                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-1873


ROBERT C. SMITH,

                Plaintiff - Appellant,

          v.

EVB, a Virginia Corporation,

                Defendant – Appellee,

          and

ARCHIE C. BERKELEY, JR.,

                Defendant.



                             No. 11-1081


ROBERT C. SMITH,

                Plaintiff - Appellant,

          v.

EVB, a Virginia Corporation; ARCHIE C. BERKELEY, JR.,

                Defendants - Appellees.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:09-cv-00554-JRS)
Submitted:   June 29, 2011                Decided:   July 12, 2011


Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Robert C. Smith, Appellant Pro Se. Samuel Miles Dumville, Stacy
Leann Haney, Alison Ross Wickizer Toepp, REED SMITH, LLP;
Michele Mulligan, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In   these      consolidated       appeals,      Robert     Smith    appeals

the   district     court’s        grant   of   summary      judgment      in   favor    of

Archie C. Berkeley and EVB as well as the court’s award of

$22,235.90 in attorneys’ fees.                 For the reasons that follow, we

vacate the judgment of the district court and remand.

            In     2004,    Robert    Smith     obtained      a    credit      loan    (the

“2004 loan”) from the Bank of Goochland (“BOG”) through Piedmont

Construction, LLC (“Piedmont”) a company owned by Smith.                                The

loan had an initial principal balance of $210,000 and a maturity

date of June 30, 2005.             Between 2004 and 2006, Smith renewed the

loan three times, and each time submitted a disbursement request

and authorization (“DRA”) form.                  On each DRA form, a box was

checked    indicating       that    the   primary    purpose       of   the     loan   was

“Business (Including Real Estate Investment).”                          Smith argues,

however,    that    he     made    contemporaneous       representations          to    BOG

officers that the loan was for personal purposes only.

            According to Smith, the purpose of the 2004 loan was

the purchase and ownership of Smith’s personal residence (“the

Wilton House”).       Smith contends that he created Piedmont for the

sole purpose of obtaining the loan and owning the property (“the

Wilton Plat”) on which the Wilton House sat.                       Although the 2004

loan was made to Piedmont, it was secured by an interest in

Smith’s    residence.         According        to   Smith    and    his     accountant,

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Piedmont has never conducted any other commercial activity and

its sole function was to hold the property Smith used as his

residence.

            In 2006, Smith personally obtained a second loan (the

“2006 loan”) from BOG for $250,000.                      The DRA accompanying this

loan    stated    that    it   was       primarily      for   personal,     family,    or

household purposes.         Smith used $200,000 of the 2006 loan to pay

off the balance of the 2004 loan.                      It is undisputed that Smith

has    always    represented      that      the    2006      loan   was   for   personal

purposes.

            In 2008, BOG assigned the 2006 loan to EVB.                         EVB and

its    substitute      trustee,      Archie       Berkeley,     claimed    that      Smith

defaulted on his obligations under the note and Smith claims

that EVB and Berkeley threatened foreclosure of the Wilton Plat.

Smith brought a complaint against EVB and Berkeley under the

Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-

1692p (2006).       He claimed in his complaint that EVB and Berkeley

failed to provide Smith with a copy of the assignment agreement,

made    threatening      phone    calls,         and    intentionally     published      a

foreclosure notice that they knew to be based on false financial

information.

             Berkeley      answered         the        complaint.         Rather      than

answering,       EVB     joined      a    motion        to    dismiss,    or    in     the

alternative, for summary judgment, filed by Berkeley.                           EVB and

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Berkeley’s main contention in support of dismissal or summary

judgment was that the 2006 loan was not a “debt” within the

meaning of the FDCPA.         In response, Smith moved for leave to

file an amended complaint.         The district court granted leave to

amend with respect to the complaint against EVB only because

Smith could, as a matter of right, amend his complaint at any

time before a responsive pleading was filed.               The court granted

summary judgment in favor of Berkeley and denied leave to amend

on the grounds that amendment would be futile.

            The district court based its decision to award summary

judgment in favor of Berkeley on two conclusions: that Smith was

estopped from arguing that the 2004 loan was a personal debt,

and that because the 2006 loan paid off the 2004 loan, it too

was a business debt.         EVB answered the amended complaint and

moved for summary judgment, and Smith moved, pursuant to Fed. R.

Civ.   P.   59(e),   to   alter   or   amend    the    judgment     in   favor    of

Berkeley.

            The   district   court     denied    the    Rule   59    motion      and

granted summary judgment in favor of EVB.               The court ruled that

Smith’s amended complaint and opposition to summary judgment had

failed to change the court’s ruling as it was applied in its

grant of summary judgment in favor of Berkeley.                The court also

ruled that Smith had failed to put forth a proper reason for

Rule 59 amendment, and denied the motion.

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             The court ultimately awarded attorneys’ fees to EVB

and Berkeley totaling over $22,000.              The court concluded that

any filings (including opposition to summary judgment and the

Rule   59   motion)     that    were   made   after   the    initial    grant    of

summary     judgment    to     Berkeley   were   frivolous     and     Smith,    an

attorney, should have known to cease.            Smith has timely appealed

the orders granting summary judgment and the fee order.

             We review de novo a district court’s order granting

summary judgment and view the facts in the light most favorable

to the nonmoving party.           Rowzie v. Allstate Ins. Co., 556 F.3d

165, 167 (4th Cir. 2009).          Summary judgment is appropriate when

no genuine issue of material fact exists and the moving party

“is entitled to judgment as a matter of law.”                 Fed. R. Civ. P.

56(a).      Summary judgment will be granted unless “a reasonable

jury could return a verdict for the nonmoving party” on the

evidence presented.          Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).

             The purpose of the FDCPA is “to protect consumers from

unfair    debt    collection    practices.”      Mabe   v.    G.C.   Svcs.      Ltd.

P’ship, 32 F.3d 86, 87 (4th Cir. 1994). Thus, in order for the

FDCPA to apply, the regulated practices must be used to collect

a “debt.”        Id.   The FDCPA defines “debt” as “any obligation or

alleged obligation of a consumer to pay money arising out of a

transaction in which the money, property, insurance, or services

                                          6
which    are    the       subject      of     the       transaction        are    primarily     for

personal,       family,          or        household       purposes[.]”              15     U.S.C.

§ 1692a(5); Perk v. Worden, 475 F. Supp. 2d 565, 568 (E.D. Va.

2007).     As we have noted, the case law interpreting this section

of the FDCPA is “sparse.”                   Mabe, 32 F.3d at 88.

               When interpreting the definition of “debt” under the

FDCPA, some courts have looked to analogous provisions of the

Consumer Credit Protection Act, 15 U.S.C. §§ 1601-1693r (2006).

See     Bloom        v.       I.C.     Sys.,        Inc.,         972      F.2d     1067,      1068

(9th Cir. 1992).                When classifying a loan under the Truth in

Lending     Act,          for    example,          courts        typically        “examine      the

transaction         as    a     whole,      paying       particular        attention      to   the

purpose for which the credit was extended in order to determine

whether the transaction was primarily consumer or commercial in

nature.”            Id.         Courts      have        “looked       to   the    substance      of

transactions to determine whether they fall under the ambit of

consumer protection statutes [such as the FDCPA]”                                  Perk, 475 F.

Supp. 2d at 569.

               Here, we do not address Smith’s contentions that the

district       court      erred       in    allowing       EVB       and   Berkeley    to    argue

estoppel       and    that       the       court    erred       in    estopping     Smith      from

arguing that the 2004 loan was a personal transaction.                                    Rather,

we conclude that even if the court acted properly in employing

estoppel       to    determine         that    the       2004     loan     was    commercial     in

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nature, the court erred in concluding that the 2006 loan was

similarly commercial.

           In this case, the district court itself noted that the

FDCPA is concerned “with the substance of the transaction as

opposed   to    the   form.”      The   “substance”    of    the    2006    loan,

however, was clearly personal in nature.             Even assuming that the

2004 loan was commercial, Smith took the 2006 loan out in his

own name with the purpose of paying off the 2004 loan.                      As a

practical matter, the 2006 loan allowed Smith to transfer the

mortgage on his home from Piedmont to himself.                 Indeed, Smith

represented to BOG in 2006 that the loan was for personal use,

and the record is uncontroverted that the loan had a entirely

personal purpose — essentially taking over the debt on Smith’s

home.

           On   appeal,     EVB   repeatedly   emphasizes     that    the    2004

loan was a business transaction.            This argument misses the mark

by ignoring the purposes of the 2006 loan.             Although related to

a   purported    business      transaction,    the    2006   loan    concerned

Smith’s personal finances, his personal residence, and was taken

out in his own name.      In other words, it was a personal loan.

           We therefore vacate the district court’s judgment with

respect to the underlying merits and remand.                 Because the fee

order that is being appealed is based on the now-vacated grant

of summary judgment, we vacate that order without prejudice to a

                                        8
motion   for   fees   at    the   conclusion   of    the   district   court

proceedings on remand.       We dispense with oral arguments because

the facts and legal contentions are adequately presented in the

materials   before    the   court   and   argument   would   not   aid   the

decisional process.

                                                     VACATED AND REMANDED




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