United States District Court, S.D. Indiana, Indianapolis Division
MARK A. PATTERSON, Plaintiff,
HOWARD HOWE, Defendant.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
McVicker Lynch, United States Magistrate Judge
case challenges as a violation of the Fair Debt Collection
Practices Act a practice the defendant Mr. Howe (an attorney)
uses in debt collection cases he files on behalf of
creditor-clients in Indiana state court-or at least did in
this case.Mr. Howe serves with the summons and
complaint a document titled “Requests to Admit, ”
consisting of four statements to which his client seeks
responses under Rule 36 of the Indiana Rules of Trial
Procedure. This document does not advise of the consequences
of failure to serve timely denials. Plaintiff Mark A.
Patterson seeks relief for himself and on behalf of a class.
Before the court are cross-motions for summary judgment on
Mr. Patterson's individual claims. The parties seek
resolution on summary judgment of the liability issues
presented before addressing any class certification issues,
and the court agrees that, under the circumstances here, it
is appropriate to do so.
explained below, the court determines plaintiff Mark A.
Patterson is entitled to summary judgment on his claim that
Mr. Howe's use and service of requests for admission in
the manner he followed when he sued Mr. Patterson in state
court violated the FDCPA. Other matters remain to be decided in
this case, including the appropriateness of certifying a
class, damages, and attorneys' fees. Plaintiff Mark
Patterson's motion for summary judgment (Dkt. 25) is
GRANTED. Defendant Howard Howe's motion for summary
judgment (Dkt. 22) is DENIED.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Substantive law determines the facts that are material.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here, the parties
agree that the material facts are not disputed and that the
court can decide as a matter of law whether Mr. Howe violated
Undisputed Material Facts
on the parties' submissions, the court considers the
following undisputed facts. Additional undisputed facts
pertinent to the resolution of particular legal issues are
discussed in the sections that follow.
10, 2016, defendant Howard Howe filed a lawsuit on behalf of
his client, Indiana Institute of Technology, against Mark A.
Patterson, seeking to collect a debt Mr. Patterson allegedly
owed to Indiana Institute of Technology (“IIT”)
for tuition or fees. Attorney Howe was acting as a debt
collector within the meaning of the FDCPA, and Mr.
Patterson's alleged debt was a consumer debt, the
collection of which is governed by the FDCPA. Mr. Howe
arranged for service by a local sheriff's office on Mr.
Patterson of a summons, the complaint, and a document titled
“Requests to Admit.” Mr. Patterson was served
with these documents on May 12, 2016. The Requests to Admit
document reads in pertinent part as follows:
the documents served on Mr. Patterson explained the
consequence, set forth in Indiana Trial Rule 36(A), that
requests not denied within 30 days would be deemed admitted.
Patterson did file an answer to the complaint against him,
he did not serve an answer to the Requests to Admit.
debt collection lawsuit, a mediator was appointed by the
court, and the parties settled the case. On April 17, 2017,
they filed an Agreement of Settlement in which Mr. Patterson
agreed to the entry of judgment against him for $7, 500.00
plus costs of $181.00, to be paid in installments, in
exchange for IIT's promise to release his transcript on
request. See Dkt. 23 at p. 9. The parties have
designated no facts about whether the Requests to Admit had
any effect on the disposition of the lawsuit.
The Claims in this Lawsuit
Patterson filed his complaint on December 14, 2016. He
alleges that Mr. Howe's service of the Requests to Admit
violated the FDCPA's proscription against the use of
deceptive or misleading representations or means (15 U.S.C.
§ 1692e) or of unfair or unconscionable means (15 U.S.C.
§ 1692f) in the collection of a debt. He relies in
particular on the fact that Mr. Howe's communications did
not inform him of the consequences under Indiana law of
failing to respond to the Requests to Admit within the 30
days requested in these particular Requests to Admit. Under
Indiana Rule of Trial Procedure 36 (which is modeled on
Fed.R.Civ.P. 36), a party may serve a written request for the
admission of any matters within the scope of discovery and
each matter “is admitted unless, within a period
designated in the request, not less than thirty days after
service . . ., the party to whom the request is directed
serves upon the party requesting the admission a written
answer or objection addressed to the matter, signed by the
party or by his attorney.” A matter that is admitted
“is conclusively established unless the court on motion
permits withdrawal or amendment of the admission.”
See Dkt. 23 at p. 12.
purposes of the Fair Debt Collection Practices Act are
“to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not
competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection
abuses.” 15 U.S.C. § 1692(e) (quoted in
Pantoja v. Portfolio Recovery Assoc., LLC, 852 F.3d
679, 683 (7th Cir. 2017)). To those ends, the
FDCPA prohibits the use of any “false, deceptive, or
misleading representation or means in connection with the
collection of any debt” and the use of “unfair or
unconscionable means to collect . . . any debt.” 15
U.S.C. §§ 1692e and 1692f.
Patterson maintains that he is entitled to judgment as a
matter of law that Mr. Howe's communications served on
him violated these provisions of the FDCPA. In particular, he
maintains (1) that the requests were at bottom requests to
admit “you win and I lose” and exceeded the scope
of a proper request under Indiana Trial Rule 36; and (2) that
an unsophisticated debtor would not know the consequences of
a failure to deny in a timely manner, a problem exacerbated
by the fact that the requests were served with the summons
Howe has advanced a number of arguments why judgment as a
matter of law should be entered in his favor. Some of those
arguments overlap and some are barely developed, but they are
summarized here. First, he argues that Indiana Trial Rule
36 authorized his service of the requests for admission with
the complaint and summons, so his doing so couldn't have
violated the FDCPA. Relatedly, he contends that he had no
obligation under the FDCPA to give Mr. Patterson legal advice
by explaining in his communications the consequences of a
failure to serve timely responses to the request for
admissions. Second, he says that the preclusive effect of
deemed admissions never applied here because he had not
served the requests in an electronic format as provided by
Indiana Trial Rule 26(A.1). Third, Mr. Howe argues that Mr.
Patterson has designated no evidence that an unsophisticated
debtor would have found the communications misleading or
deceptive. Fourth, he argues that Mr. Patterson has no
evidence of injury, rendering his claims insufficient under
Spokeo. Finally, he asserts that the claims are
barred by the Rooker-Feldman doctrine.
course of its discussion below, the court will address to the
extent necessary all the arguments of the parties, though not
necessarily in the order they were made.
Use of a discovery device authorized by the Indiana Trial
Rules does not immunize Mr. Howe from liability under the
FDCPA regardless of the surrounding circumstances.
Howe's principal argument, whether asserted under the
label of due process (Dkt. 29 at p. 3), federalism (Dkt. 23
at p. 3), professional responsibility (id.), or an
“attack on Rule 36” (Dkt. 29 at p.5), is that
service of requests for admission with the summons and
complaint is permitted by the law (in particular, Indiana
Trial Rule 36) and thus could never violate the FDCPA. Mr.
Howe cites no authority for that argument. And indeed, that
argument cannot be squared with Supreme Court and Seventh
Circuit precedent. The core of his argument is that in
litigating against Mr. Patterson, he used means expressly
authorized by the Indiana Trial Rules, in this case, a
discovery device authorized by a trial rule. But the law is
clear that the use of litigation tools-whether in issuing
pleadings, filings, or discovery-can violate the FDCPA, even
though those tools are specifically authorized by the trial
Seventh Circuit, along with many other courts, has made clear
that the litigation activities of lawyers-which are grounded
in state rules of procedure-can violate the FDCPA. In
Marquez v. Weinstein, Pinson & Riley,
P.S., 836 F.3d 808, 810-11 (7th Cir.
2016), the Seventh Circuit expressly held that the FDCPA
covers the process of litigation and that pleadings
or filings can fall within the FDCPA. In doing so, our court
of appeals cited the Supreme Court's decision in