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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`Case No. 4:13cv544
`Judge Mazzant
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`§§
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`§
`§
`§
`§
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`DAVID E. MACK
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`v.
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`PROGRESSIVE FINANCIAL
`SERVICES, INC., CHRISTOPHER HALE
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`MEMORANDUM OPINION AND ORDER1
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`Pending before the Court is Defendants’ Motion for Summary Judgment (Dkt. #30). Having
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`considered the relevant pleadings, the Court finds that the motion should be granted.
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`BACKGROUND
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`Plaintiff David E. Mack, pro se, filed suit alleging that Defendants Progressive Financial
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`Services, Inc. (“Progressive”) and Christopher Hale (“Hale”) violated the Fair Debt Collection
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`Practices Act, 15 U.S.C. § 1692 et seq. (the “FDCPA”).
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`On December 12, 2012, Progressive sent Plaintiff a letter which notified Plaintiff that his
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`account had been referred to Progressive for collection. This letter stated that the creditor was the
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`City of Dallas and gave the creditor account number and the debtor’s name as Plaintiff. The letter
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`also stated a balance due of $145.46. The letter also stated the following:
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`This letter serves as formal notice that your above referenced account has been
`referred to us for collection. You are hereby notified that your responsibilities include
`repayment of the balance. The balance of your account is due in full. In order to
`avoid any further collection activity, mail your payment directly to my attention or
`call to discuss arrangements.
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`The letter also stated as follows:
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`1On October 27, 2014, the undersigned entered a report and recommendation in this case as the United
`States Magistrate Judge to whom this case was referred. This case is now assigned to the undersigned as the
`presiding United States District Judge, and this memorandum opinion and order is issued accordingly.
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`Case 4:13-cv-00544-ALM Document 43 Filed 01/08/15 Page 2 of 9 PageID #: 299
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`Unless you notify this office within 30 days after receiving this notice that you dispute
`the validity of the this debt, or any portion thereof, this office will assume this debt
`is valid. If you notify this office in writing within 30 days from receiving this notice,
`this office will obtain verification of the debt or obtain a copy of a judgment and mail
`you a copy of such judgment or verification. If you request this office in writing
`within 30 days after receiving this notice, this office will provide you with the name
`and address of the original creditor, if different from the current creditor.
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`On December 22, 2012, Plaintiff disputed the debt and requested validation. On December
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`27, 2012, Progressive provided Plaintiff a letter pertaining to the debt. This letter stated that the City
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`of Dallas was the original creditor and current creditor, provided the account number, reference
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`number, and the current balance of $145.46. The letter noted that the copy of the account details
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`were attached. The attachment was a computer printout that had Plaintiff’s name, address, and
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`amount claimed. The attachment also listed this type of account as “water” and that “customer
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`refuses to pay” as the reason for suspension of the account. The attachment also listed the collection
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`agency as Penn Collection Agency. The attachment did not list the City of Dallas as the creditor.
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`Plaintiff now contends that Progressive’s verification was inadequate and violated the
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`FDCPA. He is seeking statutory damages, his attorney’s fees2 and costs, and post-judgment interest.
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`Specifically, Plaintiff alleges that Defendants violated 15 U.S.C. § 1692g(b) and § 1692e based on
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`Progressive’s December 12, 2012 and December 27, 2012 letters.
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`On June 27, 2014, Defendants filed a motion for summary judgment (Dkt. #30). On August
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`5, 2014, Plaintiff filed a response (Dkt. #35). On August 13, 2014, Defendants filed a reply (Dkt.
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`#36).
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`se.
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`2 In Plaintiff’s response, he concedes that he is not seeking attorney’s fees in this case because he is pro
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`2
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`Case 4:13-cv-00544-ALM Document 43 Filed 01/08/15 Page 3 of 9 PageID #: 300
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`LEGAL STANDARD
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`The purpose of summary judgment is to isolate and dispose of factually unsupported claims
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`or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper
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`if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there
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`is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
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`law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that
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`a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
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`477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor of the party
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`opposing the motion for summary judgment. Casey Enterprises, Inc. v. American Hardware Mut.
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`Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which
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`facts are material. Anderson, 477 U.S. at 248.
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`The party moving for summary judgment has the burden to show that there is no genuine
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`issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant
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`bears the burden of proof on a claim or defense on which it is moving for summary judgment, it
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`must come forward with evidence that establishes “beyond peradventure all of the essential elements
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`of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). But if the
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`nonmovant bears the burden of proof, the movant may discharge its burden by showing that there
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`is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v.
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`Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its
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`burden, the nonmovant must “respond to the motion for summary judgment by setting forth
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`particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing
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`Anderson, 477 U.S. at 248-49). The nonmovant must adduce affirmative evidence. Anderson, 477
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`3
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`Case 4:13-cv-00544-ALM Document 43 Filed 01/08/15 Page 4 of 9 PageID #: 301
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`U.S. at 257.
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`DISCUSSION AND ANALYSIS
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`Defendants move for summary judgment on all FDCPA claims. The purpose of the FDCPA
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`is to “eliminate abusive debt collection practices by debt collectors, to insure that those debt
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`collectors who refrain from using abusive debt collection practices are not competitively
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`disadvantaged, and to promote consistent State action to protect consumers against debt collection
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`abuses.” 15 U.S.C. § 1692(e). The FDCPA restricts debt collectors from making false or misleading
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`representations or using unfair collection methods. Id.; 15 U.S.C. §§ 1692e, 1692f. Debt collectors
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`must also provide certain written information concerning the debt collection. 15 U.S.C. § 1692g.
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`Defendants first assert that Plaintiff’s section 1692g(b) claim fails, asserting only that they
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`complied with the notice requirements of the FDCPA. Section 1692g(b) provides that if a consumer
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`notifies the debt collector in writing within 30 days of receipt of an initial communication regarding
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`collection of a debt that the debt is disputed, the debt collector must “cease collection of the debt”
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`until it “obtains verification of the debt or a copy of a judgment, or the name and address of the
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`original creditor, and a copy of such verification or judgment, or name and address of the original
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`creditor, is mailed to the consumer by the debt collector.” 15 U.S.C. § 1692g(b). To sustain a claim
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`pursuant to section 1692g(b), the consumer must dispute the debt or any portion thereof within 30
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`days of receipt of the initial communication from the debt collector. Id.
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`The only question raised in Defendants’ motion for summary judgment is whether
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`Defendants provided proper verification under the FDCPA. Defendants assert that all that is
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`required for verification is providing in writing that the amount being demanded from the creditor
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`is owed and that the debt collector is not required to keep detailed files of the alleged debt.
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`4
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`Case 4:13-cv-00544-ALM Document 43 Filed 01/08/15 Page 5 of 9 PageID #: 302
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`Defendants rely upon Azar v. Hayter, 874 F. Supp. 1314, 1317 (N.D. Fla.), aff'd, 66 F.3d 342 (11th
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`Cir. 1995), cert. denied, 516 U.S. 1048 (1996) and Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir.
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`1999).
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`Plaintiff asserts that his request for validation requested the following: “(1) what the money
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`you say I owe is for; (2) Explain and show me how you specifically calulated the entire amount of
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`what you say I owe; (3) Provide me with copies of any and all papers that show I agreed to pay what
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`you say I owe; (4) Identify the original creditor.” Plaintiff asserts that he did not ask for anything
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`other than information that would allow him to discern what the correct amount alleged to be due
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`was, what the obligation was incurred for, to whom it was owed, and proof that Plaintiff had agreed
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`to pay what was allegedly due. Plaintiff agrees with Defendants that debt collectors are not required
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`to provide copies of bills or other detailed evidence of the debt; however, Plaintiff asserts that
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`verification requires more than what was provided by Defendants.
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`The FDCPA does not define what constitutes proper debt verification, nor has the Fifth
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`Circuit specifically addressed the requirements of verification under the FDCPA. Since verification
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`is undefined by the FDCPA the Court “carries its ordinary meaning.” Thompson v. Somervell
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`County, 431 F. App’x 338, 341 (5th Cir. 2011) (quoting Crawford v. Metro. Gov't of Nashville &
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`Davidson Cnty, 555 U.S. 271 (2009)); Garland v. Roy, 615 F.3d 391, 399 (5th Cir. 2010). “This
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`meaning must be determined ‘from the context in which [the words] are used.’” Martin v. Alamo
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`Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003) (quoting Thompson v. Goetzmann, 337
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`F.3d 489, 497 (5th Cir. 2003)). “Dictionaries are a principal source for ascertaining the ordinary
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`meaning of statutory language[.]” Id. (citations omitted).
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`Verification is defined as “the act or process of verifying or the state of being verified: the
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`5
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`Case 4:13-cv-00544-ALM Document 43 Filed 01/08/15 Page 6 of 9 PageID #: 303
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`authentication of truth or accuracy by such means as facts, statements, citations, measurements, or
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`attendant circumstances” by Webster’s Unabridged Third New International Dictionary (1986). The
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`Court does not find that this dictionary definition is helpful.
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`Other circuit courts addressing this provision of the FDCPA has determined that verification
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`is not intended to give a debtor a detailed accounting of the debt to be collected. Instead,
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`“[c]onsistent with the legislative history, verification is only intended to eliminate the problem of
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`debt collectors dunning the wrong person or attempting to collect debts which the consumer has
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`already paid.” Chaudhry, 174 F.3d at 406; Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d
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`997, 1003 (8th Cir. 2011); Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162 (9th Cir.
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`2006). In Clark, the Ninth Circuit adopted the standard as articulated by the Fourth Circuit, holding
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`that “[a]t the minimum, ‘verification of a debt involves nothing more than the debt collector
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`confirming in writing that the amount being demanded is what the creditor is claiming is owed.’”
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`Id. at 1173–1174 (quoting Chaudhry, 174 F.3d at 406). In Dunham, the Eighth Circuit declined to
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`set a high threshold. 663 F.3d at 1004. More recently, the Sixth Circuit addressed the question of
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`what verification means for purposes of section 1692g(b), and stated the following:
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`These cases suggest that the “baseline” for verification is to enable the consumer to
`“sufficiently dispute the payment obligation.” Although the answer to that question
`depends on the facts of a particular situation, the cases reflect that an itemized
`accounting detailing the transactions in an account that have led to the debt is often
`the best means of accomplishing that objective. Intuitively, such a practice makes
`good sense. In fact, it would likely lead to faster resolutions of disputes with those
`consumers who act in good faith, because it will either show a valid debt that a
`consumer acting in good faith will actually pay, uncover an error in the record of the
`debt leading to the cancellation of the debt, or reveal the underlying dispute between
`the parties that can then be resolved. Finally, such an approach is consonant with the
`congressional purpose of the verification provision.
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`Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 785 (6th Cir. 2014). The
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`6
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`Sixth Circuit determined the following:
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`The verification provision must be interpreted to provide the consumer with notice of
`how and when the debt was originally incurred or other sufficient notice from which
`the consumer could sufficiently dispute the payment obligation. This information does
`not have to be extensive. It should provide the date and nature of the transaction that
`led to the debt, such as a purchase on a particular date, a missed rental payment for
`a specific month, a fee for a particular service provided at a specified time, or a fine
`for a particular offense assessed on a certain date.
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`Id. at 785-86.
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`Plaintiff cites the Court to Haddad, and Defendants fail to address this case in its reply brief.
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`The Court finds that the Haddad analysis is persuasive and adopts it. Now, the question is whether
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`Defendants’ verification letter met this standard. The Court finds that Defendants’ verification letter
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`does not meet this standard.
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`However, Defendants also contend that it is entitled to summary judgment on this claim
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`because, after receiving Plaintiff’s request for verification, it sent Plaintiff the verification
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`information available to it and ceased all further collection activities. “When a debt collector
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`receives timely notice of a disputed debt by a consumer, it has a choice: it may either provide the
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`requested verification, or it may cease all collection activities.” Hunsinger v. SKO Brenner
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`American, Inc., No. 3:13-cv-0988-D, 2014 WL 1462443, at *3 (N.D. Tex. Apr. 15, 2014) (citing
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`Bashore v. Resurgent Capital Servs., L.P., 452 F. App’x 522, 524 (5th Cir. 2011); Guerrero v. JRM
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`Acquisitions LLC, 499 F.3d 926, 940 (9th Cir. 2007); Jang v. A.M. Miller & Assocs., 122 F.3d 480,
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`483 (7th Cir. 1997); Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1031-32 (6th Cir. 1992)).
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`[N]ot all debts can or will be verified. After all, in the real world, creditors and debt
`collectors make mistakes, and sometimes initiate collection activities against persons
`who do not owe a debt. When a collection agency cannot verify a debt, the statute
`allows the debt collector to cease all collection activities at that point without
`incurring any liability for the mistake.
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`7
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`Case 4:13-cv-00544-ALM Document 43 Filed 01/08/15 Page 8 of 9 PageID #: 305
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`Jang, 122 F.3d at 483. Defendants assert that it sent the validation information that it had to
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`Plaintiff, and ceased all collection activities. Plaintiff asserts that this statement is untrue; however,
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`Plaintiff’s evidence suggests that this is exactly what Defendants did. Plaintiff’s evidence reveals
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`that Defendants sent Plaintiff the initial collection letter, followed by the verification information,
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`which Plaintiff asserts, and the Court agrees, is insufficient. However, this is the entirety of the
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`correspondence received by Plaintiff, and there is no further evidence of any collection activity on
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`the part of Defendants. Thus, for this reason, the Court finds that summary judgment should be
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`granted on Plaintiff’s claim under 15 U.S.C. § 1692g(b), since Defendants ceased collection activity
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`following Plaintiff’s request for verification.
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`Defendants also move for summary judgment on Plaintiff’s claim that Defendants engaged
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`in the “false representation of the character, amount, or legal status of any debt.” 15 U.S.C. §
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`1692e(2)(A).3 Section 1692e(2) generally prohibits a debt collector from using “any false,
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`deceptive, or misleading representation or means in connection with the collection of any debt.” 15
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`U.S.C. § 1692e(2). Section 1692e(2)(A) prohibits a debt collector from misrepresenting “the
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`character, amount, or legal status of any debt.” 15 U.S.C. § 1692e(2)(A).
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`Plaintiff asserts that the confusing and convoluted verification letter is a misrepresentation
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`of the character, amount, or legal status of the alleged debt. The Court finds that Plaintiff has failed
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`to raise a question of fact on this issue. Even if the verification letter failed to contain sufficient
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`3 Plaintiff alleges a violation of 15 U.S.C. § 1692e(2)(10), which allows for recovery if a debt collector
`used “any false representation or deceptive means to collect or attempt to collect any debt or to obtain information
`concerning a consumer.” However, the language Plaintiff uses in his petition indicates that he is trying to recover
`under 15 U.S.C. § 1692e(2)(A).
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`8
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`Case 4:13-cv-00544-ALM Document 43 Filed 01/08/15 Page 9 of 9 PageID #: 306
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`detail, that does not amount to a claim under section 1692e(2)(A). The Court finds that Defendants
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`did not use any false representation or deceptive means to collect or attempt to collect any debt or
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`to obtain information concerning Plaintiff. Summary judgment should be granted on this claim.
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`CONCLUSION
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`Based on the foregoing, the Court finds that Defendants’ Motion for Summary Judgment
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`(Dkt. #30) is hereby GRANTED. Plaintiff’s claims under 15 U.S.C. §§ 1692g(b) and 1692e(2)(10)
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`are DISMISSED with prejudice.
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`9