512 F. App'x 643
8th Cir.2013Background
- Pace sued Portfolio alleging FDCPA violations, including §1692c(c) for continuing calls after a cease-desist, and Portfolio moved for summary judgment arguing no receipt of the letter and lack of proof by Pace.
- District court granted summary judgment for Portfolio, finding Pace failed to prove Portfolio received the cease-desist letter.
- Pace kept call logs (oral to counsel) but never produced written logs or responsive documents, stating he had none.
- Portfolio affidavit stated it had no record of receiving any correspondence from Pace.
- Pace could not recall the cease-desist letter’s contents or mailing date, and there is no evidence of continued calls after the cease-desist letter in the record.
- On appeal, the panel affirmed, holding Pace failed to show Portfolio continued communications after the cease-desist letter, so no §1692c(c) violation could be proven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proof of mailing/receipt is required to prove a §1692c(c) violation | Pace argues proof of mailing/receipt is required | Portfolio contends no such evidence suffices to defeat summary judgment | Not necessary to decide; the claim fails for lack of evidence of continued contact |
| Whether Pace created a genuine issue of material fact that Portfolio continued contacting after the cease-desist | Pace claims continued calls after letter | Portfolio lacked any record of receipt or ongoing calls after letter | No genuine issue; district court was correct to grant summary judgment |
Key Cases Cited
- Conseco Life Ins. Co. v. Williams, 620 F.3d 902 (8th Cir. 2010) (conceptual framework for revisiting proof at summary judgment)
- Johnson v. AT&T Corp., 422 F.3d 756 (8th Cir. 2005) (summary judgment standard and de novo review)
- Thomas v. Union Pac. R.R. Co., 308 F.3d 891 (8th Cir. 2002) (summary judgment standard governing material facts)