                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-1933


HAROLD BOOSAHDA,

                Plaintiff – Appellant,

           v.

PROVIDENCE DANE LLC,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Ivan D. Davis, Magistrate
Judge. (1:09-cv-00556-IDD)


Argued:   December 8, 2011                 Decided:   January 31, 2012


Before WILKINSON, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ernest Francis, Arlington, Virginia, for Appellant.     David
Benjamin Ashe, PROVIDENCE DANE LLC, Virginia Beach, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Harold    Boosahda        appeals    the     district       court’s     award    of

summary judgment to Providence Dane LLC (“Providence”), on his

claims brought under the Fair Debt Collection Practices Act (the

“FDCPA”), 15 U.S.C. § 1692, et seq.                  See Boosahda v. Providence

Dane, LLC, No. 1:09-cv-00556 (E.D. Va. July 9, 2010).                           Boosahda

also appeals the court’s denial of his motion to strike certain

of   Providence’s       affirmative        defenses.        Because,      as   explained

below, we affirm the summary judgment on grounds unrelated to

Providence’s         affirmative    defenses,        we     need    not   address      the

propriety of the motion to strike.



                                            I.

       On or about May 16, 2008, Providence sued Boosahda in the

Circuit Court for Fairfax County, Virginia, seeking to collect

more    than    $22,000    owed     on   credit     card     accounts     assigned     to

Providence      by    Chase   Manhattan      Bank    USA,     N.A.    (“Chase”),       and

First    USA    Bank,     N.A.    (“First       USA”).       Boosahda     countersued,

asserting violations of the Truth in Lending Act (“TILA”), 15

U.S.C. § 1601, et seq., and alleging that Chase and First USA

had failed      to     provide    him    with     certain    disclosures       when    the

credit card accounts were opened.                    At trial in state court,

Boosahda testified that he could not recall having credit card

accounts with Chase or First USA and did not remember whether he

                                            2
had used Chase or First USA credit cards to make purchases.

Providence’s         counsel      attempted    to   introduce       into   evidence,

through the testimony of a Providence paralegal, credit card

account billing statements bearing Boosahda’s name and address.

The paralegal explained that she had obtained the statements

from Chase and First USA.               The trial court, however, struck the

evidence as hearsay and entered judgment of dismissal in favor

of Boosahda, effectively relieving him of any legal obligations

to repay the debt owed on the Chase and First USA credit cards.

As to Boosahda’s countersuit, the jury returned a verdict in

favor        of   Providence,     and   the    trial    court   entered      judgment

thereon.

        On    May   15,   2009,    Boosahda    commenced     this   action    in   the

Eastern District of Virginia. 1                Boosahda alleged myriad FDCPA

violations        arising   from    Providence’s       unsuccessful    state    court

suit against him, seeking $50,000 in damages plus attorney’s

fees.        After the district court denied Providence’s motion to

dismiss, Providence answered the complaint and interposed seven

affirmative         defenses.      Boosahda    moved    to   strike   four    of   the



        1
        The parties consented in the district court to the
jurisdiction of a magistrate judge for all purposes. In issuing
his decisions, the magistrate judge was acting for the court,
and we therefore refer to those decisions as those of the
district court. See 28 U.S.C. § 636(c)(1).



                                           3
affirmative defenses as insufficiently pleaded. 2               On February 26,

2010,    the   district   court   conducted     a    hearing    and   entered   an

order denying the motion to strike without prejudice.                  Discovery

then ensued.      In being deposed, Boosahda stated repeatedly that

he could not recall obtaining credit cards from either Chase or

First USA, and he did not remember using any such cards to make

purchases.

     Providence     thereafter    moved   for       summary    judgment    on   the

ground that Boosahda could not establish that the debt due on

the credit cards was “consumer debt” subject to the FDCPA — an

essential element of each of his claims for relief. 3                     Boosahda


     2
       The affirmative defenses that were subject to Boosahda’s
motion to strike averred that: (1) any FDCPA violations
“resulted from a bona fide error”; (2) the alleged violations
“in no way exemplifies the abusive or unfair behavior Congress
had in mind when enacting the FDCPA”; (3) “some or all of
[Boosahda’s] alleged injuries or damages resulted from the acts
or omissions of third parties”; and (4) “some or all of the
alleged violations resulted from good faith reliance by
[Providence] on representations made by third parties.”    J.A.
31-32. (Citations herein to “J.A.___” refer to the contents of
the Joint Appendix filed by the parties in this appeal.)
     3
       To establish a FDCPA claim, a plaintiff must prove that:
“(1) the plaintiff has been the object of collection activity
arising from consumer debt; (2) the defendant is a debt
collector as defined by the FDCPA; and (3) the defendant has
engaged in an act or omission prohibited by the FDCPA.” Ruggia
v. Wash. Mut., 719 F. Supp. 2d 642, 647 (E.D. Va. 2010).     The
FDCPA defines “debt,” in relevant part, 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
which are the subject of the transaction are primarily for
personal, family, or household purposes.” 15 U.S.C. § 1692a(5).
(Continued)
                                      4
opposed the summary judgment motion and filed his own cross-

motion for such relief.            In support of his opposition, Boosahda

submitted a declaration in which he avowed that he had reviewed

the Chase and First USA billing statements and concluded that

“none of the charges made to those accounts could have been for

use in any business by which [he had] been employed” and denied

that he ever “used any credit cards for any business purpose.”

See   J.A.    287-88.       During      the       district    court’s   July      9,   2010

hearing on the summary judgment motions, the parties agreed that

Providence      is    a   “debt    collector”        within    the   meaning      of   the

FDCPA.     The court also acknowledged the likelihood that genuine

issues of material fact existed concerning the acts alleged to

have been FDCPA violations.              Nevertheless, because Boosahda was

unable to carry his burden of showing that the credit card debt

was consumer debt, the court granted summary judgment in favor

of Providence.        Boosahda has timely appealed from that judgment,

and we possess jurisdiction under 28 U.S.C. § 1291.



                                           II.

      We     review    de   novo    a   district       court’s    award      of   summary

judgment,      “viewing     the    facts      and     the     reasonable     inferences



A “consumer” is “any natural person obligated                           or     allegedly
obligated to pay any debt.” Id. § 1692a(3).



                                              5
therefrom in the light most favorable to the nonmoving party.”

See Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011).              Rule

56 of the Federal Rules of Civil Procedure mandates the entry of

summary judgment if the nonmoving party “fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden

of proof at trial.”     Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).     Otherwise, “a complete failure of proof concerning an

essential    element   of   the   nonmoving    party’s   case   necessarily

renders all other facts immaterial [and][t]he moving party is

entitled to judgment as a matter of law.”           Id. at 323 (internal

quotation marks omitted).



                                    III.

     In this appeal, we are tasked solely with deciding whether

the district court erred in concluding that Boosahda failed to

show that the debt incurred on the Chase and First USA credit

cards was consumer debt — as opposed to commercial or business

debt — for FDCPA purposes. 4       Boosahda maintains that he made the

requisite showing in three ways.              First, he contends that a


     4
        As previously explained, because the district court did
not grant summary judgment on the basis of any of Providence’s
affirmative defenses, we do not address Boosahda’s motion to
strike.



                                     6
letter he received from Providence constituted an admission that

it was seeking to collect a consumer debt.                    Second, he posits

that the motion for judgment against Boosahda personally in the

state court action establishes Providence’s attempt to collect a

consumer debt.     And, third, he suggests that his declaration in

the district court established that he did not make charges on

any credit cards for business purposes.            We reject each of these

contentions in turn.

     The   FDCPA   requires   a    debt     collector    to    disclose   in   its

initial written communication with a consumer debtor that it is

“attempting to collect a debt and that any information obtained

will be used for that purpose.”             See 15 U.S.C. § 1692e(11).         The

parties stipulated in the district court that Providence sent

Boosahda a letter in March 2008 providing, in pertinent part:

“Federal law requires us to advise that this communication is an

attempt by a debt collector to collect a debt.                  Any information

obtained will be used for that purpose.”                  See J.A. 73, 290.

Boosahda seizes on the use of the word “debt” in the letter’s

disclaimer as determinative that Providence considered the debt

to be consumer debt.       He argues that a debt collector should be

estopped from denying a debt is consumer debt when it uses such

a disclaimer, relying on the Seventh Circuit’s decision in Shula

v. Lawent, 359 F.3d 489 (7th Cir. 2004).                We do not read Shula,

however,   as   standing   for    any   such    proposition.       Indeed,     the

                                        7
Seventh Circuit has more recently and explicitly explained that

the use of such a disclaimer “does not automatically trigger the

protections of the FDCPA, just as the absence of such language

does not have dispositive significance.”                    See Gburek v. Litton

Loan Serv. LP, 614 F.3d 380, 386 n.3 (7th Cir. 2010).                     We agree.

      The FDCPA defines consumer debt, not a debt collector’s

disclaimer.         Moreover, if the use of the statutorily required

disclaimer     is    sufficient      to   establish        an    FDCPA   claim,   debt

collectors will be placed in a conundrum, exposed to liability

for both including the disclaimer and for omitting it.                             Cf.

Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 399-400 (6th

Cir. 1998) (“[t]o punish [debt collector] for compliance with

[§ 1692e(11)]        [by    disclosing]        that   it   is    an   ‘attempt[]    to

collect on a debt’ would be an absurd result that we decline to

reach.”); Wade v. Reg’l Credit Ass’n, 87 F.3d 1098, 1100 (9th

Cir. 1996) (finding no FDCPA violation based on “informational”

disclaimer and noting that debt collector “would have violated

the Act had it not included this statement”).                         Put simply, a

debt collector should not be penalized for taking the precaution

of    including       the     disclaimer        within     its     initial   written

communication to the debtor, in the event the debt is subject to

the   FDCPA.         In     any   case,   Providence’s          disclaimer   is    not

sufficient to satisfy Boosahda’s burden of showing the credit

card debt was consumer debt.              See Golliday v. Chase Home Fin.,

                                           8
LLC, 761 F. Supp. 2d 629, 636 (W.D. Mich. 2011) (concluding

plaintiff’s     reliance         on    disclaimer         insufficient      to     defeat

summary     judgment     as      to    firm’s      debt     collector     status      and

observing that firm should not be faulted when it “errs on the

side of caution” by including disclaimer).

      Similarly, Providence’s motion for judgment in the state

court action does not constitute evidence that the debt incurred

on   the   Chase   and    First       USA    credit   cards    was   consumer       debt.

Boosahda makes much of the fact that the state court action was

initiated against him in his personal capacity.                      As the district

court pointed out, however, that fact is not dispositive because

a person can be sued in his or her individual capacity even for

business debts.        Indeed, the district court examined the billing

statements in this case and concluded that any or all of the

purchases    could     have   been      business      expenses.       Cf.     Slenk    v.

Transworld    Sys.,      Inc.,    236       F.3d   1072,    1075   (9th     Cir.    2001)

(explaining that, in determining whether debt is consumer debt,

court should “examine the transaction as a whole” and “look to

the substance of the transaction and the borrower’s purpose in

obtaining    the     loan,    rather        than    the    form    alone”    (internal

quotation marks omitted)); Miller v. McCalla, Raymer, Padrick,

Cobb, Nichols, & Clark, LLC, 214 F.3d 872, 875 (7th Cir. 2000)

(observing that whether debt is consumer debt depends on “the



                                             9
transaction out of which the obligation to repay arose, not the

obligation itself”). 5

        Finally, we disagree with Boosahda that his declaration in

opposition to Providence’s summary judgment motion demonstrated

that the amount owed on the credit cards was consumer debt.                              The

district court properly determined that Boosahda’s statements in

that declaration conflicted with the answers he provided in his

deposition.          In    the   latter      —     as   in   his    state     court    trial

testimony — his sworn statements were tentative, i.e., he could

not recall obtaining the Chase and First USA credit cards and

did not remember making any purchases with those cards.                               Yet in

his declaration Boosahda was able to state definitively that he

never       used   those    cards      for   any   business        purpose.      Like    the

district       court,      we   deem    it   troubling       that    Boosahda     suddenly

possessed knowledge of the nature of the debt, having repeatedly

disavowed under oath knowledge of the debt itself. 6                          See Cline v.


        5
       Boosahda’s reliance on Hansen v. Ticket Track, Inc., 280
F. Supp. 2d 1196 (W.D. Wash. 2003), and the unpublished Eleventh
Circuit decision in Hepsen v. Resurgent Capital Servs., LP, 383
Fed. App’x 877 (11th Cir. 2010), is unavailing. The undisputed
facts in Hansen showed that the parties’ contract was of a
personal nature.   Likewise, in Hepsen, the court observed that
the debtor had established that his debt was consumer debt
because, inter alia, “it was not used for business” since he had
a company-issued business card to use for business expenses.
See 383 Fed. App’x at 884, n.7.
        6
       We are also concerned by any continued reliance on the
declaration since Boosahda’s counsel conceded at oral argument
(Continued)
                                              10
Wal-Mart     Stores,    Inc.,      144    F.3d    294,   301    (4th    Cir.     1998)

(reviewing denial of Rule 50(b) motion under same standard as

Rule   56    motion    and    observing     that    Court      will    “assume    that

testimony in favor of the non-moving party is credible, unless

totally      incredible      on    its    face”    (internal     quotation       marks

omitted)).      In any event, “it is well established that a genuine

issue of fact is not created where the only issue of fact is to

determine which of the two conflicting versions of a party’s

testimony is correct.”             Erwin v. United States, 591 F.3d 313,

325    n.7    (4th     Cir.       2010)   (internal      quotation       marks     and

alterations omitted).         As we have explained,

       [i]f a party who has been examined at length on
       deposition could raise an issue of fact simply by
       submitting an affidavit contradicting his own prior
       testimony, this would greatly diminish the utility of
       summary judgment as a procedure for screening out sham
       issues of fact.

Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)

(internal quotation marks omitted).                 Accordingly, the district

court accurately concluded that Boosahda had failed to carry his

burden of establishing an essential element of his FDCPA claims,




that Boosahda “cannot show what the purpose[s] of charges on
[the Chase and First USA credit cards] were.”



                                          11
that the debt incurred on the Chase and First USA credit cards

was consumer — as opposed to business or commercial — debt. 7



                              IV.

     Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                        AFFIRMED




     7
       We decline Boosahda’s invitation to consider that our
disposition of this case might render it impossible for FDCPA
plaintiffs who have been victimized by identity theft (or who
otherwise have a legitimate collection defense) to stave off
summary judgment.   This is not a case of identity theft, as
Boosahda conceded at oral argument, and we will not provide an
advisory opinion on the evidentiary showing necessary to
withstand summary judgment in such a case. Rather, we echo the
sentiments of the decision Boosahda relies on, that “the
determination of whether a debt is [a consumer debt] is a fact
driven one, and should be decided on a case-by-case . . . basis
looking at all relevant factors.”   Hansen, 280 F. Supp. 2d at
1204.



                               12
