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Evankavitch v. Green Tree Servicing, LLC

United States Court of Appeals, Third Circuit

July 13, 2015


Argued December 9, 2014.

On Appeal from the United States District Courtfor the Middle District of Pennsylvania. (D.C. No. 3-12-cv-02564). District Judge: Honorable James M. Munley.

Carlo Sabatini, Esq., Dunmore, PA; Deepak Gupta, Esq. [Argued], Gupta Wessler, Washington, DC, Counsel for Appellee.

Barbara K. Hager, Esq., Henry F. Reichner, Esq., Reed Smith, Philadelphia, PA; David J. Bird, Esq. [Argued], Reed Smith, Pittsburgh, PA, Counsel for Appellant.

Before: FUENTES, FISHER, and KRAUSE, Circuit Judges.


KRAUSE, Circuit Judge.

Under the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692, et seq., a debt collector is liable to a consumer for contacting third parties in pursuit of that consumer's debt unless the communication falls under a statutory exception. One of those exceptions covers communication with a third party " for the purpose of acquiring location information about the consumer" but, even then, prohibits more than one such contact " unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information." 15 U.S.C. § 1692b. In this appeal following a jury verdict and judgment entered against a debt collector for repeated contact with third parties, we consider a matter of first impression among the Courts of Appeals: whether the burden in such a case is on the debt collector to prove or the consumer to disprove that the challenged third-party communications fit within § 1692b's exception for acquisition of location information. We conclude that the debt collector bears that burden and will therefore affirm.

I. Facts and Procedural History

In 2005, Patricia Evankavitch executed a $43,300.00 mortgage against her property so that she could, in turn, lend money to her son, Christopher.[1] In order for Evankavitch to repay the loan, Christopher regularly deposited checks into her bank account, and she then paid the mortgage company. Eventually, however, Christopher had financial difficulties and stopped depositing his checks. As a result, Evankavitch fell behind on her loan payments. In May 2011, with Evankavitch four months behind, the mortgagee's rights were assigned to Green Tree Servicing, LLC (" Green Tree" ).[2]

Green Tree and Evankavitch had periodic conversations about the loan over the next several months. Evankavitch initiated one of those discussions by calling Green Tree from a cell phone belonging to her daughter, Cheryl, which apparently led Green Tree to record Cheryl's number as an additional number where it could reach Evankavitch. Thus, towards the end of 2011, Green Tree made numerous unsuccessful calls to Evankavitch at both Evankavitch's and Cheryl's numbers.

In January 2012, Green Tree reached Cheryl on her cell phone. Cheryl said that she would ask her mother to call Green Tree. A month later, Evankavitch called Green Tree again from Cheryl's cell phone. This time, she informed Green Tree that the number was her daughter's and instructed Green Tree to stop using it. Instead, over the next several months, representatives from Green Tree continued to call both Evankavitch's and Cheryl's numbers and left several messages on Cheryl's voicemail requesting that Evankavitch call Green Tree.

In August 2012, after failing to reach Evankavitch, Green Tree began calling Evankavitch's neighbors, Robert and Sally Heim. After a Green Tree employee asked Mr. Heim to have Evankavitch call Green Tree, Mr. Heim passed Green Tree's contact information on to Evankavitch.[3] After two more months without hearing from Evankavitch, Green Tree made at least three more calls to the Heims, leaving two messages and speaking with Mr. Heim once more. Mr. Heim told Green Tree in that final call that Christopher had moved to California and that Green Tree should stop calling the Heims. After learning of these communications, Evankavitch brought suit, claiming, among other things, that Green Tree impermissibly contacted Mr. Heim in its debt collection efforts, in violation of § 1692b-c of the FDCPA.

A. The District Court's Challenged Rulings

With limited exceptions, the FDCPA forbids a debt collector from contacting third parties in its attempts to collect a consumer's debt, 15 U.S.C. § 1692c(b), and makes the debt collector liable in an individual action for statutory damages up to $1,000, over and above any actual damages, id. at § 1692k(a). In both an in limine ruling and in its jury charge, the District Court took the position that when a debt collector alleges that it made a contact that falls within the exception for acquisition of location information, the debt collector has the burden to prove the exception as an affirmative defense. Specifically, the District Court advised the jury that Evankavitch and Green Tree " agree that the Fair Debt Collection Practices Act is violated in the sense that they agree that the Defendant contacted third parties and did so multiple times, . . . which is generally a violation of the Act." App. 404-405. It went on to state that the " burden is on the Defendant to determine and establish that it sought location information." App. 405. Thus, the District Court instructed:

[T]he issues for you to decide are[:] one, whether the Defendant has established that it contacted the third parties to obtain location information; and two, whether the Defendant contacted the third party multiple times because the Defendant reasonably believed that the earlier response of the third party is incorrect or incomplete, and that the third party now has the correct or the complete location information.

App. 408.

The jury returned a verdict in favor of Evankavitch. The District Court entered judgment in her favor for $1,000, and this appeal ensued. Green Tree argues on appeal that both the in limine ruling and the jury instructions were improper, such that the verdict should be vacated and this matter re-tried ...

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