In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-2059

JOHN H. BURTON,

Plaintiff-Appellant,

v.

KOHN LAW FIRM, S.C., et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:16-cv-00594-NJ — Nancy Joseph, Magistrate Judge.

____________________

ARGUED NOVEMBER 29, 2018 — DECIDED AUGUST 9, 2019

____________________

Before FLAUM, RIPPLE, and MANION, Circuit Judges.

RIPPLE, Circuit Judge. The history of this litigation began 

in the circuit court for Brown County, Wisconsin. Kohn Law 

Firm, S.C. (“Kohn”), acting on behalf of Unifund CCR, LLC 

(“Unifund”), a debt collection agency, brought an action 

against John H. Burton. Unifund sought to collect from 

Mr. Burton a debt incurred on a Citibank, N.A. (“Citibank”), 

credit card account. Mr. Burton denied knowledge of, or any 

association with, that account. 
2 No. 18-2059

While that action was pending in state court, Mr. Burton 

filed the present lawsuit against Kohn in the United States 

District Court for the Eastern District of Wisconsin. He alleged that, with respect to the same debt, Kohn had violated 

the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. 

§§ 1692–1692p, and the Wisconsin Consumer Act (“WCA”), 

Wis. Stat. §§ 421–427, by filing the Wisconsin action against 

Mr. Burton without first providing him notice of his right to 

cure the default. 

The Wisconsin state court later dismissed Kohn’s action 

against Mr. Burton on the basis of Mr. Burton’s denial that 

he was the individual who had incurred the underlying 

debt. Mr. Burton then amended his complaint in this federal 

action to add Unifund as a defendant. Following crossmotions for summary judgment by the parties, the magistrate judge, sitting as the district court, entered judgment in 

favor of Kohn and Unifund.1 The district court held that 

Mr. Burton could not proceed on his FDCPA or WCA claims 

because he had failed to present sufficient evidence that the 

debt incurred on the Citibank account was for personal, family, or household purposes and therefore a “consumer debt.” 

Mr. Burton now challenges that determination. 

We agree with the district court. On the record before us, 

Mr. Burton has not come forth with sufficient evidence that 

the debt in question is a consumer debt. Accordingly, we affirm the judgment of the district court.2

 

1 The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367.

2 We have jurisdiction over this appeal under 28 U.S.C. § 1291.
No. 18-2059 3

I

BACKGROUND

On February 17, 2015, Kohn, on behalf of Unifund, 

brought a lawsuit against Mr. Burton in the Circuit Court of 

Brown County, Wisconsin. Kohn claimed that Mr. Burton 

had failed to make payments on a credit agreement with 

Citibank. In his answer, Mr. Burton stated, “I have never had 

any association with Unifund CCR, LLC in the past and do 

not know who you are or what you are talking about, so I 

strongly dispute this debt, with emphasis.”3 He also asserted 

counterclaims against Unifund, alleging that he had been 

“‘ambushed’ by [Unifund’s] Summons and Complaint” and 

that he “did not have any association with Unifund CCR, 

LLC in the past, prior to this legal action.”4 Mr. Burton further contended that his “personal information has also been 

compromised by the State of WI and 3rd party fraud may 

have occurred” on the account in question.5 He asserted as 

affirmative defenses that Unifund had failed to provide him 

notice of his right to cure the default prior to filing suit, in 

violation of Wisconsin Statutes §§ 425.104 and 425.105, and 

that there was a “Lack of Privity” because he “ha[d] never 

entered into any contractual or debtor/creditor arrangements” with Unifund.6 Furthermore, at an evidentiary hearing on July 6, 2015, Mr. Burton testified that he never had 

 3 R.43-1 at 1.

4 Id. at 2.

5 Id.

6 Id. at 4–5. 
4 No. 18-2059

received statements, made payments, or made purchases on 

the Citibank account.

On May 19, 2016, while the Wisconsin action was still 

pending, Mr. Burton began this litigation in the district 

court. He alleged that, “[t]o the extent that Burton entered 

into a credit agreement with Citibank, NA, such agreement 

was entered into for personal, family or household purposes.”7 He claimed that, by failing to provide written notice of 

his right to cure the default on the Citibank agreement before bringing the state court action, Kohn had violated the 

FDCPA, 15 U.S.C. §§ 1692d and 1692e, and the WCA, Wis. 

Stat. § 427.104(1)(h) and (1)(j).

On September 8, 2016, the state court conducted a hearing on a motion by Unifund to dismiss Mr. Burton’s counterclaims. In response to a question from the court, 

Mr. Burton’s counsel confirmed that his “client ha[d] testified under oath that he’s not the John H. Burton that they are 

claiming had this account.”8 Based on this information, the 

state court immediately dismissed Unifund’s claims and 

Mr. Burton’s counterclaims without prejudice. Mr. Burton 

then amended his federal complaint, adding Unifund as a 

defendant in this action. Kohn, Unifund, and Mr. Burton 

then filed cross-motions for summary judgment.

On April 13, 2018, the district court decided the parties’ 

cross-motions. First, the court denied Mr. Burton’s motion 

for summary judgment. Noting that “the FDCPA does not 

protect all obligations, but only those involving ‘consumer’ 

 

7 R.24 ¶ 20.

8 R.53 at 23.
No. 18-2059 5

debt,” the court held that Mr. Burton had not established 

that the underlying debt was a consumer debt.9 The court 

observed that, under the FDCPA, a consumer debt arises out 

of a transaction that is “primarily for personal, family, or 

household purposes.”10 Similarly, the WCA only protects 

“customers,” defined as persons “who seek[] or acquire[] real or personal property, services, money or credit for personal, family, or household purposes.”11

While continuing to maintain that he did not know anything about the debt in question, Mr. Burton attempted to 

demonstrate that the Citibank debt was incurred for “personal, family, or household purposes.” In this respect, he 

submitted evidence that: (1) Kohn and Unifund described 

themselves as debt collectors; (2) the billing statements 

showed that the charges on the credit card were for personal, family, and household use; (3) the billing statements were 

addressed to Mr. Burton personally at his residence; and (4) 

in an email, a Citibank employee described the underlying 

account as a “consumer account.”12 The district court nevertheless determined that this evidence was insufficient to establish that the underlying debt was a consumer debt. The 

court observed that the defendants’ status as debt collectors 

did not establish that the particular debt in question here 

necessarily was consumer debt. Nor did the fact that the de-

 9 R.75 at 4 (citing Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 

F.3d 1322, 1325 (7th Cir. 1997)).

10 Id. (quoting 15 U.S.C. § 1692a(5)).

11 Id. at 6 (quoting Wis. Stat. § 421.301(17)).

12 R.42-3.
6 No. 18-2059

fendants sued Mr. Burton personally or that they repeatedly 

included FDCPA disclaimers in their communications to 

him establish that the debt was a consumer debt. The billing 

statements sent to Mr. Burton’s residence also did not establish that the debts were consumer debts because individuals 

often conduct business transactions at their home. Finally, 

the court noted that Mr. Burton admitted that he had testified that he had not applied for and had no knowledge of 

the transactions on the Citibank account. Viewing the evidence in the light most favorable to the nonmoving party, 

the court held that Mr. Burton was not entitled to judgment 

as a matter of law. 

The district court then granted Kohn and Unifund’s motions for summary judgment. At the outset of its analysis, 

the court made clear that Mr. Burton had the burden of establishing that the underlying transactions were consumer 

transactions. The court noted again that Mr. Burton had disavowed, in sworn testimony, any knowledge of the underlying credit card transactions. Turning to the email from the 

Citibank employee describing the account as a “consumer 

account,”13 the court ruled that the email statement was inadmissible hearsay and that none of the exceptions to the 

rule against hearsay applied. The court also determined that 

the billing statements did “not facially show that the charges 

were made for personal use.”14 Finally, the court considered 

Mr. Burton’s repeated assertions that he had no knowledge 

of, or association with, the Citibank account. Acknowledging 

 

13 Id.

14 R.75 at 11.
No. 18-2059 7

that evidence of identity theft can be relevant to establishing 

the existence of consumer debt, the court nevertheless concluded that Mr. Burton had presented no such evidence in 

this case. Therefore, the court held that Mr. Burton had “not 

put forth any admissible evidence that show[ed] a genuine 

factual dispute regarding whether the debt incurred was for 

personal, family, or household use.”15 The court accordingly 

entered judgment for the defendants. Mr. Burton filed a 

timely notice of appeal.

II

DISCUSSION

In this appeal, Mr. Burton focuses only on the district 

court’s grant of summary judgment for the defendants. We 

review de novo a district court’s decision to grant summary 

judgment. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 

(7th Cir. 2009). Summary judgment is proper “if the movant 

shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). “Thus, to survive summary judgment, 

the nonmoving party must present evidence sufficient to establish a triable issue of fact on all essential elements of [his] 

case.” Lewis, 561 F.3d at 702. “If there is no triable issue of 

fact on even one essential element of the nonmoving party’s 

case, summary judgment is appropriate.” Id.

Here, we examine the record in the light most favorable 

to Mr. Burton and grant him the benefit of all reasonable inferences that may be drawn from the evidence. We will re-

 15 Id. at 13. 
8 No. 18-2059

verse the judgment only if we find a genuine issue concerning any fact that might affect the outcome of the case. We 

must remember, however, that “[o]nce a party has made a 

properly-supported motion for summary judgment, the 

nonmoving party may not simply rest upon the pleadings 

but must instead submit evidentiary materials that set forth 

specific facts showing that there is a genuine issue for trial.” 

Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (internal quotation marks omitted). “The nonmoving party must 

do more than simply show that there is some metaphysical 

doubt as to the material facts.” Id. Further, “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to show a genuine issue of material 

fact.” Liu v. T & H Mach., Inc., 191 F.3d 790, 796 (7th Cir. 

1999). “Rather, a genuine issue of material fact does not exist 

unless there is sufficient evidence favoring the non-moving

party for a jury to return a verdict for that party.” Id.

We have clarified that “[t]he burden on the non-movant 

is not onerous.” Id. “The nonmovant need not depose h[is] 

own witnesses or produce evidence in a form that would be 

admissible at trial, but []he must go beyond the pleadings 

(e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file) to demonstrate that there is evidence upon which a jury could properly proceed to find a 

verdict in h[is] favor.” Modrowski v. Pigatto, 712 F.3d 1166, 

1168–69 (7th Cir. 2013) (citation omitted) (internal quotation 

marks omitted). “Moreover, the non-movant need not match 

the movant witness for witness, nor persuade the court that 

his case is convincing; he need only come forward with appropriate evidence demonstrating that there is a pending 

dispute of material fact.” Liu, 191 F.3d at 796–97. “[A] party 

will be successful in opposing summary judgment only 
No. 18-2059 9

when they present definite, competent evidence to rebut the 

motion.” EEOC. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th 

Cir. 2000) (quoting Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 

1997)).

Both the FDCPA and the WCA were enacted to protect 

personal borrowers from abusive debt collection practices.16

It follows that, to state a claim under either statute, a plaintiff, who has the burden of proof on each element of the 

cause of action, must demonstrate that the debt in question 

arises out of a transaction incurred for personal, family, or 

household purposes. The FDCPA defines a “debt” as “any 

obligation or alleged obligation of a consumer to pay money 

arising out of a transaction in which the money, property, 

insurance, or services which are the subject of the transaction 

are primarily for personal, family, or household purposes.” 15 

U.S.C. § 1692a(5) (emphasis added). Similarly, the WCA protects transactions involving a “customer,” Wis. Stat. 

§ 421.301(13), and defines a “customer” as “a person ... who 

seeks or acquires real or personal property, services, money 

or credit for personal, family or household purposes,” id.

§ 421.301(17) (emphasis added). Expenses incurred for a 

business purpose, by contrast, are outside the scope of both 

 

16 See Suesz v. Med-1 Sols., LLC, 757 F.3d 636, 639 (7th Cir. 2014) (en banc) 

(“The FDCPA is designed to protect consumer debtors against unscrupulous methods of consumer debt collection.”); Kett v. Cmty. Credit Plan, 

Inc., 596 N.W.2d 786, 794 (Wis. 1999) (observing that the WCA “is intended to protect customers from ‘unfair, deceptive, false, misleading 

and unconscionable practices by merchants,’ Wis. Stat. § 421.102(2)(b), 

and ‘to permit and encourage the development of fair and economically 

sound consumer practices in consumer transactions,’ Wis. Stat. 

§ 421.102(2)(c)”).
10 No. 18-2059

statutes. See, e.g., Miller v. McCalla, Raymer, Padrick, Cobb, 

Nichols, & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir. 2000) (interpreting the FDCPA); Seeger v. AFNI, Inc., No. 05-C-714, 

2007 WL 1598618, at *7 (E.D. Wis. June 1, 2007) (unpublished) (interpreting the WCA). 

We also recognized recently that where, as here, a plaintiff maintains that the underlying debt was not his, he can 

nonetheless claim FDCPA protection by showing that the 

debt collector treated him as a “consumer” allegedly owing a 

consumer debt. Loja v. Main St. Acquisition Corp., 906 F.3d 

680, 684 (7th Cir. 2018) (holding “that the definition of ‘consumer’ under the FDCPA includes consumers who have 

been alleged by debt collectors to owe debts that the consumers themselves contend they do not owe”). However, a 

plaintiff proceeding under this theory still must offer evidence to establish that the debt was a consumer debt: in other 

words, that the debt was incurred for personal, family, or 

household purposes.

This appeal therefore turns on the question whether 

Mr. Burton submitted sufficient evidence to create a triable 

issue of fact that the debt incurred on the Citibank account 

was for personal, family, or household purposes.17 Determining the purposes for which a debt was incurred is necessarily a fact-based, case-specific inquiry. Mr. Burton submits 

there are five pieces of evidence establishing that the debt 

incurred on the Citibank account was consumer debt: (1) his 

 17 Because “[c]ourts construe the WCA in accordance with the policies of 

the FDCPA,” we consider Mr. Burton’s FDCPA and WCA claims together. Myers v. Americollect Inc., 194 F. Supp. 3d 839, 846 (E.D. Wis. 2016).
No. 18-2059 11

statements that, to the extent he was liable for the debt, it 

was a consumer debt; (2) the defendants’ treatment of the 

debt as a consumer debt by including FDCPA disclaimers on

the collection letters, suing Mr. Burton in his personal capacity, and sending communications to his personal address; (3) 

Kohn and Unifund’s description of their consumer debt collection services on their websites; (4) a Citibank employee’s 

email description of the underlying account as a “consumer 

account”;18 and (5) the billing statements listing purchases 

made on the credit card for personal, family, or household 

purposes. We consider each submission in turn.

Mr. Burton contends that his own statements suffice to 

show that this was a consumer debt.19 We cannot accept this 

submission. Throughout the state court action, he represented that he had never applied for, had no knowledge of, and 

made no purchases on or payments toward the Citibank account.20 In his federal complaint, by contrast, he alleged that, 

 

18 R.42-3.

19 Mr. Burton further contends that the district court should have considered evidence that his “identity was potentially stolen” in support of 

his position that the debt was a consumer debt. Appellant’s Br. 36. Because Mr. Burton never raised an identity-theft argument before the district court, cf. R.24; R.40; R.70, it is not properly before us in this appeal.

20 See R.43-1 at 1 (answering the complaint and stating, “I have never had 

any association with Unifund CCR, LLC in the past and do not know 

who you are or what you are talking about, so I strongly dispute this 

debt, with emphasis”); id. at 2 (asserting a counterclaim that he was 

“‘ambushed’ by [Unifund’s] Summons and Complaint,” and that he “did 

not have any association with Unifund CCR, LLC in the past, prior to 

this legal action”); id. at 5 (asserting as an affirmative defense “Lack of 

Privity,” alleging that he had “never entered into any contractual or 

(continued ... )
12 No. 18-2059

“[t]o the extent that Burton entered into a credit agreement 

with Citibank, NA, such agreement was entered into for personal, family or household purposes.”21 This latter allegation 

cannot be reconciled with his total disavowals in the state 

court action. Nor has Mr. Burton submitted an affidavit or 

any other sworn testimony in this litigation to support his 

position in opposition to summary judgment. Without more, 

the bald assertion in his complaint is hardly affirmative evidence that the debt was a consumer debt. See, e.g., Martin v. 

Allied Interstate, LLC, 192 F. Supp. 3d 1296, 1307 (S.D. Fla. 

2016) (granting summary judgment for defendants where 

plaintiff stated the eBay account was not hers, but offered no 

evidence showing the account or debt was “consumer in nature”).22

 

( ... continued)

debtor/creditor arrangements with” Unifund); R.46-3 at 6 (Mr. Burton 

“denie[d] applying for the alleged account with alleged original creditor, 

using or making payments on the alleged credit card.”); R.46-4 at 2 

(notes of small claims court commissioner indicating that Mr. Burton had 

testified under oath that he did not receive statements, make payments, 

or make purchases on the Citibank account); R.49-5 at 2 (counsel confirming Mr. Burton had “testified under oath that he’s not the John H. 

Burton that they are claiming had this account”). 

21 R.24 ¶ 20.

22 See also Boosahda v. Providence Dane LLC, 462 F. App’x 331, 335 (4th Cir. 

2012) (unpublished) (per curiam) (holding that plaintiff’s declaration 

stating that he never used credit cards for any business purpose, which 

conflicted with answers he provided in state court deposition and trial 

testimony that he did not recall obtaining the credit cards and did not 

remember making any purchases with the cards, was insufficient to create a genuine issue of material fact); El-Bakara v. Weltman, Weinberg & 

Reis Co., LPA, No. 2:17-cv-05138-MMB, 2019 WL 1258830, at *3 (E.D. Pa. 

(continued ... )
No. 18-2059 13

Mr. Burton next submits that Kohn and Unifund’s treatment of the debt as a consumer debt is evidence that the debt 

was, in fact, a consumer debt. In support, he notes that the 

defendants included FDCPA disclaimers in their collection 

letters, sued Mr. Burton personally in the state court action, 

and sent communications to his home address. However, 

courts have held repeatedly that merely including FDCPA 

disclaimers on debt collection letters is insufficient evidence 

that the debt was a consumer debt because debt collectors 

may be exercising caution and including disclaimers on all 

communications with debtors simply to avoid any FDCPA 

liability. See, e.g., Gburek v. Litton Loan Serv. LP, 614 F.3d 380, 

386 n.3 (7th Cir. 2010) (noting that evidence that letter included disclaimer identifying it as attempt to collect a debt 

“does not automatically trigger the protections of the 

 

( ... continued)

Mar. 19, 2019) (unpublished) (finding plaintiff failed to plead sufficient 

facts to demonstrate the underlying debt was a consumer debt where he 

did not “disclose any specific details about the underlying debt,” other 

than that he believed it was owed by his son and that any alleged debts 

“arose out of a transaction which was primarily for personal, family, or 

household purposes” (internal quotation marks omitted)); Horton v. 

Trans Union, LLC, No. 12-2072, 2015 WL 1055776, at *6 (E.D. Pa. Mar. 10, 

2015) (unpublished) (holding plaintiff’s statements that she had no 

knowledge of purchases, transactions, or payments made on credit card 

accounts and that she was the victim of identity theft failed to demonstrate the accounts involved consumer debts); Garcia v. LVNV Funding 

LLC, No. A-08-CA-514-LY, 2009 WL 3079962, at *4–5 (W.D. Tex. Sept. 18, 

2009) (unpublished) (holding plaintiff failed to meet his burden to prove 

that collection activity arose out of consumer debt where plaintiff denied 

debt was his and failed to produce any evidence regarding purpose for 

which debt was incurred). 
14 No. 18-2059

FDCPA”).23 Nor is it helpful that the defendants brought the 

state court action against Mr. Burton in his personal capacity; an individual can be sued in a personal capacity for a 

business debt.24 Further, it bears little on our inquiry that the 

defendants sent communications to Mr. Kohn at his personal 

address; an individual can carry on business activities from 

his residence.25

 

23 See also Evenson v. Palisades Collection, LLC, No. 2:13-cv-1226, 2015 WL 

3466936, at *5 (S.D. Ohio June 1, 2015) (unpublished) (observing that, 

even if defendants included validation information in collection communications, “the debt collector’s treatment of an obligation as one under 

the FDCPA [was] irrelevant to ... the nature of the obligation itself”); 

Horton, 2015 WL 1055776, at *7 (same).

24 See, e.g., Matin v. Fulton, Friedman & Gullace LLP, 826 F. Supp. 2d 808, 

812 (E.D. Pa. 2011) (finding that defendants’ attempt to collect from 

plaintiff personally was irrelevant to the nature of the debt); see also

Boosahda, 462 F. App’x at 335 (holding that “the fact that the state court 

action was initiated against [plaintiff] in his personal capacity” was “not 

dispositive”); In re Pasley, 596 B.R. 577, 585 (Bankr. W.D. Ky. 2019) (holding that the fact that defendants sued plaintiff personally, rather than his 

corporate identities, did not turn commercial debts into consumer debts).

25 See, e.g., Matin, 826 F. Supp. 2d at 812 (concluding that credit card account statement addressed to plaintiff at home address was insufficient 

evidence of consumer debt); Holman v. W. Valley Collection Servs., Inc., 60 

F. Supp. 2d 935, 936–37 (D. Minn. 1999) (finding that evidence that defendants sent collection letters to plaintiff’s home did not convert commercial debt into consumer debt); see also Evenson, 2015 WL 3466936, at *4 

(finding evidence that defendants listed an individual, rather than a 

business, as the account holder and listed a residential address for the 

account were insufficient to show the debt was a consumer debt); Anderson v. AFNI, Inc., No. 10-4064, 2011 WL 1808779, at *14 (E.D. Pa. May 11, 

2011) (unpublished) (concluding that evidence that debt was associated 

(continued ... )
No. 18-2059 15

Mr. Burton also invites our attention to evidence that 

Kohn and Unifund advertised their services collecting consumer debt on their websites. However, the defendants’ 

marketing materials generally describing their debt collection services do not establish that the debt they attempted to 

collect in this case was a consumer debt.

Next, Mr. Burton seeks to rely on the email of a Citibank 

employee, Cathrine Reinecke, stating that the account in default “was a consumer account.”26 Reinecke sent this message in response to an email from Mr. Burton’s counsel inquiring, “Is there any way of knowing whether this was a 

business or consumer account? Does Citi mark the file in one 

way or another?”27 Characterizing the email as “a statement

made by someone other than the declarant to prove the truth 

of the matter asserted (that the debt was consumer debt),” 

the district court excluded this email as inadmissible hearsay.28 Mr. Burton submits the Reinecke email is not hearsay 

but instead a statement of an opposing party under Federal 

Rule of Evidence 801(d)(2)(C). In the alternative, he contends, even if the email is hearsay, it is admissible under the 

residual exception to the hearsay rule, Rule 807. We review 

the district court’s evidentiary ruling for an abuse of discre-

 

( ... continued)

with an individual and a residential address was insufficient to establish 

debt was a consumer debt). 

26 R.42-3.

27 Id.

28 R.75 at 10.
16 No. 18-2059

tion. United States v. Thornton, 197 F.3d 241, 250 (7th Cir. 

1999).

A statement made out of court and offered to prove the 

truth of the matter asserted is hearsay and is not admissible 

into evidence. Fed. R. Evid. 801(c), 802. Here, Mr. Burton 

sought to introduce Reinecke’s email to establish that “Citi 

itself stated that the account was a consumer account.”29

Thus, the district court correctly characterized the statement 

as hearsay.

The Rules of Evidence exclude from the definition of 

hearsay a statement “offered against an opposing party” that 

“was made by a person whom the party authorized to make 

a statement on the subject.” Fed. R. Evid. 801(d)(2). The 

Reinecke email does not satisfy this exception. Reinecke is an 

employee of Citibank, which is not a party to this lawsuit. 

Her statement therefore cannot be attributed to Kohn or to 

Unifund, the opposing parties here.30 Moreover, Mr. Burton 

offers no evidence that Kohn or Unifund authorized 

Reinecke to speak on behalf of either company on any subject, let alone about the account in default here. Consequently, her email is not a statement by an opposing party as contemplated by Rule 801(d)(2)(C). See, e.g., Carlisle v. Deere & 

Co., 576 F.3d 649, 656 (7th Cir. 2009) (concluding Rule 

 

29 R.40 at 6. 

30 See, e.g., Linder & Assocs., Inc. v. Aetna Cas. & Sur. Co., 166 F.3d 547, 

551–52 (3d Cir. 1999) (holding that a statement in a policy guide produced by another insurance company in another lawsuit was not an admission by Aetna).
No. 18-2059 17

801(d)(2)(C) did not apply to statements made by a company 

with no authority to speak on Deere’s behalf). 

Nor does the Reinecke email fall within the residual exception to the hearsay rule. Rule 807 provides that a statement not otherwise subject to a hearsay exception “is not excluded by the rule against hearsay” if:

(1) the statement has equivalent circumstantial 

guarantees of trustworthiness; 

(2) it is offered as evidence of a material fact; 

(3) it is more probative on the point for which 

it is offered than any other evidence that the 

proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of 

these rules and the interests of justice.

Fed. R. Evid. 807(a). In applying this rule, we have heeded 

congressional guidance to construe “these conditions narrowly” so that the residual exception does not swallow the 

rule against hearsay. United States v. Sinclair, 74 F.3d 753, 759 

(7th Cir. 1996) (interpreting predecessor to Rule 807). 

The Reinecke email does not satisfy any of the conditions 

of Rule 807. First, none of the usual “circumstantial guarantees of trustworthiness” are present here. Fed. R. Evid. 

807(a)(1). The statement in this email was not made under 

oath or subject to cross-examination. Nor has Mr. Burton offered any evidence as to Reinecke’s character for truthfulness or as to whether her statement was based on personal 

knowledge. Second, Mr. Burton did not offer the email as 

“evidence of a material fact.” Fed. R. Evid. 807(a)(2). Rather, 
18 No. 18-2059

Mr. Burton sought to introduce the email to show that “Citi 

itself stated that the account was a consumer account.”31 As 

the district court correctly noted, whether the account was a 

consumer account did “not provide a factual dispute of 

whether” the debt was a consumer debt.32 Third, through 

“reasonable efforts,” Mr. Burton could have obtained the 

sworn deposition or in-court testimony of Reinecke or another Citibank representative. Fed. R. Evid. 807(a)(3). Such 

evidence would have been equally as probative, if not more 

probative, than the email because such testimony would 

have been subject to cross-examination about the nature of 

the debt.33 Fourth, Mr. Burton has not demonstrated that 

admitting the Reinecke email will “serve the purposes of 

these rules and the interests of justice.” Fed. R. Evid. 

807(a)(4). Therefore, the district court did not abuse its discretion in excluding the Reinecke email as inadmissible 

hearsay. We do not consider her out-of-court statement in 

support of Mr. Burton’s contention that this was a consumer 

debt.

 

31 R.40 at 6. 

32 R.75 at 11. See, e.g., Toroussian v. Asset Acceptance, LLC, No. CV 

12-03519 DDP (AGRx), 2013 WL 5524831, at *6 (C.D. Cal. Oct. 4, 2013) 

(unpublished) (concluding that evidence that credit card was opened at a 

retail bridal shop was insufficient to create triable issue of fact that debt 

incurred on credit card was consumer debt).

33 Before the district court, counsel for Mr. Burton asserted that the defendants “at every occasion attempted to interfere with [plaintiff’s] taking a deposition of Citi.” R.55-1 at 3. However, Kohn submitted that 

counsel for Mr. Burton “failed to timely depose a Citibank representative 

due solely to his failure to schedule” the deposition. R.58 at 2.
No. 18-2059 19

Finally, Mr. Burton contends that the billing statements 

on the Citibank account demonstrate that the debt in question was consumer debt. Evidence of the types of purchases 

made on the credit card may be relevant to the question 

whether those purchases were made primarily for personal, 

family, or household purposes.34 Here, Mr. Burton introduced billing statements showing that most of the charges 

on the Citibank account were purchases of low dollar 

amounts, under fifty dollars per transaction. The credit card 

was used primarily at gas stations and convenience stores in 

and around Green Bay, Wisconsin. There were also a few 

charges placed at office supply and auto parts stores, a local 

pizza establishment, and the local school district. None of 

these transactions, based on either the amount charged or 

the vendor, obviously signal that these were purchases made 

for a business purpose.

At the same time, however, the billing statements shed 

no light on why these charges were incurred. Given that 

Mr. Burton is unable to explain whether these transactions 

were for a consumer as opposed to a business purpose, the 

billing statements do not provide enough information for a 

trier of fact to conclude these purchases were made for personal, family, or household purposes. Cf. Matin v. Fulton, 

Friedman & Gullace LLP, 826 F. Supp. 2d 808, 812 (E.D. Pa. 

2011) (finding the court “lack[ed] sufficient information to 

determine whether the purchases were made for primarily 

 34 See, e.g., Garcia, 2009 WL 3079962, at *4 (acknowledging that “what the 

credit card was used for ... could perhaps create a fact issue on whether 

that use was primarily for personal, family, or household purposes” 

(emphasis in original)).
20 No. 18-2059

personal, family, or household purposes” based on account 

statement where plaintiff was “unable to recall what purchases she made on her credit card and the purpose for those 

purchases”).35

On this record, therefore, we hold that the district court 

properly determined that Mr. Burton has failed to put forward sufficient evidence to create a triable issue of material 

fact that the debt incurred on the Citibank account was consumer debt. The district court properly granted summary 

judgment in favor of the defendants on Mr. Burton’s FDCPA 

and WCA claims.

Conclusion

Because Mr. Burton failed to present sufficient evidence 

that the debt on the Citibank account was incurred for personal, family, or household purposes, we affirm the judgment of the district court.

AFFIRMED

 35 See also Boosahda, 462 F. App’x at 335 (deferring to the district court’s 

finding, based on the billing statements, “that any or all of the purchases 

could have been business expenses”).