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Scheffler v. Gurstel Chargo, P.A.

United States Court of Appeals, Eighth Circuit

August 27, 2018

Troy K. Scheffler Plaintiff- Appellant
v.
Gurstel Chargo, P.A. Defendant-Appellee

          Submitted: May 15, 2018.

          Appeal from United States District Court for the District of Minnesota

          Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE.

         Troy Scheffler sued Gurstel Chargo, P.A. ("Gurstel"), claiming Gurstel violated the Fair Debt Collection Practices Act ("FDCPA"). The district court[1]granted Gurstel's motion for summary judgment. We affirm.

          I. Background

         Scheffler is a former debt collector who has litigated a number of FDCPA claims against other debt collectors. Gurstel is a law firm engaged in debt collection. Scheffler's case against Gurstel involves a credit card debt for which Gurstel obtained judgment against Scheffler in 2009, and later communications between Scheffler and Gurstel.

         In both 2014 and 2015, Gurstel mailed Financial One Credit Union a garnishment notice in an attempt to collect on the judgment. Each time, Gurstel also mailed a copy of the garnishment summons to Scheffler, along with a similar cover letter. The 2015 cover letter stated, "These documents were served upon Financial One Credit Union, on or about August 6, 2015. If you have any questions, please contact one of our collection representatives at 800-514-0791." (emphasis in original). The letter also included what is sometimes referred to in the industry as a "mini-Miranda" warning, which stated: "This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose."

         In September 2015, Scheffler called the telephone number included in the 2015 cover letter and reached Gurstel collection representative John Salter. The conversation quickly drifted toward the underlying debt, prompting Scheffler to ask, "OK, so what am I gonna do about that?" In response, Salter broached the possibility of settling the debt. Scheffler soon told Salter that Scheffler had sent Gurstel a "cease" letter and suggested Salter violated its directive. The conversation ended soon after.

         Scheffler thereafter sued Gurstel in state court and Gurstel removed the case to federal court. Scheffler's operative complaint alleged that Gurstel violated his rights under provisions of the FDCPA, 15 U.S.C. §§ 1692c(c) and 1692e(10). Section 1692c(c), entitled "Ceasing communication," states in part:

If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt . . . .

         The FDCPA expressly exempts certain communications, including those made "to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor." Id. at § 1692c(c)(2).

         Section 1692e, entitled "False or misleading misrepresentations," prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." It is deemed a violation if a debt collector makes "use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." Id. at § 1692e(10).

         Scheffler alleged his rights under § 1692c(c) were violated when, after receiving his cease letter, Gurstel: (1) sent Scheffler the garnishment summons cover letter; and (2) tried to collect the underlying debt during the September phone call. As to the alleged violation of § 1692e(10), Scheffler alleged the cover letter to the garnishment summons was part of a false and deceptive practice under which Gurtsel "deceives debtor consumers to telephone their business to discuss a garnishment summons when in fact the telephone number provided reaches those unable to discuss legal documents." ...


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