                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       February 3, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
GERRI FOUTS,

             Plaintiff - Appellant,

v.                                                        No. 14-4046
                                                  (D.C. No. 2:13-CV-00061-DB)
EXPRESS RECOVERY SERVICES,                                  (D. Utah)
INC.,

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before HARTZ, McKAY, and McHUGH, Circuit Judges.


      Gerri Fouts appeals from the district court’s order granting defendant’s motion

for summary judgment and denying her cross-motion for partial summary judgment

on her claims alleging violations of the Fair Debt Collections Practices Act

(FDCPA), 15 U.S.C. §§ 1692-1692p. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm.


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    I. Background

      From 2011 through 2012, defendant Express Recovery Services (“Express”)

was assigned to collect a number of unpaid medical accounts for services provided to

Douglas Fouts by the University of Utah. Mr. Fouts is not a party to these

proceedings. Ms. Fouts testified at her deposition that she has been divorced from

Mr. Fouts since 1995, but she shares a residence with him and assists him by paying

his bills with money that he puts into a Wal-Mart debit card account. She further

testified that she told Express she was still married to Mr. Fouts because otherwise its

representatives would not deal with her.

      Jordan Davis, a representative with Express, spoke with Ms. Fouts on the

phone on two occasions on January 26, 2012 regarding a $75 debt that Mr. Fouts

owed to the University of Utah. Ms. Fouts paid the debt with the Wal-Mart debit

card at the conclusion of the second phone call.

      In June 2013, Ms. Fouts filed a complaint alleging that Express took multiple

actions during the prior year in an attempt to collect a debt and that Express’s

conduct violated the FDCPA.1 Both parties filed motions for summary judgment.

The district court heard oral argument on the motions and then entered an order

granting Express’s motion and denying Ms. Fouts’s motion. In its order, the court

adopted the analysis set forth in Express’s motion, finding that “no jury could


1
      Express also had phone conversations with Ms. Fouts on April 3, and June 1,
2012. Those phone calls are not relevant to the issues on appeal.


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reasonably conclude that the behavior of the defendant was abusive, false or

misleading, or otherwise in violation of the law.” Aplt. App. at 197. This appeal

followed.

                                    II. Discussion

      “We review the district court’s grant of summary judgment de novo, applying

the same legal standards as the district court.” James v. Wadas, 724 F.3d 1312, 1315

(10th Cir. 2013). Summary judgment is appropriate “if the movant shows that 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).

      Ms. Fouts asserts that the district court erred in granting summary judgment in

favor of Express on her claims that Express’s conduct violated 15 U.S.C.

§§ 1692e(2)(A), 1692e(5), and 1692g(b). Ms. Fouts also challenges whether Express

established all of the elements of the “bona fide error” affirmative defense. Aplt. Br.

at 23. Express argued this affirmative defense as an alternative basis for granting

summary judgment in its favor. The district court found, however, that no reasonable

jury could conclude that Express violated the FDCPA. Under these circumstances,

we need not address Express’s alternative argument regarding its entitlement to an

affirmative defense.

                                           A.

      We first address the claims that are not properly before us in this appeal due to

being withdrawn, waived or forfeited. In paragraph 9 of her amended complaint,


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Ms. Fouts alleged that Express violated § 1692e(2)(A) by attempting to collect a debt

from her that belonged solely to her ex-husband. But in her response to Express’s

motion for summary judgment, Ms. Fouts withdrew that claim, explaining that she

“believes she is divorced from Mr. Fouts, but cannot locate the divorce paperwork

and cannot prove that she was divorced.” Aplt. App. at 160. This withdrawn claim

is not before us in this appeal.

       In paragraph 10 of her amended complaint, Ms. Fouts alleged that Express

violated §§ 1692e(2)(A) and (5) when it “threatened to send the case to an attorney

immediately that day at the end of a heated conversation, but Defendant did not do

so.” Aplt. App. at 8. In paragraph 11 of her amended complaint, Ms. Fouts alleged

that Express violated 15 U.S.C. § 1692e(10) by “falsely stating that Plaintiff needs to

work with Defendant because Defendant’s attorney would not be willing to work

with Plaintiff.” Aplt. App. at 8. Express asserted in its motion for summary

judgment that neither of these alleged statements appear in the transcripts of the

phone calls between Ms. Fouts and Express. Ms. Fouts has not raised any argument

with respect to these claims in her briefing on appeal; we therefore consider these

issues waived. See Wyoming v. Livingston, 443 F.3d 1211, 1216-17 (10th Cir. 2006).

       For the first time on appeal, Ms. Fouts asserts that Express violated

§ 1692e(2)(A) when Mr. Davis stated, in response to Ms. Fouts’s insistence that she

does not pay collection agencies, “Well, you’re going to have to or else you’ll be

paying our attorneys.” Aplt. Br. at 13 (internal quotation marks omitted). This


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allegation does not appear in Ms. Fouts’s amended complaint, see Aplt. App. at 6-9,

her motion for summary judgment, see id. at 137-43, or her response to summary

judgment, see id. at 152-65. If a theory is not raised before the district court, we

usually hold it forfeited. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28

(10th Cir. 2011). We may review forfeited claims for plain error, but only when the

appellant shows how the new legal theory satisfies that standard. See id. at 1130-31.

Ms. Fouts does not attempt to do so in this case, which “marks the end of the road for

an argument for reversal not first presented to the district court.” Id. at 1131.

                                           B.

      We now turn to the claims that are properly before us. It is a violation of the

FDCPA for a debt collector to falsely represent “the character, amount, or legal status

of any debt,” 15 U.S.C. § 1692e(2)(A), and to “threat[en] to take any action that

cannot legally be taken or that is not intended to be taken,” id. § 1692e(5). Although

the debt at issue belonged to Mr. Fouts, “[u]nlike other sections of the act where

relief is limited to ‘consumers’, under § 1692e a debt collection practice need not

offend the alleged debtor before there is a violation of the provision,” Wright v. Fin.

Serv. of Norwalk, Inc., 22 F.3d 647, 649 (6th Cir. 1994) (en banc) (footnote omitted).

The FDCPA also states that, “[e]xcept as otherwise provided by this section, any debt

collector who fails to comply with any provision of this subchapter with respect to

any person is liable to such person . . . .” 15 U.S.C. § 1692k(a) (emphasis added).

“Consequently, absent a limitation in the substantive provisions, the ordinary and


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common understanding of § 1692k is that any aggrieved party may bring an action

under § 1692e.” Wright, 22 F.3d at 649-50.

      Ms. Fouts first alleges that Express violated § 1692e(2)(A) and e(5) by

threatening garnishment without having a judgment. The alleged garnishment threat

took place during Jordan Davis’s second phone call with Ms. Fouts on January 26,

2012. They were discussing Mr. Fouts’s $75 debt and the following exchange

occurred:

      JORDAN: . . . . Well, are you able to pay it today or would you need to
      wait a little bit?

      MS. FOUTS: No, we could pay it today, but I won’t pay through any
      collection agencies. And hey, believe me, attorneys don’t scare us.
      We’ve had people come after us and stuff. We have nothing that they
      can take.

      JORDAN: Okay.

      MS. FOUTS: They could come over here and take our trailer. There’s
      no water. There’s no hot water heater. There’s nothing, so –

      JORDAN: Well, the way they do it here is they would just garnish his
      paycheck?

      MS. FOUTS: Ha, that won’t help either because, believe me, what is it,
      not Mesquite, the Moccasin court has that.

      JORDAN: Okay. Well, I mean, I’m not trying to threaten you in any
      way. I’m just telling you how they go about it here.

Aplt. App. at 108.

      We agree with Express that this exchange does not demonstrate that it

misrepresented the legal status of the debt nor does it demonstrate that Express was


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threatening garnishment without first obtaining a judgment. At the beginning of the

exchange, Mr. Davis indicates that Ms. Fouts can pay the debt today or can have

more time if she needs it. The context of the exchange is cordial and there is no

threat that if Ms. Fouts does not pay the debt immediately, then Express will begin

garnishment procedures against her or Mr. Fouts.

      After Ms. Fouts starts to offer unsolicited commentary on how she doesn’t pay

collection agencies, she’s not afraid of attorneys, and they can come and try to take

her stuff because she doesn’t have anything to take, Mr. Davis interrupts her to

correct her misconception. He explains that Express’s collection process does not

involve repossessing property but instead involves garnishing wages. Even the “least

sophisticated consumer,” see Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.

1993), would understand that Mr. Davis was not threatening to garnish Mr. Fouts’s

wages at that time. Because Mr. Davis was generally explaining the process, he did

not need to go through the details of Express’s garnishment procedures, which would

include obtaining a judgment beforehand, see Aplt. App. at 43 para. 20. He therefore

did not misrepresent the legal status of the debt. The district court was correct to

grant summary judgment in favor of Express on Ms. Fouts’s FDCPA claims arising

out of the alleged garnishment threat.

      Ms. Fouts next alleges that Express violated §§ 1692e(2)(A) and (5) when

Mr. Davis stated in his first phone call with Ms. Fouts that he would forward her

account to an attorney at the end of the month. Ms. Fouts does not adequately


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explain how this statement misrepresents the “character, amount or legal status of

any debt,” § 1692e(2)(A). Ms. Fouts does not present any evidence or legal citation

to demonstrate that Express was not legally permitted to forward the account to an

attorney at the end of the month. Ms. Fouts argues that this statement is false

because Mr. Davis did not know whether Express’s attorney would take the account.

But Mr. Davis never represents whether the attorney will or will not take the case; he

simply states that he will forward the account to an attorney. Ms. Fouts has not

shown that this statement violates § 1692e(2)(A).

      As for her § 1692e(5) argument, Ms. Fouts contends that Express falsely

threatened to send the account to an attorney at the end of the month when it did not

intend to do so. She argues that Express has a policy to wait thirty days before

forwarding an account to an attorney and the thirty-day period would not have

expired on that account as of the end of January. Express does have a general policy

of not referring accounts to an attorney prior to the expiration of the thirty-day

period, but it also has exceptions to that policy when it is attempting to collect

multiple accounts, which was the case with Mr. Fouts and the University of Utah.

See Aplt. App. at 42-44 (Declaration of Michelle Camp, Express’s Corporate

Representative); id. at 191-92 (Declaration of Jordan Davis). Express also allows

individual collectors to make the decision on whether to transfer an account to an

attorney. See id. at 149 (Deposition of Ms. Camp). Mr. Davis, the collector on the

account at issue, stated in his phone call with Ms. Fouts that he would forward the


                                          -8-
account at the end of the month if she did not make a payment, see id. at 100, and he

testified in his declaration that it was his intent to do so, see id. at 191. Although

Ms. Fouts argues that “[i]t is clear that Defendant never intended to refer any of the

accounts to an attorney at the end of January,” Aplt. Br. at 12, she has not come

forward with evidence to refute the statements made by Mr. Davis and Ms. Camp to

the contrary.

      Finally, Ms. Fouts asserts that Mr. Davis’s statement that he would forward the

account to an attorney at the end of the month overshadowed her right to dispute the

debt within the thirty-day dispute period in violation of § 1692g(b). The protections

in § 1692g apply to “consumers” only, which Ms. Fouts acknowledged in her

response to summary judgment, see Aplt. App. at 152 (“Plaintiff does have to be a

consumer to bring a claim under 15 USC 1692g(b) because 1692g limits that section

as applying only to consumers.”). A “‘consumer’ means any natural person obligated

or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3). Douglas Fouts is the

consumer with respect to the $75 debt at issue because the account was for medical

services provided to him by the University of Utah.

      Express argues that the district court properly granted summary judgment on

Ms. Fouts’s § 1692g claim because she is not a consumer, the account was not her

debt, and she does not have standing to argue overshadowing. We agree.

      Although Ms. Fouts argues in her reply brief that Express is raising this

argument for the first time on appeal, see Reply Br. at 1, that characterization is not


                                           -9-
accurate as Express made this same argument in response to Ms. Fouts’s motion for

summary judgment, see Aplt. App. at 173-74, and in its reply in support of its motion

for summary judgment, see id. at 186-87. Ms. Fouts had the opportunity to respond

to this argument in her reply in support of her motion for summary judgment but did

not do so. See id. at 193-95.

      Ms. Fouts admitted in response to summary judgment that the medical account

discussed in the two phone calls on January 26, 2012 was for Douglas Fouts from the

University of Utah. She alleged in her complaint that she and Mr. Fouts were

divorced in 1995, and she testified to the same in her deposition. She further

admitted in response to Express’s motion for summary judgment that she is the

ex-wife of Douglas Fouts. Ms. Fouts is not a consumer under these circumstances

because the debt is for services rendered to Douglas Fouts, she is not married to

Mr. Fouts, and she is not obligated to pay the debt.

      In her reply brief, Ms. Fouts attempts to argue that she is a “consumer” for the

purposes of § 1692g because “it is not known whether Plaintiff was actually divorced

from Douglas Fouts.” Reply Br. at 1. Although she made this same assertion in her

response to summary judgment on a different claim, she did not submit an affidavit

testifying to this fact such that it could be considered in evidence for the purposes of

summary judgment. See Fed. R. Civ. P. 56(c)(1), (e)(3).

      She further asserts that Express alleged that she was obligated to pay the debt

throughout her conversations with them. She contends that this “is all that is required


                                         - 10 -
by 15 USC 1692a(3) to make [her] a ‘consumer’,” Reply Br. at 1, but she does not

provide any legal authority to support her interpretation. Moreover, the only reason

that Express was speaking to Ms. Fouts about Douglas Fouts’s debt was because she

lied to them and said she was still married to Mr. Fouts. She cannot misrepresent her

marital status to induce Express to speak to her about Mr. Fouts’s debt and then seek

to bring claims under the FDCPA by asserting that she is a consumer because

Express alleged that she was obligated to pay the debt.

                                   III. Conclusion

      For the foregoing reasons, the judgment of the district court is affirmed.


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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