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

                           FOR THE TENTH CIRCUIT                          July 9, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ROBERT F. SARTORI,

             Plaintiff-Appellant,

v.                                                        No. 13-2162
                                               (D.C. No. 1:12-CV-00515-JB-LFG)
SUSAN C. LITTLE & ASSOCIATES,                              (D. N.M.)
P.A.; BAC HOME LOANS SERVICING,
LP,

             Defendants-Appellees


                            ORDER AND JUDGMENT*


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


      Robert F. Sartori, pro se, appeals from the district court’s final judgment,

contesting orders granting summary judgment to defendants. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. BACKGROUND1

      In January 2008, Sartori refinanced a house. He executed a note and a

mortgage. The note and mortgage identified New Day Financial, LLC, as the lender.

The mortgage identified Mortgage Electronic Registration Systems, Inc. (MERS),

and its successors and assigns, as both the mortgagee and the nominee of New Day

and its successors and assigns, and provided that MERS held legal title to the

interests granted by the mortgage and had the power to foreclose on the property. An

allonge to the note shows it was assigned to Countrywide Bank, FSB, on the same

day the note was executed. See R., Vol. 2 at 451.2 Countrywide Home Loans

Servicing, LP, began to service the loan the next month. In April 2009, Countrywide

changed its name to BAC Home Loans Servicing, LP (BAC), which is one of the two

defendants in this case. On July 28, 2009, MERS assigned the mortgage and the note

to BAC. The same day, the other defendant, Susan C. Little & Associates, P.A.

(SCLA), a law firm representing BAC, accessed Sartori’s credit report from

Experian. SCLA then filed a foreclosure action in New Mexico state court on BAC’s

behalf and served Sartori on September 16, 2009. Sartori did not answer the

1
       Sartori contests some of the facts we are about to set forth, primarily
disavowing he had an account with defendant BAC Home Loans Servicing or its
successor, Bank of America, N.A. But as the remainder of our decision makes clear,
his key contentions are either conclusory and self-serving or without record support.
As such, they are insufficient to avoid summary judgment.
2
       An “allonge” is “[a] slip of paper sometimes attached to a negotiable
instrument for the purpose of receiving . . . indorsements.” Black’s Law Dictionary
88 (9th ed. 2009).


                                         -2-
complaint or otherwise challenge the foreclosure action. Default judgment was

entered, and Sartori’s house was sold at a foreclosure sale on January 5, 2010.

      In July 2011, BAC merged with and into Bank of America, N.A. (BANA).

Accordingly, we will refer to BANA instead of BAC unless otherwise necessary.

      In August 2011, Sartori filed the action underlying this appeal. In the

controlling amended complaint, he alleged that the debt governed by the note and the

mortgage were with a creditor other than BAC, although he did not identify the other

creditor. He asserted that in their efforts to collect on the debt he owed, defendants

had violated provisions of the Fair Debt Collection Practices Act (FDCPA),

15 U.S.C. §§ 1692-1692p; the Fair Credit Reporting Act (FCRA), 15 U.S.C.

§§ 1681-1681x; and the Telephone Consumer Protection Act of 1991 (TCPA),

47 U.S.C. § 227.3 SCLA and BANA filed separate motions for summary judgment,

and a magistrate judge issued recommendations that their motions be granted. The



3
       Sartori later sought to amend his complaint again, proposing to add new
defendants and new claims, including wrongful foreclosure and conversion. The
district court denied the motion. On appeal, Sartori has not presented any argument
on the denial of his motion to amend, stating only in the conclusion of his opening
brief that, in addition to reversing the district court’s decisions on the merits and
remanding the case, he would like “leave to amend his complaint to correct any
deficiencies and add newly discovered violations and defendants.” Aplt. Opening Br.
at 30. This is wholly inadequate to garner appellate review. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840-41 (10th Cir. 2005) (concluding that
pro se litigant waived appellate review where statements supporting issues consisted
of “mere conclusory allegations with no citations to the record or any legal
authority”). Hence, we restrict our ensuing discussion to the district court’s orders
granting summary judgment to defendants.


                                          -3-
district court adopted the recommendations over Sartori’s objections and dismissed

the action with prejudice. Sartori appeals.

                                  II. DISCUSSION

      Because Sartori has conducted this litigation pro se, we afford his filings a

liberal construction, but we do not act as his advocate. Yang v. Archuleta, 525 F.3d

925, 927 n.1 (10th Cir. 2008). Furthermore, his pro se status does not excuse him

from complying with procedural rules applicable to all litigants. Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

      Our review of the district court’s grant of summary judgment is “de novo,

applying the same standards [as] the district court.” EEOC v. C.R. England, Inc.,

644 F.3d 1028, 1037 (10th Cir. 2011) (internal quotation marks omitted). A “grant of

summary judgment must be affirmed ‘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.’” Id. (quoting Fed. R. Civ. P. 56(a)). “[W]e consider the evidence in the light

most favorable to the non-moving party,” but “unsupported conclusory allegations do

not create a genuine issue of fact.” Id. (brackets and internal quotation marks

omitted).

      Before turning to the merits of each of Sartori’s claims, we pause to address a

fundamental factual theme Sartori emphasized in the district court and which persists

on appeal: that defendants have not proven he had any account with the initial lender

(New Day Financial), or with BAC or its successor, BANA. Specifically, Sartori


                                         -4-
alleges that no original promissory note was ever produced, denies that the copy of

the note bears his signature, denies having defaulted, and claims there were

irregularities in assigning and recording the mortgage and in assigning or negotiating

the note that precluded defendants from foreclosing on his property. But his

allegations that he did not have an account with New Day, BAC, or BANA, and that

he did not default on the loan, amount to only conclusory, self-serving, and

generalized denials, which are insufficient at the summary judgment stage. See

Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 834 (10th Cir. 1986)

(“Conclusory allegations, general denials, or mere argument of an opposing party’s

case cannot be utilized to avoid summary judgment.”); Skrzypczak v. Roman Catholic

Diocese of Tulsa, 611 F.3d 1238, 1244 (10th Cir. 2010) (stating that “conclusory and

self-serving affidavits are not sufficient” to survive summary judgment).

      For example, in his amended complaint, he alleged that he owed the debt to “a

creditor other than Defendants,” R., Vol. 1 at 262, but he produced no evidence (or

even an allegation) of who the other creditor was. His contention that he did not

have an account with BANA or its predecessors in interest appears primarily based

on the fact that, during this litigation, defendants produced copies of the note and

mortgage, not the originals. Moreover, his factual assertions overlook that BAC was

permitted to foreclose on the property that secured the loan associated with the

account he claims he never had or defaulted on. And even if we assume there is

some merit to his allegations regarding procedural improprieties concerning the


                                          -5-
transfer of the note and mortgage, they are immaterial to the bases for our disposition

because the lawfulness of the foreclosure is not at issue.

      Having rejected these factual assertions, we turn to Sartori’s FDCPA claim.

Under 15 U.S.C. § 1692g(a), a debt collector must provide certain information within

five days of an initial communication with a debtor. If the debtor notifies the debt

collector within thirty days of receipt of that information that he disputes the debt,

the debt collector must then cease collection of the debt until it verifies the debt in

one of the ways enumerated in § 1692g(b). Sartori claimed that BANA and SCLA

failed to comply with these requirements. The district court provided several

alternate grounds for granting both defendants summary judgment on that claim, but

we affirm on just one of those grounds: that the claim is barred by the one-year

statute of limitations set forth in 15 U.S.C. § 1692k(d).

      The district court concluded that Sartori knew in January 2009 that BANA was

attempting to collect on the debt but decided that, in any event, the statute of

limitations began to run no later than January 5, 2010, when Sartori’s property was

sold at foreclosure. Because he did not file his complaint until August 10, 2011, the

court held his FDCPA claim was barred by the one-year limitations period. The

court rejected his argument that the limitations period began to run on November 19,

2010, when he claimed he discovered defendants were still involved with his credit

reports. The court also rejected his equitable-tolling argument because it was based

on an unsupported, conclusory assertion of fraud by SCLA. We agree with the


                                           -6-
district court’s assessment. Any failure by defendants to abide by the time-sensitive

provisions of §1692g(a) or (b), if applicable, would have been wholly known to

Sartori more than one year before he filed his complaint in August 2011. We also

agree with the district court that his equitable-tolling argument is devoid of any

factual support.

      Under the FCRA, Sartori alleged that both defendants violated 15 U.S.C.

§ 1681b(f) when they pulled his credit report from Experian without a proper

purpose.4 The district court concluded that there was no evidence BANA had pulled

his credit report, but regardless of that, each defendant had a proper purpose for

obtaining it—BANA to verify the accuracy of Sartori’s account, and SCLA to verify

his address for purposes of serving him with the foreclosure complaint.

      On appeal, Sartori points to evidence that BANA (as Bank of America Home

Loans, which ostensibly is defendant BAC) obtained his credit score on June 4, 2009.

See R., Vol. 2 at 747. Because a credit score appears to fall within the definition of

“consumer reports” for which there must be a proper purpose, see 15 U.S.C.

§ 1681a(d)(1), we will assume that BANA needed such a purpose. But we easily see

a proper purpose: “review or collection of [his] account,” § 1681b(a)(3)(A). We

further conclude that SCLA shared that purpose. Sartori contends that BANA never

established that SCLA was acting as its agent when it pulled his credit report, but we
4
      In relevant part, § 1681b(f) prohibits obtaining a consumer report unless it “is
obtained for a purpose for which the consumer report is authorized to be furnished
under [§ 1681b].” 15 U.S.C. § 1681b(f)(1).


                                          -7-
fail to see a genuine issue of material fact given that SCLA initiated the state-court

foreclosure action the next day and served the complaint on Sartori.

      Sartori also disputes the district court’s grant of summary judgment to BANA

on his claim that BANA failed to comply with another set of FCRA obligations set

out in 15 U.S.C. § 1681s-2(b). Under that provision, when a consumer reporting

agency (CRA) notifies a “furnisher of information” (such as a creditor) that a

consumer has raised a dispute about information the furnisher provided to the CRA,

the furnisher must conduct an investigation regarding the completeness and accuracy

of the information and report the results to the CRA. See id. If the information is

incomplete or inaccurate, the furnisher must report that result to all national CRAs to

which it reported the information and must correct the information as appropriate.

See id.

      BANA received notices of Sartori’s dispute from CRAs three times in 2011

and twice in 2012. The district court concluded that BANA conducted a reasonable

investigation all five times and informed the CRAs that the information was accurate.

      On appeal, Sartori argues that BANA was not entitled to summary judgment

because it reported his debt to the CRAs without noting he disputed it. Although

some courts have held that a furnisher of information violates § 1681s-2(b) if it fails

to identify that a consumer disputes the information, the dispute must be “bona fide,”

i.e., one “that could materially alter how the reported debt is understood.” Gorman v.

Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009) (citing Saunders v.


                                          -8-
Branch Banking & Trust Co. of Va., 526 F.3d 142, 151 (4th Cir. 2008)). Given our

rejection of Sartori’s allegations that he did not have an account with BANA or

default on it, coupled with the fact that Sartori raised his disputes through the CRAs

after BANA (as BAC) had foreclosed on the property securing the debt, we conclude

that the dispute was not bona fide, and BANA therefore had no obligation to identify

it.

      Sartori based his TCPA claim on 47 U.S.C. § 227(b)(1)(A)(iii), which in

relevant part renders it unlawful “to make any call (other than . . . with the prior

express consent of the called party) using any automatic telephone dialing system or

an artificial or prerecorded voice . . . to any telephone number assigned to a . . .

cellular telephone service.” Sartori challenges the district court’s ruling that he had

provided prior express consent to BANA to make such calls when he had given

BANA his cellphone number as a contact number for his account in February 2009 in

the normal course of business. Sartori claims that an established business

relationship is insufficient to show consent under 47 C.F.R. § 64.1200(a)(1). He also

argues that consent must be express, in writing, and specifically authorize the use of

autodialed and prerecorded-voice calls to a cell phone.

      We need not resolve whether an “established business relationship” constitutes

the prior consent necessary under the statute because the district court did not rely on




                                           -9-
that test.5 Although the court mentioned the similar phrases “normal course of

business” and “normal business communications,” R., Vol. 2 at 822-23, it relied on a

declaratory ruling issued by the Federal Communications Commission (FCC) in

2008. In that ruling, the FCC determined that autodialed and prerecorded-voice calls

are permissible when made “to wireless numbers provided by the called party in

connection with an existing debt.” In re Rules & Regulations Implementing the

Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564 (2008). The

FCC explained “that the provision of a cell phone number to a creditor, e.g., as part

of a credit application, reasonably evidences prior express consent by the cell phone

subscriber to be contacted at that number regarding the debt.” Id.6

      With its summary judgment motion, BANA provided the affidavit of one of its

assistant vice-presidents, Daniel Leon, who stated that BANA’s records showed

Sartori called BANA in February 2009 and gave his cell phone number because

“BANA was unable to reach him at the prior number listed on the account.” R.,

Vol. 2 at 443. Under the FCC ruling, this constituted the “prior express consent”

required by 47 U.S.C. § 227(b)(1)(A), and there is no indication Sartori revoked that

5
       Indeed, some courts have reasoned that an established business relationship is
sufficient consent for autodialed and prerecorded-voice calls to residential land lines
but not to cell phones. See, e.g., Bentley v. Bank of Am., N.A., 773 F. Supp. 2d 1367,
1374 (S.D. Fla. 2011).
6
       Like the district court, the FCC referred to “normal business communications,”
but this was only to indicate that in providing a cell phone number to a creditor, a
consumer has given permission for the creditor to use that number for “normal
business communications.” 23 FCC Rcd. 559, 564 & n.34.


                                         - 10 -
consent.7 Like the statute and the FCC ruling, the regulation Sartori cites, 47 C.F.R.

§ 64.1200(a)(1), requires only “prior express consent”; it does not require that

consent to be in writing.8

      The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Jerome A. Holmes
                                                  Circuit Judge




7
       Sartori summarily denies that he provided his cell phone number to BANA,
but we decline to consider this argument because he provides no record citation for
his assertion. Consequently, he has failed to preserve appellate review on this point.
See Garrett, 425 F.3d at 840-41 (explaining that “the court cannot take on the
responsibility of serving as the [pro se] litigant’s attorney in . . . searching the
record”). Hence, Leon’s affidavit is undisputed.
8
       The only case Sartori cites in support of his argument that consent must be in
writing, Leckler v. CashCall, Inc., 554 F. Supp. 2d 1025 (N.D. Cal. 2008), was
vacated due to lack of subject matter jurisdiction, see Leckler v. Cashcall, Inc.,
No. C 07-04002 SI, 2008 WL 5000528 (N.D. Cal. Nov. 21, 2008) (unpublished).


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