## Facts

- Michael D. Caputo owed a credit-card debt arising from a purchase of a Honda tractor mower.
- Professional Recovery Services, Inc. (PRS), through employee-collector John P. Marzulli, attempted to collect the debt by telephone.
- The dispute centered on one voicemail and four subsequent collection calls made in January–February 2000.
- All five communications were recorded, transcribed, and treated as accurate and essentially undisputed.
- Caputo alleged the calls were abusive and deceptive in violation of the Fair Debt Collection Practices Act (FDCPA) and the Kansas Consumer Protection Act (KCPA), and also asserted common-law fraud and outrage (intentional infliction of emotional distress).
- Caputo claimed the calls aggravated preexisting psychological conditions and disabilities reflected in VA disability ratings.

## Issues

1. Whether the recorded communications could support FDCPA claims for harassment/abuse, false or misleading representations, or unfair practices.
2. Whether the debt collector could assert the FDCPA bona fide error defense, or whether it should be barred at summary judgment.
3. Whether the collector’s conduct could constitute unconscionable or deceptive acts under the KCPA, and whether enhanced statutory remedies were available.
4. Whether Caputo qualified as a “disabled person” under K.S.A. § 50-676(b).
5. Whether the recordings supported Kansas tort claims for fraud and outrage.

## Decision

- Defendants’ motion for summary judgment on the FDCPA claims was denied; at least some FDCPA theories presented triable issues based on the recordings.
- Plaintiff’s motion to bar the FDCPA bona fide error defense was denied because the record and briefing did not tie the defense to specific alleged violations and further fact development was needed.
- Plaintiff’s motion for partial summary judgment that he was a “disabled person” under the KCPA was granted based on VA disability ratings and expert psychological evidence.
- Defendants’ motion for partial summary judgment limiting KCPA unconscionability and enhanced-penalty exposure was denied in part; those determinations were left for later resolution in light of the factual context and plaintiff’s disability status.
- Defendants’ motion for summary judgment on fraud and outrage was granted; the recordings did not satisfy Kansas’s elements for fraud or the extreme-conduct threshold for outrage.

## Legal Principles

- Summary judgment may be inappropriate under the FDCPA when recorded, undisputed communications could allow a reasonable factfinder to conclude particular statements or tactics violate §§ 1692d, 1692e, or 1692f.
- FDCPA compliance is evaluated under the “least sophisticated consumer” standard, focusing on whether a communication would mislead or improperly pressure an objectively protected consumer.
- The FDCPA bona fide error defense under 15 U.S.C. § 1692k(c) generally requires proof the violation was unintentional and occurred despite procedures reasonably adapted to avoid the error; it is commonly assessed violation-by-violation rather than in the abstract.
- Under the KCPA, a “disabled person” is a consumer whose physical or mental condition substantially impairs the ability to protect their own interests; disability status may be established through disability ratings and expert testimony.
- KCPA unconscionability can turn on whether a supplier knowingly takes advantage of a consumer’s disability; whether conduct is unconscionable and whether enhanced remedies apply are often fact-intensive.
- Kansas fraud requires proof of a knowing material misrepresentation, reasonable reliance, and damages; aggressive or imprecise collection statements, without the required showing, do not establish fraud.
- Kansas outrage requires conduct so extreme as to be atrocious and utterly intolerable in a civilized society; routine debt-collection pressure that falls short of that level is not actionable.

## Conclusion

The court treated five undisputed recorded collection communications as the core evidence, allowed the FDCPA and KCPA statutory claims to proceed for fact-specific evaluation, declared the plaintiff a “disabled person” under the KCPA, declined to strike the FDCPA bona fide error defense at summary judgment, and dismissed the Kansas tort claims for fraud and outrage.


Caputo v. Pro. Recovery Servs., Inc., 261 F. Supp. 2d 1249 (D. Kan. 2003)