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Marx v. General Revenue Corp.
In this Fair Debt Collection Practices Act (FDCPA) case, the Tenth Circuit affirmed judgment for the defendant, debt-collector, General Revenue Corp. (GRC) on two issues. First, the Tenth Circuit concluded that a fax GRC sent to plaintiff-debtor's employer was not a "communication" under the FDCPA because the fax did not identify or imply any debt. Therefore, GRC did not violate the FDCPA by sending the fax to plaintiff's employer. Second, the district court's award of costs to GRC was proper despite the fee and cost shifting provision in the FDCPA that permits an award of fees and costs to a debt-collector only when a claim is brought in "bad faith" and for the purpose of "harassment." The Tenth Circuit held that the cost shifting provision in the FDCPA did not supersede FRCP 54(d).
Plaintiff Olivea Marx (Marx) asserted FDCPA claims against GRC in the U.S. District Court for Colorado. After a bench trial, the district court entered judgment against Marx and awarded costs to GRC of $4,543. Marx appealed the judgment and award of costs.
Marx defaulted on student loans and the lender hired GRC to collect on the loan. GRC sent a fax to Marx's employer to "verify employment." The form that was faxed contained GRC's name, contact information and an "ID" number "representing GRC's internal account number" for Marx. The faxed form also contained blanks for Marx's employer to provide information about Marx's employment. The Tenth Circuit determined that the fax GRC sent did not expressly reference or even imply a debt. The court also noted that Marx did not call any witness from her employer to testify about whether the employer inferred that the subject of the fax was a debt. The district court did not make a finding that Marx asserted her FDCPA claims in bad faith and for the purpose of harassment, as required by the fee and cost shifting provision in 15 USC 1692k(a)(3). The district court awarded costs to GRC because GRC made an offer of judgment under FRCP 68, which Marx rejected. The Tenth Circuit held that costs were not proper under FRCP 68 because that rule does not apply when judgment is for the defendant. However, the Tenth Circuit held that costs were proper under FRCP 54(d) and affirmed the award of costs on that basis.
Judge(s):Kelly and Gilman (Sixth Circuit Judge sitting by designation); Lucero (filing written dissent on both issues).