Owsley v. Coldata Inc

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 29, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-21112
Summary Calendar
CHERYL L. OWSLEY, Individually and on behalf of
all other similarly situated Plaintiffs,
Plaintiff-Appellant,
versus
COLDATA INC., doing business as Coldata Collection Companies,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-3141
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Before WIENER, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Cheryl L. Owsley appeals from the grant of
summary judgment for defendant Coldata, Inc., in her action under
the Fair Debt Collection Act. Owsley contends that Coldata’s
letter violated 15 U.S.C. § 1962e(10) because it created the false
impression that Owsley’s account would be turned over to an
attorney for legal action if she did not pay Coldata. She argues
that her affidavit proves that an unsophisticated consumer would
construe the letter as she did. According to Owsley, Coldata sent

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the letter to over 70,000 consumers in Texas and had reason to know
that Verizon would not retain counsel to sue 70,000 people over a
few hundred dollars each.
As Owsley makes no contentions regarding 15 U.S.C.§
1692e(2)(A) or § 1692e(5), as she did in the district court, she
has abandoned those contentions on appeal. In re Municipal Bond
Reporting Antitrust Litigation, 672 F.2d 436, 439 n.6 (5th Cir.
1982).
We have not decided whether to view collection notices from
the standpoint of the “least sophisticated consumer” or the
“unsophisticated consumer.” “[T]he difference between the
standards is de minimis at most.” Peter v. GC Servs. L.P., 310
F.3d 344, 348 n.1 (5th Cir. 2002).
There was no genuine issue of material fact regarding whether
Coldata’s letter employed “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or to
obtain information concerning a consumer.” 15 U.S.C. § 1692e(10);
see FED. R. CIV. P. 56(c). The letter sent to Owsley informed her
in relevant part that her account was “scheduled to be returned to
[her] creditor who may [inter alia] . . . secure advice of counsel
regarding appropriate steps to be taken to enforce payment.” The
letter did not imply that a lawsuit was imminent or that Coldata
had any say in whether legal action would be taken. Neither did it
suggest that the creditor likely would pursue legal action. On the

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contrary, the letter indicated that the creditor might take actions
other than pursuing suit —— specifically, updating credit-reporting
services on Owsley’s account or withdrawing previous settlement
offers and demanding payment in full, or both. The possibility
that the creditor might secure legal advice was listed as a third
option, but even that cannot be construed as indicating the
likelihood of litigation. The language of the letter, although
suggesting that Coldata had counsel on retainer and that the stakes
might be raised in the future, see Avila v. Rubin, 84 F.2d 222, 229
(7th Cir. 1996), would not lead a recipient with any degree of
sophistication to believe that legal action was imminent. See
Gammon v. GC Servs. L.P., 27 F.3d 1254, 1257 (7th Cir. 1994); Jeter
v. Credit Bureau, Inc., 760 F.2d 1168, 1175 (11th Cir. 1985); Ditty
v. Checkrite, Ltd., 973 F. Supp. 1320, 1330 (D. Utah 1997).
AFFIRMED.

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