Patricia Evankavitch v. Green Tree Servicing LLC
2015 U.S. App. LEXIS 12024
| 3rd Cir. | 2015Background
- Patricia Evankavitch fell behind on a mortgage; Green Tree Servicing, LLC obtained the loan and engaged in collection calls beginning 2011–2012.
- Green Tree called Evankavitch’s daughter Cheryl and neighbors Robert and Sally Heim seeking contact with Evankavitch; Evankavitch told Green Tree not to call Cheryl’s number.
- Green Tree made multiple calls to the Heims; Mr. Heim asked Green Tree to stop calling and said Christopher had moved to California.
- Evankavitch sued under the FDCPA, alleging unlawful third-party communications in violation of 15 U.S.C. §§ 1692c(b) and 1692b(3).
- At trial, the district court placed the burden on Green Tree to prove the § 1692b location-information exception as an affirmative defense; the jury returned a verdict for Evankavitch and the court entered judgment for statutory damages of $1,000.
- On appeal, the Third Circuit considered whether the debt collector or the consumer bears the burden to prove/disprove that third‑party communications fall within the § 1692b exception for acquiring location information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears burden to show § 1692b exception (location‑information calls)? | Evankavitch: burden on debt collector to prove exception as an affirmative defense. | Green Tree: burden should remain with plaintiff to disprove the exception as part of her prima facie case. | Burden is on the debt collector to prove the § 1692b exception (affirmative defense). |
| Whether § 1692b(3)’s “reasonably believes” standard requires plaintiff to disprove objective belief | Evankavitch: not practicable; proof of collector’s purpose/belief lies with collector. | Green Tree: objective reasonableness element supports placing burden on plaintiff. | Court rejects this; subjective purpose and collector’s records support treating exception as affirmative defense. |
| Whether district court’s in limine ruling and jury instructions were improper | Evankavitch: instructions proper because exception is affirmative defense. | Green Tree: failure to preserve issue and improper instruction entitles it to new trial. | Instructions and in limine ruling were correct; no reversible error. |
| Policy/fairness: which party has better access to evidence on intent/belief? | Evankavitch: debt collector has superior access and control of call records and intent evidence. | Green Tree: plaintiff can still prove communications occurred and call recipients’ testimony. | Court finds collector has peculiar knowledge; fairness favors placing burden on collector. |
Key Cases Cited
- Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993 (3d Cir. 2011) (FDCPA’s remedial scope and purpose to eliminate abusive debt collection practices)
- Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014) (invasion of privacy is a core concern animating the FDCPA)
- Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005) (default rule: plaintiffs bear risk of failing to prove their claims absent statutory guidance)
- FTC v. Morton Salt Co., 334 U.S. 37 (1948) (longstanding principle that party claiming an exception bears burden to prove it)
- Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008) (exceptions carved out of statutes are generally affirmative defenses borne by claimant)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (2010) (FDCPA contains explicit affirmative defenses and structure informs interpretation)
- Dixon v. United States, 548 U.S. 1 (2006) (party with peculiar knowledge of facts should bear burden of proving issue)
- Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314 (3d Cir. 2014) (practical evidentiary difficulties for plaintiffs proving absence of defendant’s records)