Lopez, Dan v. RS Clark & Associates, Inc

Citation: Not availableDocket: 05-12-00868-CV

Court: Court of Appeals of Texas; January 13, 2014; Texas; State Appellate Court

Original Court Document: View Document

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Dan Lopez appealed the trial court's judgment favoring RS Clark Associates, Inc. regarding a debt collection dispute. Lopez contested the trial court's denial of his motion for summary judgment and the granting of Clark's motion. The case originated from a cleaning charge assessed by Hunter’s Ridge Apartments after Lopez vacated in October 2006, which was later assigned to Clark for collection in June 2007. Despite receiving a notice and communication from Clark, Lopez did not respond initially but later expressed his lack of recognition of the debt in a February 2009 letter, offering payment contingent upon the deletion of the debt from his credit profile. He stated his preference for communication via email and limited calls to his home due to inconvenience.

From May to September 2009, Clark attempted to contact Lopez multiple times at home without success. In January 2010, Lopez sued Clark for violations of various debt collection practices, alleging unauthorized calls and failure to communicate the disputed status of the debt to credit agencies. Clark counterclaimed for sanctions, asserting Lopez's claims were groundless and intended to harass. Both parties filed competing motions for summary judgment; however, Lopez did not provide evidence for his motion. The court granted Clark's motion and denied Lopez's, later ruling in favor of Clark on the counterclaim and awarding attorney’s fees. On appeal, Lopez argued that his February 2009 letter constituted notice triggering protections under debt collection laws. The appeal did not contest the ruling on Clark’s counterclaim or the attorney’s fees awarded. The summary judgment rules allow for resolving cases with only legal questions and no factual disputes.

Both parties have filed motions for summary judgment, resulting in one being granted and the other denied. In such cases, the appellate court reviews the evidence from both sides and addresses all relevant questions. The review is conducted de novo to determine if a party's entitlement to judgment is established as a matter of law. If reversible error is found, the appellate court will render the judgment that should have been issued by the trial court. 

To succeed in a traditional motion for summary judgment, the moving party must demonstrate the absence of genuine issues of material fact and establish their entitlement to judgment as a matter of law. Specifically, for Clark to obtain summary judgment, it needed to legally disprove one essential element of Lopez’s claims.

Under the Fair Debt Collection Practices Act (FDCPA), a debt collector must cease communication with a consumer upon receiving a written notice from the consumer that either states refusal to pay or requests cessation of communication, with certain exceptions. The FDCPA also prohibits debt collectors from transmitting false credit information, including failing to acknowledge a disputed debt. Similarly, the Texas Debt Collection Practices Act (TDCPA) prevents debt collectors from indicating to anyone other than the consumer that the consumer is willfully refusing to pay a nondisputed debt when it is actually in dispute.

For a plaintiff to succeed under these acts, three criteria must be met: the plaintiff must be a consumer, the defendant must be a debt collector, and the defendant must have engaged in prohibited acts under the FDCPA and TDCPA. 

In Lopez's second amended petition, he asserted that he sent a letter to Clark on February 24, 2009, requesting cessation of all communications. He provided a certified mail receipt indicating that Clark's registered agent received the letter on February 25, 2009. Lopez further claimed that despite his request, Clark called his home phone and continued reporting the disputed debt on his credit report. 

Clark contended it was entitled to summary judgment because Lopez’s letter did not explicitly instruct Clark to stop all communications or dispute the debt, and claimed there was no evidence that the information reported to the credit bureau was false. Clark supported its motion with a copy of Lopez's letter and his deposition testimony. In this letter, Lopez discussed a $52.34 debt, expressed his lack of recognition of the debt, made an offer for full payment in exchange for deletion of the debt record, and prohibited any phone communication with Clark, emphasizing his inability to receive personal communications at work.

Lopez encouraged Clark to accept his offer and adhere to the attached agreement in his letter. During his deposition, Lopez expressed that calls to his home were inconvenient due to his night work but admitted he did not inform Clark of his schedule. He stated there were times when he could take calls at home. The letter did not indicate that Lopez wanted Clark to cease communication; although he did not consent to calls on his cell or work phones, he merely described home calls as inconvenient without withdrawing consent for home calls. Furthermore, the letter invited discussions about a settlement and did not dispute the debt, instead offering full payment. Lopez acknowledged that Clark's statements to the credit reporting agency were accurate and did not claim any inaccuracies regarding his credit report. Consequently, Clark demonstrated that it did not report false information, and Lopez failed to raise a material fact issue. He did not provide evidence to support his motion or response to Clark’s summary judgment motion, arguing instead that the FDCPA does not require precise language to forbid communication and that he should be judged by a “least sophisticated consumer” standard. While agreeing that specific language is not mandatory, the court rejected Lopez’s claim that his wording sufficiently prohibited all communication. Lopez did not forbid calls to his home phone nor withdraw consent; he only stated they were inconvenient, followed by providing his cell phone number and refusing consent for those calls. The letter indicated Lopez understood how to clearly communicate his intentions and did not prohibit further contact. The trial court's grant of summary judgment in favor of Clark on Lopez’s FDCPA, TDCPA, and related DTPA claims was affirmed, with the court ordering Lopez to pay Clark's appeal costs.