Erwin v. United States, 591 F.3d 313,
325 n.7 (4th Cir. 2010) (internal quotation marks and
alterations omitted). As we have explained,
[i]f a party who has been examined at length on
deposition could raise an issue of fact simply by
submitting an affidavit contradicting his own prior
testimony, this would greatly diminish the utility of
summary judgment as a procedure for screening out sham
issues of fact.
Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)
(internal quotation marks omitted). Accordingly, the district
court accurately concluded that Boosahda had failed to carry his
burden of establishing an essential element of his FDCPA claims,
that Boosahda “cannot show what the purpose[s] of charges on
[the Chase and First USA credit cards] were.”
11
that the debt incurred on the Chase and First USA credit cards
was consumer — as opposed to business or commercial — debt. 7
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
7
We decline Boosahda’s invitation to consider that our
disposition of this case might render it impossible for FDCPA
plaintiffs who have been victimized by identity theft (or who
otherwise have a legitimate collection defense) to stave off
summary judgment. This is not a case of identity theft, as
Boosahda conceded at oral argument, and we will not provide an
advisory opinion on the evidentiary showing necessary to
withstand summary judgment in such a case. Rather, we echo the
sentiments of the decision Boosahda relies on, that “the
determination of whether a debt is [a consumer debt] is a fact
driven one, and should be decided on a case-by-case . . . basis
looking at all relevant factors.” Hansen, 280 F. Supp. 2d at
1204.
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