Horkey, Amanda v. J.V.D.B. Inc ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3283
AMANDA HORKEY,
Plaintiff-Appellee,
v.
J.V.D.B. & ASSOCIATES, INC.,
AN ILLINOIS CORPORATION,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1034—Ian H. Levin, Magistrate Judge.
____________
ARGUED APRIL 11, 2003—DECIDED JUNE 20, 2003
____________
Before EASTERBROOK, MANION, and DIANE P. WOOD,
Circuit Judges.
MANION, Circuit Judge. Chris Romero, an employee
of J.V.D.B. & Associates, Inc., a debt collection agency,
attempted by telephone to collect a client’s debt from
Amanda Horkey while she was at work. Horkey asked
him to give her a number she could call from her home.
When he refused she hung up. Romero made a second call
and left a profane message with Horkey’s coworker.
Horkey sued under the Fair Debt Collection Practices Act.
J.V.D.B. appeals from the district court’s entry of summary
2 No. 02-3283
judgment in favor of Horkey, the denial of its motion for
attorney’s fees, and the awarding of statutory and compen-
satory damages in Horkey’s favor. For the reasons set forth
below, we affirm in all respects.
I.
J.V.D.B. is a debt collection agency whose employee,
identifying himself as Chris Romero, telephoned Amanda
Horkey at her place of employment at least twice on January
9, 2001. In the first call, Romero demanded immediate
payment of a debt of $817.00. Horkey told Romero that she
could not talk to him at work and that she could call him
back from her home and arrange a payment schedule.
Romero, however, refused to end the conversation, so
Horkey hung up on him. Shortly thereafter, Romero called
back and spoke with Horkey’s coworker, Jimmie Scholes.
When Scholes told Romero that Horkey was away from
the office and asked if Romero wished to leave a message,
Romero told Scholes to “tell Amanda to quit being such
a [expletive] bitch,” and Romero then hung up the tele-
phone. Scholes passed on the message to Horkey. Shortly
after that, Horkey received a third telephone call, but the
caller hung up when she answered.
Horkey brought suit under the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. She alleged
the following claims: (1) a violation of § 1692c(a)(3)’s
prohibition on contacting the consumer at work in contra-
vention of the employer’s policy against such communica-
tion; (2) a violation of § 1692c(b)’s limits on contacting a
third party about the consumer’s debt; (3) a violation of
§ 1692d’s prohibition of obscene or profane language; and
(4) a violation of § 1692g’s requirement of a validation
notice. On January 4, 2002, the district court granted sum-
No. 02-3283 3
mary judgment in Horkey’s favor on all claims except for
her § 1692c(b) allegation. In later proceedings, the district
court granted J.V.D.B.’s motion for summary judgment
as to § 1692c(b) (third-party contact), but denied J.V.D.B.’s
motion for attorney’s fees pursuant to § 1692k(a)(3), which
allows a defendant to recover sanctions for an action
brought in bad faith and for the purpose of harassment.
Ultimately, after a bench trial on the issue of damages, the
district court awarded Horkey $1,000 in statutory and
$350.00 in actual damages. J.V.D.B. appeals summary
judgment as to Horkey’s claims under § 1692c(a)(3) and
§ 1692d, the district court’s denial of its motion for attor-
ney’s fees, and the district court’s award of statutory and
actual damages.
II.
This court reviews the district court’s grant of summary
judgment de novo, construing all facts in favor of J.V.D.B.,
the nonmoving party. Rogers v. City of Chicago, 320 F.3d
748, 752 (7th Cir. 2003). Summary judgment is proper when
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.” Fed. R. Civ. P. 56(c). Thus, “[s]ummary
judgment is appropriate if, on the record as a whole, a
rational trier of fact could not find for the non-moving
party.” Rogers, 320 F.3d at 752.
The first issue on appeal is whether summary judgment
in Horkey’s favor was appropriate as to § 1692c(a)(3),
which provides that
[w]ithout the prior consent of the consumer given
directly to the debt collector or the express permission
4 No. 02-3283
of a court of competent jurisdiction, a debt collector
may not communicate with a consumer in connection
with the collection of any debt . . . at the consumer’s
place of employment if the debt collector knows or
has reason to know that the consumer’s employer
prohibits the consumer from receiving such communi-
cation.
J.V.D.B. did not have Horkey’s prior consent or a court’s
express permission to communicate with her at work, so
the dispositive question is whether it knew or had reason
to know that Horkey’s employer prohibited such com-
munication.
The only evidence to which Horkey points in support
of the district court’s conclusion, as a matter of law, that
J.V.D.B. knew or should have known that her employer
prohibited her from receiving calls from debt collectors
is her statement to Romero that she could not talk to him
at work and her request for a number she could call from
her home. As Horkey paraphrased her protest in her
affidavit, she “told Romero that [she] could not talk to
him at work and asked him to give [her] his telephone
number so that [she] could call him back from [her] home
to set up a payment schedule.” J.V.D.B. argues that this
statement is susceptible to various interpretations and
that Romero therefore was in no position to know that
Horkey’s employer prohibited her from receiving debt-
related communication at work. The salient question is
whether Horkey’s statement was clear enough that, as a
matter of law, J.V.D.B. knew or had reason to know that
Horkey’s employer prohibited her from receiving Romero’s
call at work.
We agree with the district court that it was. Horkey
informed Romero that she could not discuss her debt
while at work, and J.V.D.B. presents no evidence that
No. 02-3283 5
Horkey’s employer did allow her to take debt-related calls.
Therefore we conclude that in this instance Romero had
reason to know that Horkey’s employer prohibited her
from receiving communications related to debt collection
while at work. See United States v. Central Adjustment
Bureau, Inc., 667 F. Supp. 370, 388 (N.D. Tex. 1986), aff’d
as modified, 823 F.2d 880 (5th Cir. 1987) (holding that, after
the consumer wrote the debt collector and “requested in
writing that he not call her at work,” further calls violated
§ 1692c(a)(3)).
It is true, as J.V.D.B. argues, that saying “I cannot talk
with you at work” could conceivably be understood to
mean something other than “my employer forbids me
from talking with you at work.” It could, for example,
mean “I do not wish to talk with you at work” or “I am too
busy to talk with you at work.” But this observation
does not create an issue of material fact because, as we
observed in Gammon v. GC Servs. Ltd. P’Ship, 27 F.3d 1254(7th Cir. 1994), the FDCPA exists to protect the unsophisti-
cated consumer. Id. at 1257. Unsophisticated consum-
ers, whatever else may be said about them, cannot be
expected to assert their § 1692c(a)(3) rights in legally pre-
cise phrases. It is therefore enough to put debt collectors
on notice under § 1692c(a)(3) when a consumer states in
plain English that she cannot speak to the debt collector
at work. That is what Horkey did. Without evidence that
J.V.D.B. knew, contrary to Horkey’s assertion, that her
employer did not prohibit her from taking debt-related
calls at work, she is entitled to summary judgment on her
§ 1692c(a)(3) claim.
We now turn to Horkey’s claim under § 1692d. Section
1692d provides that “a debt collector may not engage in
any conduct the natural consequence of which is to har-
ass, oppress, or abuse any person in connection with the
6 No. 02-3283
collection of a debt.” 15 U.S.C. § 1692d. Section 1692d(2),
which is the specific subsection upon which the district
court granted summary judgment, further provides that
“[t]he use of obscene or profane language or language
the natural consequence of which is to abuse the hearer
or reader” is a violation of this section. Id. The uncontested
evidence is that, within minutes after Horkey told Romero
that she could not discuss the debt while at work, Romero
called again and left a message with Horkey’s coworker,
Jimmie Scholes, asking Scholes to “tell Amanda to stop
being such a [expletive] bitch.” In an attempt to side-
step what would otherwise be a clear violation, J.V.D.B.
asserts that Romero’s message “was not spoken in connec-
tion with a debt collection nor was it meant to abuse the
hearer or reader.” Each half of this statement is preposter-
ous.
To state the obvious, Romero’s message was “in connec-
tion with the collection of a debt” because the undisputed
evidence is that Romero called Horkey’s workplace for
only one reason: to collect a debt. In that context, when
he told Horkey (via Scholes) to “stop being such a [exple-
tive] bitch,” Romero was not offering general advice about
how Horkey could improve her disposition. He was tell-
ing her, crudely but specifically, to be more receptive to
his entreaties regarding the debt. No other interpretation
of the facts is reasonable and thus, as a matter of law,
Romero’s message to Horkey was “in connection with the
collection of a debt.”
J.V.D.B.’s assertion that Romero’s message was not
intended to abuse the hearer likewise fails. J.V.D.B. points
to no evidence in the record regarding Romero’s intent,
which is just as well, because Romero’s intent is irrelevant.
What is determinative is whether “the natural consequence
of” Romero’s obscenity-laced message was to “abuse the
No. 02-3283 7
hearer.” 15 U.S.C. § 1692d(2). We need not examine the
varying meanings of the words employed to determine
that, in the context used, they were abusive as a matter of
law. Unequivocally they were. We therefore affirm sum-
1
mary judgment as to Horkey’s claim under § 1692d(2).
Next, we consider J.V.D.B.’s third argument, that the
district court erred in denying its motion for attorney’s fees
pursuant to § 1692k(a)(3), which allows a defendant to
collect reasonable attorney’s fees “[o]n a finding by the
court that an action under this section was brought in bad
faith and for the purpose of harassment.” We review the
district court’s finding on the issue of bad faith for clear
error. Swanson v. Southern Or. Credit Serv., Inc., 869 F.2d
1222, 1229 (9th Cir. 1988). We review the ultimate grant
or denial of attorney’s fees under § 1692k(a)(3) for an abuse
of discretion. Zagorski v. Midwest Billing Servs., Inc., 128
F.3d 1164, 1166 (7th Cir. 1997). J.V.D.B. contends that
Horkey violated § 1692k(a)(3) by bringing a meritless
claim under § 1692c(b). Section 1692c(b) states that
[e]xcept as provided in section 1692b of this title,
without the prior consent of the consumer given directly
to the debt collector, or the express permission of a
court of competent jurisdiction, or as reasonably neces-
1
J.V.D.B. also points out that Romero “never spoke to” Horkey
during his second call, apparently insinuating that there can
be no liability under § 1692d(2) where the offending language
is routed through an intermediary as opposed to being spoken
directly to the consumer. Had the same message been left
on Horkey’s voicemail, a violation would be conclusive. This
is worse because a third person received and relayed the state-
ment. But because J.V.D.B. fails to develop this argument
on appeal, the issue is waived. Martin v. Shawano-Gresham Sch.
Dist., 295 F.3d 701, 706 n. 4 (7th Cir. 2002).
8 No. 02-3283
sary to effectuate a postjudgment judicial remedy, a
debt collector may not communicate, in connection with
the collection of any debt, with any person other than
the consumer, his attorney, a consumer reporting
agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt
collector.
The district court denied summary judgment in Horkey’s
favor as to § 1692c(b) because it found that there was
no evidence that Romero discussed Horkey’s debt with
Scholes; i.e., in the district court’s estimation, Romero’s
call to Scholes was not “in connection with any debt” and
2
was thus not actionable under § 1692c(b). Instead, rea-
soned the court below, Romero’s conversation with
Scholes “was merely limited to inquiring as to [Horkey’s]
whereabouts and entailed the use of inappropriate, pro-
fane language.” Nonetheless, the district court denied
2
Whether the district court’s holding that Romero’s conversa-
tion with Scholes was not “in connection with the collection of
any debt” under § 1692c(b) is compatible with its holding that
the same conversation was “in connection with the collection of
a debt” under § 1692d is an issue that we need not reach on
appeal, because Horkey does not challenge the district court’s
entry of summary judgment in J.V.D.B.’s favor regarding her
claim pursuant to § 1692c(b). Likewise, we need not address
whether, as the district court reasoned, a violation of § 1692c(b)
requires the debt collector to convey some information about
the debt to a third party. At this point, it suffices to say that
district courts are split on this question, and that we leave the
matter for another day. Compare Horkey v. J.V.D.B. & Assocs., Inc.,
179 F. Supp. 2d 861, 868 (N.D. Ill. 2002) (holding that there can
be no liability under § 1692c(b) where there is no discussion of
the debt), with West v. Nationwide Credit, Inc., 998 F. Supp. 642,
644-45 (W.D.N.C. 1998) (reaching the opposite conclusion).
No. 02-3283 9
J.V.D.B.’s motion for attorney’s fees as to this issue because
it reasoned that the message Romero left with Scholes
“could be construed as sort of in context relating to” the
debt that Romero was attempting to collect from Horkey.
This is a generous assessment of the foul conversation
Romero had with Scholes. But because all of the evidence
points to the conclusion that Romero’s only reason for
calling Horkey’s workplace was to collect a debt, we share
the district court’s assessment of the situation insofar as
it held that a reasonable lawyer could have argued from
these facts that Romero’s abusive conversation with Scholes
was in connection with a debt and therefore triggered
liability under § 1692c(b).
We also affirm the denial of J.V.D.B.’s § 1692k(a)(3)
motion on an alternate ground. For J.V.D.B. to prevail,
it would have to establish that Horkey’s “action” was
brought in bad faith and for harassing purposes. 15 U.S.C.
§ 1692k(a)(3). An “action” “in its usual legal sense means
a lawsuit brought in a court.” Black’s Law Dictionary 28
(6th ed. 1990). Thus, J.V.D.B. must show that Horkey’s
entire lawsuit, and not just her claim under § 1692c(b), was
brought in bad faith and to harass J.V.D.B. Although we
have not had occasion to delineate what constitutes a
lawsuit brought in bad faith and for the purpose of harass-
ment under § 1692k(a)(3), we are confident that no sound
concept of such a suit could encompass an action in
which the plaintiff wins summary judgment on three of
her four asserted claims and has a colorable argument as
to the claim on which she ultimately did not prevail.
The district court was, accordingly, correct to deny
J.V.D.B.’s motion for attorney’s fees under § 1692k(a)(3). We
cannot fathom how it could have done otherwise. In fact,
at this juncture any bad-faith accusations would more
appropriately be directed at J.V.B.D. for appealing the
denial of its attorney’s fees, but that issue is not before us.
10 No. 02-3283
Finally, we address J.V.D.B.’s appeal as to the $1,000
in statutory damages and $350.00 in actual damages.
J.V.D.B. predicates its success on the issue of damages
on our reversing summary judgment. Because we affirm
summary judgment in all respects, J.V.D.B.’s appeal as to
damages fails.
III.
For the reasons set forth above, we affirm in all respects.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-20-03