Marx v. General Revenue Corp.
668 F.3d 1174
| 10th Cir. | 2011Background
- Marx defaulted on a student loan and was pursued by GRC, hired by EdFund in Sept. 2008.
- Marx sued GRC in Oct. 2008 alleging abusive/threatening FDCPA calls; GRC offered judgment but Marx did not accept.
- In Mar. 2009 Marx amended to add FDCPA claim based on a workplace facsimile requesting employment information.
- District court held the challenged practices were not abusive; disputed the fax’s status as a FDCPA “communication” with a third party.
- The September 2008 fax to Marx’s employer aimed to verify employment for wage garnishment; form included GRC’s branding and an internal ID, with blanks for employment details; Marx appeals only the “communication” issue and the costs rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the facsimile is a FDCPA “communication.” | Marx argues the fax conveyed information about a debt to a third party. | GRC contends the fax did not convey debt information and thus was not a communication. | Facsimile not a communication under FDCPA. |
| Whether costs awarded under Rule 54(d) were proper despite FDCPA language. | FDCPA §1692k(a)(3) does not permit Rule 54(d) costs absent bad-faith findings. | FDCPA supersedes Rule 54(d) and allows cost/fee shifting. | Rule 54(d) costs may apply; FDCPA does not supersede Rule 54(d) for costs. |
| Whether Rule 68 costs were appropriate given the offer of judgment. | Rule 68 should not impose costs when the offer was not accepted. | Rule 68 applies where plaintiff fails to obtain a more favorable judgment than offer; here it did not. | Rule 68 error was harmless because Rule 54(d) costs were proper. |
Key Cases Cited
- Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267 (10th Cir. 2001) (standard of review for factual vs. legal conclusions; clear-error/de novo)
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598 (U.S. 2001) (prevailing-party costs and fee considerations)
- Anchondo v. Anderson, Crenshaw & Assocs., 616 F.3d 1098 (10th Cir. 2010) (costs and attorney’s fees in FDCPA action; prevailing party concepts)
- Rouse v. Law Offices of Rory Clark, 603 F.3d 699 (9th Cir. 2010) (prevailing-defendant costs under FDCPA require bad-faith finding (dissent cited))
- Emanuel v. American Credit Exch., 870 F.2d 805 (2d Cir. 1989) (costs/attorney’s fees in FDCPA context (dicta))