United States District Court, W.D. Arkansas, Fort Smith Division
OPINION AND ORDER
HOLMES, III U.S. DISTRICT JUDGE
the Court is Defendant DNF Associates LLC
(“DNF”)'s motion (Doc. 25) for summary
judgment, brief (Doc. 27) in support, and statement of facts
(Doc. 26). Plaintiff Stephanie Reygadas filed a response
(Doc. 28) in opposition, and a statement of facts (Doc. 29).
DNF then filed a reply (Doc. 30). The parties filed
additional unsolicited briefing (Docs. 31-34), which the
Court has not considered.
amended complaint, Plaintiff alleges that DNF violated the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et
seq. (“FDCPA”) and the Arkansas Fair Debt
Collection Practices Act, Ark. Code Ann. § 17-24-501, et
seq. (“AFDCPA”). DNF argues in its motion that
summary judgment is appropriate because it does not meet the
statutory definition of “debt collector” as
required by the FDCPA and the AFDCPA for the statutory
requirements to apply. (Doc. 27, p. 1). DNF alternatively
argues that it cannot be vicariously liable for the actions
of Radius Global Solutions (“RGS”) because RGS
did not violate the FDCPA or AFDCPA. For the reasons stated
below, DNF's motion for summary judgment will be DENIED
and partial summary judgment will be entered in favor of
Stephanie Reygadas purchased a camera from Purchasing Power,
an online retail catalog. (Doc. 11, p. 7, ¶ 44). A
dispute arose between Reygadas and Purchasing Power regarding
the camera and Reygadas refused to pay the outstanding debt.
(Doc. 11, p. 7). Purchasing Power considered Reygadas's
account in default and sold the account to DNF Associates
LLC, a debt purchaser. (Doc. 29, p. 1). DNF then hired the
Jacob Law Group, PLLC to collect on the account. (Doc. 29, p.
3). On December 6, 2016, the Jacob Law Group filed a lawsuit
in the Circuit Court of Crawford County against Reygadas for
her outstanding debt in the name of DNF, seeking judgment on
the account. (Doc. 29-2, p. 2). On January 30, 2017,
Reygadas's attorney Corey McGaha served the Jacob Law
Firm with a Motion to Dismiss for Insufficient Process. (Doc.
29-2, p. 9). McGaha also electronically filed the motion with
the court on that date, generating a notice of electronic
filing. (Doc. 29-2, p. 32). On January 4, 2018, Crawford
County Circuit Court dismissed DNF's action against
Reygadas for insufficiency of process. (Doc. 29-2, p. 50).
DNF then contracted with RGS to collect on Reygadas's
account. (Doc. 29, p. 4). DNF provided RGS with Reygadas'
personal information, original creditor, and account balance.
Id. However, DNF did not notify RGS of the lawsuit
filed against Reygadas in state court, nor did it share with
RGS that Reygadas was represented by an attorney.
Id. On July 4, 2018, RGS sent a letter via U.S. mail
to Reygadas regarding the debt at issue in this case.
Id. Reygadas had never consented to being contacted
directly by a debt collector.
Summary Judgment Standard
party moves for summary judgment, it must establish both the
absence of a genuine dispute of material fact and that it is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602 (8th Cir. 1999). In order for there to be a genuine
issue of material fact, the nonmoving party must produce
evidence “such that a reasonable jury could return a
verdict for the nonmoving party.” Allison v.
Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th
Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). Only facts “that might
affect the outcome of the suit under the governing law”
need be considered. Anderson, 477 U.S. at 248.
“[T]he non-movant must make a sufficient showing on
every essential element of its claim on which it bears the
burden of proof.” P.H. v. Sch. Dist. of Kan. City,
Mo., 265 F.3d 653, 658 (8th Cir. 2001) (quotation
omitted). Facts asserted by the nonmoving party “must
be properly supported by the record, ” in which case
those “facts and the inferences to be drawn from them
[are viewed] in the light most favorable to the nonmoving
party.” Id. at 656-57. A court may
“enter summary judgment sua sponte, so long as
the losing party was on notice that she had to come forward
with all of her evidence.” Celotex Corp. v.
Catrett, 477 U.S. 317, 326 (1986); Madewell v.
Downs, 68 F.3d 1030, 1049 (8th Cir. 1995).
argues in its motion for summary judgment that Reygadas's
case should be dismissed for two reasons. DNF asserts that
under the FDCPA and the AFDCPA, it cannot be held liable for
a violation because it is not a “debt collector”
as required by the statutes for their requirements to apply.
Alternatively, DNF contends that even if it is considered a
“debt collector” under the statutes, there was no
violation of the statutes because RGS did not have
“actual knowledge” that Reygadas was represented
by counsel when RGS sent a letter on DNF's behalf,
attempting to collect the outstanding debt. If RGS did not
violate the statutes, DNF cannot be vicariously liable for a
violation. Each of DNF's arguments will be addressed in
purpose of the Fair Debt Collection Practices Act is to
“eliminate abusive debt collection practices by debt
collectors . . . .” 15 U.S.C. § 1692. The FDCPA
provides a private right of action against “debt
collector[s]” who violate the FDCPA. 15 U.S.C. §
1692(k). The FDCPA defines a “debt collector” as:
[A]ny person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose
of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692(a)(6). The Arkansas Fair Debt
Collection Act similarly defines a debt collector as:
[A] person who uses an instrumentality of interstate commerce
or the mails in a business whose principal purpose is the
collection of debts or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.
Code Ann. § 17-24-502(5)(A). The AFDCPA definition is
“materially identical to the federal FDCPA definition
of ‘debt collector.'” Silberstein v. Fed.
Nat'l Mortg. Ass'n, No. 5:16-CV-05331, 2017 WL
187165, at * 2 (W.D. Ark. Jan. 17, 2017). Thus, the analysis
of whether DNF is a debt collector under the FDCPA and the
AFDCPA are the same. The statutes identify two types of
entities that may be classified as a “debt
collector:” 1) “any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts” or 2) “any person who regularly
collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due
another.” Henson v. Santander Consumer USA
Inc., ___ U.S. ___, 137 S.Ct. 1718, 1721 (2017).
Reygadas does not argue that DNF qualifies as a debt
collector under the second definition. Rather, Reygadas
argues that DNF qualifies because its principal business
purpose is the ...