Kevin Woods v. LVNV Funding, LLC ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1981
KEVIN WOODS,
Plaintiff-Appellant,
v.
LVNV FUNDING, LLC and RESURGENT CAPITAL SERVICES, L.P.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-03451 — Tanya Walton Pratt, Judge.
____________________
ARGUED JANUARY 6, 2022 — DECIDED FEBRUARY 28, 2022
____________________
Before SYKES, Chief Judge, and ROVNER and SCUDDER, Cir-
cuit Judges.
SCUDDER, Circuit Judge. Kevin Woods claims an identity
thief opened a credit card in his name, leading debt collectors
to come after him for the card’s unpaid balance. After months
of phone calls and letter writing, Woods succeeded in having
the debt removed from his credit report. Woods now asserts
that the debt collectors’ actions during this period violated his
rights under the Fair Debt Collection Practices Act and the
2 No. 21-1981
Fair Credit Reporting Act. We have no doubt this ordeal
caused Woods a world of aggravation. But the district court
correctly concluded that Woods’s claims cannot succeed on
the merits, so we are left to affirm.
I
A
On March 8, 2018, someone opened an American Airlines
Citibank credit card—with an account number ending in
9762—under the name Kevin Woods. Whoever did so made
the card’s only purchase that same day: a $377.61 one-way
flight from Dallas to Los Angeles. Over the next six months
the account accumulated interest and late fees, so that by the
time American Airlines closed it in October, the outstanding
balance was $723.55. American then sold the account to
LVNV Funding, LLC, which placed it for collection with Re-
surgent Capital Services, L.P.
Resurgent sought to collect the debt from—who else?—
Kevin Woods, the plaintiff in this case. But Woods says the
debt was not his. He maintains that he had “never received a
statement for the account and remained unaware of its exist-
ence” until the collectors came calling. So when the letters be-
gan arriving in January and February 2019, Woods disputed
the account with Resurgent.
On February 21, 2019, Resurgent responded to these dis-
putes with a letter stating that, after looking into Woods’s
claim, it had verified that the debt was his. As evidence, this
letter attached an “Account Summary Report” that Resurgent
had prepared, indicating that the account belonged to a Kevin
Woods at Woods’s current address in Tipton, Indiana.
No. 21-1981 3
Throughout the rest of February and March, Woods con-
tinued to call and write Resurgent to dispute the debt. On a
February 28 call, Resurgent told Woods to “provide docu-
mentation and details in writing to support his dispute.”
Woods responded by sending Resurgent a form letter from
identitytheft.gov indicating that “[a]n identity thief used [his]
personal information without [his] permission to open” the
account. On April 3 Resurgent sent Woods another account
verification letter, identical to the one it sent in February. It
also began reporting the delinquent account to the credit re-
porting agencies, but informed those CRAs that Woods dis-
puted the debt.
Resurgent sent Woods two more letters on May 1, 2019.
The first contained, for the first time, a copy of the disputed
account’s final statement. The address listed on the statement
was not Woods’s current address, but rather a different Tip-
ton, Indiana address—one at which he had not lived since
2013. The second letter stated that Resurgent had found insuf-
ficient evidence to support Woods’s fraud claim, but listed
some documents he could provide to aid in the investigation:
1. A copy of a filed police report regarding the
fraud;
2. A completed and notarized identify theft af-
fidavit (blank copy enclosed);
3. Letter(s) from the original creditor or other
previous owner of this account supporting
this claim;
4. Court documents showing that the perpetra-
tor has been prosecuted for using this ac-
count; [or]
5. Any other documents supporting this claim.
4 No. 21-1981
Woods did not respond to either letter. Instead, he called
American Airlines. Over the phone, American confirmed that
the account was opened under Woods’s old address, and un-
der an email address he says he had never heard of. Even so,
American sent Woods two letters, on May 22 and June 1, in-
dicating that it had determined the debt was his.
That was when Woods turned to the local police. On
June 6 Woods filed a report with the Tipton County Sheriff’s
Office, alleging that he had been the victim of identity theft.
Woods brought with him the two letters he had received from
American. Reviewing these letters, the officer who spoke to
Woods wrote in his report that American “had completed an
investigation and … determined that it was in fact him.”
On June 20 Woods formally disputed the debt with the
CRAs and provided them a copy of the police report contain-
ing the officer’s commentary. Around a week later, the CRAs
forwarded these materials to Resurgent in what is known as
an automated credit dispute verification, or ACDV. Resur-
gent reviewed these new materials and again matched
Woods’s name and address to the account information in its
database. It verified to the CRAs that the debt was indeed
Kevin Woods’s.
Woods filed this lawsuit a couple months later, on Au-
gust 14, 2019. The next day, Resurgent sent him another letter
seeking additional documents to support his claim, and in-
cluded the same list of suggested materials it had sent on
May 1. Two weeks later, American wrote Woods to say that it
had, at long last, concluded he was not responsible for the un-
paid charge on account 9762, though it is not apparent what
led the company to this changed view. Upon learning of this
No. 21-1981 5
development, Resurgent promptly asked the CRAs to remove
the account from Woods’s credit report, and they did.
B
Woods sued Resurgent and LVNV under various provi-
sions of the Fair Debt Collection Practices Act (FDCPA), and
the Fair Credit Reporting Act (FCRA). This appeal concerns
two of his claims.
Woods first alleged that Resurgent and LVNV violated the
FDCPA by using “false representation[s] or deceptive means
to collect or attempt to collect any debt.” 15 U.S.C. § 1692e(10).
In Woods’s view, Resurgent’s collection letters were literally
false, since they stated that he owed a debt that American Air-
lines had since determined was not his.
The district court granted summary judgment for the de-
fendants on two alternative bases. First, the court determined
that Woods had not met his threshold burden of showing that
the one-way airline ticket was a “consumer debt” as required
by the statute. In any event, the district court concluded,
Woods’s claim failed because “an unsophisticated consumer
would not be deceived by the letters” Resurgent sent.
Next, Woods claimed that Resurgent violated FCRA by
failing to conduct a reasonable investigation into his fraud
claims. See 15 U.S.C. § 1681s-2(b)(1)(A). The district court
credited Resurgent for “closely examin[ing]” Woods’s claim
“even before” the ACDV triggered its statutory obligation to
do so, observing that the firm “immediately noted the dispute
and asked Woods to send in records that could help resolve
the matter.” In the court’s view, moreover, the one piece of
information Woods did provide—the police report—“actually
hurt his case” by indicating that “American Airlines had
6 No. 21-1981
determined he was responsible for the Account.” The district
court entered summary judgment for Resurgent, finding the
reasonableness of its investigation “beyond question.”
Woods now appeals.
II
A
We begin with Woods’s claims under the FDCPA.
The FDCPA’s protections apply only to consumer debts,
which the Act defines as any obligation to pay money “arising
out of a transaction” entered into “primarily for personal,
family, or household purposes.” 15 U.S.C. § 1692a(5). To
make out a cause of action under the FDCPA, then, a plaintiff
must offer evidence permitting a jury to conclude that the
debt at issue falls within this statutory definition. See Burton
v. Kohn Law Firm, S.C., 934 F.3d 572, 579–80 (7th Cir. 2019).
This is so even where, as here, the FDCPA plaintiff claims he
was the victim of identity theft. See id. at 580 (explaining that
“a plaintiff proceeding under this theory still must offer evi-
dence to establish that the debt was a consumer debt”) (em-
phasis deleted).
In Burton we held that the plaintiff had not met his burden
on this point. Much like this case, John Burton alleged that
someone fraudulently opened a credit card in his name. See
id. at 577. Focusing on the language in § 1962a(5), we ex-
plained that “[e]vidence of the types of purchases made on
the credit card may be relevant to the question whether those
purchases were made primarily for personal, family, or
household purposes.” Id. at 584. The card’s transaction log,
however, did not tell a coherent story one way or the other,
revealing purchases at a range of vendors—from “gas stations
No. 21-1981 7
and convenience stores” to “office supply and auto parts
stores, a local pizza establishment, and the local school dis-
trict.” Id. Many of these purchases, we reasoned, could plau-
sibly have been made for a business purpose, even if they did
not “obviously signal” such a purpose. Id. Faced with a toss-
up, we concluded that Burton had not done enough to show
that the debt fell within the FDCPA’s scope. See id.
Because there is no way to know for sure whether the one-
way flight in this case was purchased for business or con-
sumer purposes, the district court concluded that Woods had
likewise failed to meet his burden under § 1692a(5). But nei-
ther Burton nor the FDCPA require absolute certainty on this
point. A jury need only find it more likely than not that the
balance on the credit card was a consumer debt. See Burton,
934 F.3d at 584–85. That question is necessarily fact-intensive
and highly contextual.
Here, the facts and context point in Woods’s favor. In stark
contrast to the long list of transactions in Burton, the identity
theft here involved someone making just a single purchase.
Burton teaches that “the types of purchases made on the credit
card may be relevant” to the question whether they were con-
sumer or business purchases. Id. at 584. And common sense
tells us that business travelers do not often purchase one-way
airline tickets. Under these circumstances, a reasonable jury
could conclude that the odds that the purchase was made for
consumer purposes were better than a coin flip.
Resurgent insists that the FDCPA required Woods to do
more. In its briefing, Resurgent even goes so far as to suggest
that “Woods could have subpoenaed American Airlines” to
“identif[y] the person who took the flight at issue.” But what
then? Presumably, Resurgent seems to argue, Woods could
8 No. 21-1981
have tracked down the identity thief, persuaded him to sit for
a deposition, and hoped he did not invoke his Fifth Amend-
ment right not to say whether his flight was for business
or pleasure.
No way. We think it implausible that Congress, in drafting
a consumer protection statute like the FDCPA, would have
sent consumers on such a wild goose chase. Where, as here,
the nature of a disputed debt permits a reasonable inference
that it was undertaken “for personal, family, or household
purposes,” an FDCPA plaintiff has met his burden under
§ 1692a(5).
So we proceed to the merits of Woods’s FDCPA claim that
Resurgent used “false representation[s] or deceptive means to
collect or attempt to collect any debt.” 15 U.S.C. § 1692e(10).
Woods’s contention relies on hindsight: because American
Airlines now says he does not owe the $723.55 balance on the
credit card, Resurgent’s letters indicating that he did owe that
amount were literally “false” means of attempting to collect
that debt.
But literal falsity is not the standard under § 1692e. We
have instead explained that “[i]f a statement would not mis-
lead the unsophisticated consumer, it does not violate the
FDCPA—even if it is false in some technical sense.” Wahl v.
Midland Credit Mgmt., Inc., 556 F.3d 643, 645–46 (7th Cir. 2009).
Put another way, under § 1692e, a statement “isn’t ‘false’ un-
less it would confuse the unsophisticated consumer.” Id.
On appeal, Woods fails to grapple with the applicable stat-
utory standard. He urges that the FDCPA requires “strict lia-
bility” for any and all false statements. But we rejected this
exact argument in Wahl, see id. at 645, and we do so again
No. 21-1981 9
today. The FDCPA does impose strict liability in the sense
that “a collector need not be deliberate, reckless, or even neg-
ligent to trigger liability”—but “the state of mind of the rea-
sonable debtor is always relevant.” Id. at 646 (cleaned up) (em-
phasis in original).
Woods has not explained why Resurgent’s letters seeking
to collect the American Airlines debt were false as that term
is defined in our cases, as distinct from false in a literal sense.
The unsophisticated consumer possesses “a reasonable
knowledge of [his] account’s history,” id. at 646, and so would
have known that, contrary to the assertions in Resurgent’s let-
ters, he had never opened a Citibank account ending in 9762
and bought a flight on American Airlines. Armed with this
knowledge, the unsophisticated consumer would have
known the letters were sent in error—just as Woods did here.
The fact that American Airlines later confirmed Woods’s in-
tuition that the debt was not his does not render Resurgent’s
letters actionable. Instead, because the statements in those let-
ters were not ones that would “influence a consumer’s deci-
sion … to pay a debt,” Muha v. Encore Receivable Mgmt., Inc.,
558 F.3d 623, 628 (7th Cir. 2009), they were not “false”
within the meaning of § 1692e(10). We therefore affirm the
district court’s entry of summary judgment for Resurgent
and LVNV.
B
We turn now to Woods’s claims under FCRA. Resurgent’s
receipt of the ACDV triggered a statutory obligation to “con-
duct an investigation with respect to the disputed infor-
mation.” 15 U.S.C. § 1681s-2(b)(1)(A). That investigation, we
have held, must be “reasonable”—pro forma inquiries will
not do. Westra v. Credit Control of Pinellas, 409 F.3d 825, 827
10 No. 21-1981
(7th Cir. 2005). And the reasonableness of a furnisher’s inves-
tigation “is a factual question normally reserved for trial” un-
less the defendant’s procedures were reasonable “beyond
question.” Id.What counts as a reasonable investigation depends on the
content of the ACDV the furnisher receives. In Westra, the re-
port contained only “scant information regarding the nature
of [the] dispute”: a claim that the account “did not belong” to
the plaintiff. Id. In these circumstances, we held the fur-
nisher’s limited investigation, in which it “verified [the plain-
tiff’s] name, address, and date of birth,” to be reasonable be-
yond question. Id. But we left open the possibility that, had
the ACDV indicated that the dispute concerned fraud or iden-
tity theft, “a more thorough investigation” may have been re-
quired. Id.; see also Gorman v. Wolpoff & Abramson, LLP, 584
F.3d 1147, 1157 (9th Cir. 2009) (“The pertinent question is …
whether the furnisher’s procedures were reasonable in light
of what it learned about the nature of the dispute from the
description in the CRA’s notice of dispute.”) (citing Westra,
409 F.3d at 827).
Woods says a more thorough investigation was required
here. The June 6 police report attached to the ACDV described
Woods’s claim that “someone had obtained a credit card [in]
his name and had made charges.” Given this added detail,
Woods contends, Resurgent’s investigation, which consisted
primarily of matching his name and address to the infor-
mation in its files, could not have been reasonable as a matter
of law. Of course his name would match, Woods says, as that
is the very essence of identity theft.
If that were all the information the ACDV contained,
Woods might be right. But remember that the ACDV also had
No. 21-1981 11
attached to it the officer’s commentary on the police report
indicating that American Airlines had sent Woods two letters
“stating that they had completed an investigation and they
determined that it was in fact him” who made the purchase.
Far from helping Woods’s case, this information seemed to
indicate that there was in fact no fraud—no identity theft—
and Resurgent was well within its rights to rely on this repre-
sentation to some degree.
Given that the ACDV made it seem that the vendor had
already resolved Woods’s fraud claim against him, Resur-
gent’s next move was similarly reasonable. On August 15,
2019, Resurgent sent Woods the same letter it had sent him on
May 1, once again inviting him to provide additional docu-
mentation to help make his case and attaching a blank iden-
tity theft affidavit for him to complete. And yet again Woods
responded to this letter with silence, even though he had long
known about the out-of-date home address and the bogus
email address used to open the account—information that
could have done much to clear things up.
Under these circumstances, we cannot say that Resur-
gent’s investigation was unreasonable. But a word to the wise:
this opinion is no license for furnishers to offload their
§ 1681s-2(b)(1)(A) investigation obligations to consumers
by spamming them with requests for additional information.
Instead, like all questions of reasonableness, our conclusions
depend on the totality of the circumstances in the case be-
fore us.
* * *
For these reasons, the district court’s judgment is
AFFIRMED.