cases like mr burton's to undermine the applicability of one of the longest standing to more protection laws that the united states has had what happened in this case was that mr burton was going to doubt that it was at least five years court put in place that inactive the congressional will to protect consumer debtors this court has said has long said that what is at issue in determining whether i got this consumer debt is the underlying transaction itself going back to the miller versus the kalar case where we dealt with this court dealt with a house that had been used for personal property and then converted into a business property at the time of the collection efforts this court  it's not the debt or subsequent use of the property that controls whether the f t c p a applies if the transaction when the merchant or creditor and the consumer first entered into the transaction between guns that was the same kind of thinking behind the newman versus boma perlstein case in which this court noted that condominium assessments were deaths under the concern of the fair debt collection practices act because the role out of the original transaction between the condominium owners and the condominium association so this court said in newman that even though the future transactions the exact amount and nature of the condominium  might not be known when they first purchased that condo did not mean that they were not governed by that initial transaction then the court said in miller and say miller mckenna versus  it's that original transaction and how the parties viewed it that governs from the primary reason for that this court has said over and over is that the f t c p a makes a distinction between sophisticated or at least those people congress are super sophisticated business people and consumers in this quarter so in the past that business people if they enter into a debt are presumed to be able to protect themselves that was the thinking behind congress passing protections only for consumer debtors so when a business person enters into a transaction and later a loser uses that transaction for personal reasons takes out a business card for example and charges some presents for his kids that business person doesn't become less sophisticated because they misuse the car they're still able to defend themselves against the creditor later debt collectors but a consumer who takes out a consumer debt such as happened with the home that was purchased in the miller case does not become more sophisticated simply because they opt to use a card or a a businessman or and that's the the first thinking behind this courts in many courts interpretation of when you look at a debt to determine if it's consumer or business at the outset the other reason that became apparent from the burton case that that makes a lot of sense is because when you look at what happened in my client's case here you get yourself into this maze of logistics where you're trying to determine what exactly is a business or personal use of the card and what transactions that were made along the way on the car and that if the individual transactions were not each individually proven to some degree to be consumer debt that mr burton has no claim under the fair to collection practices  now in the first instance with respect to a debt such as this that mr burton doesn't recognize he testified that he had somewhere between ten and twenty credit cards overall this was a debt that goes back five years at the time he sued he doesn't recall having it out of the sort it all he certainly this debt and why he is being questioned for it and when he was deposed he testified that he had been notified not long prior to this filing of this lawsuit that he had been the victim of identity theft so mr burton is put in a situation where he doesn't remember having this card and he might have been the victim of identity theft and before he can invoke a federal law protecting him from unfair collection practices he has to prove the nature of the debt now this court has said you prove the nature of the debt by proving that it was consumer at the outset that the transaction was a consumer transaction and what we're maintaining here is that that transaction is mr burton applying for and opening a credit account i liken it to one of the briefs to a close down on where you take the fisher affidavit and the reinecke e mail that supplied what they said was the terms and conditions of mr burton opening the account and that those terms and conditions and the bills of the billy statements that were sent were in fact encouraged by mr b illinois so there was sufficient evidence through which a jury could conclude that even though mr burton didn't recall the account he could have been the one to actually encourage the deaths on the account and that because of that the city employee at katherine reinecke the senior vice although he was the person identified in response to a notice of deposition to answer questions on behalf of the city corporation m b i have to say that on behalf of city correct so city had been notified of a deposition that identified ms reinecke as the person who would answer questions circumstantial evidence this was a consumer debt wrecked i guess are the fair statement of our case would be we believe it yuri would always find that this was consumer debt but back at the very least the jury should have been given that opportunity given the evidence in this case that summary judgment should not have been granted to the defense correct and in light of the summary judgment procedure when both sides move for summary judgment we get as the losing party in this case we get the benefit of those reasonable inferences so that's where we were assume that argue window in order to show that this was was a consumer get all right you have to assume argue and go that it's his account yeah i don't understand that theory because the for the essence of the judge judge's decision on summary judgment that he needed to have somebody without personal knowledge or foundation on the underlying transactions to testify that these are consumer debt i don't think that that mr burton can stand up and say well i'll just assume that i'm the customer on this and and therefore say these are consumer percolates think it is most forceful evidence is the state of the credit card statement showing typical consumer purchases seven eleven stuff things of that nature like that and that and that is introduced as a business originally because the issue came up as to what even if you look at these statements who's going to characterize those transactions that you say are perhaps typically of the consumer nature and i think that's where the judge related or not and and i think under the f t c p a the burden is clear that it's on the person pursuing the claim that they have to prove the character of that that in some situation there could be consumer debt just by looking at a statement i can't say without knowing more but i think the the burden still rubio require someone to testify as to the nature of it and that and i don't think the judge in summary judgment motion can do that if the judge the judge's opinion i must say struck me as a little bit medieval if very frankly one hundred and angels can dance on the head of whose testimony characterizing the purposes just to be clear i disagree with the idea that the miller case stands for the idea that at the outset of applying for credit card each transaction  transactions determined think each transaction stands on its own the cases that were cited to were unique and in the stance that it's looking at a purchase of all the personal residence but when you get into a credit card you have multiple transactions and it could be mixed it could be any number of things then it's a tougher question and you need a foundational witness to testify to counsel mentioned something about well what if you have a business card and burton did in this case to try to go and look at these individual charges which were incurred as counsel mentioned around the stove apparently so he certainly had the ability to investigate these and was submitted didn't go into this level of detail for instance i think we learned for the first time on appeal that he now claims these he did get these statements for three years and didn't do anything about it charges any information relating to those in the record either this goes to trial where where mr burton has the standing almost to claim it is the count now it's subject to a pretty strong impeachment don't you think he does not have to prove that  account to maintain a claim under the fair debt collection practices act he just has to prove that he is being sued on account wrongfully whether or not he knows it would be a stronger case for mr burton if he did not owe the account at all and that's really where this case lands if i claims who or whatever he did to someone so against him i guess you'd say because it's consumer debt what is it which goes to a jury would have to believe it wasn't his death based on the proof presented so jerry could believe that this was primarily consumer debt but that mr burton didn't know they stepped they would come up with hypotheticals about building a building or doing something else which is obviously easy to prove kno w was in my building or something like that when it's a very small dead that's very difficult to show it's not yours or something unless it's to something specific like a school to support something that you would hope to have a student their student getting for his student obligations no i have no student at that school that's all i'm trying to look at if you're to try to do something you can put your finger on it that couldn't be his dead but in terms of in terms of mr burton proving that he was wrongfully suit that was one of the defenses in the state court case just so the procedural background is clear coating you to fund small claims suit that mr burton defended procedure in front of a court commissioner wisconsin as a two step process for small claims mr burton lost in front of the court commissioner and filed the request for the no vote trial in front of a circuit judge at that point he retained my firm and we  in the state court action and also filed the federal action ultimately i judge sidewall there in the brown county circuit court rather summarily dismissed the state court action and said in essence take it up in federal court that's where they can decide this sort of no finding  remained in the state court as to who was live on this and mr burton would have had to convince the jury under the alternate grounds that he was not the one liable for now with respect to looking at the individual transactions we did point out to the district j that these transactions appeared to be consumer and could be construed to be consumer but you have to keep in mind there's nearly nine thousand dollars of charges shown on the card and the billing statements that were provided to discovery only covered a very steep percentage of that so there's not even enough information in there to investigate from our and we can't go back over ten years of billing statements that have been provided and may not exist anymore that's again one of the problems mr burton faced here so that's one of the problems  and have resolved many cases and i'm more professional level from my perspective this case certainly helps mr burton avoid a liability he doesn't believe he should have to pay and helps just by his rights but in a broader perspective every dance that consumer protection lawyers make every time a court rules in their favor that is the answer the protections for thousands of other defendants who never get around are going to turkey that's the significance of the case from my perspective