IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SARA SURBER, individually and 

on behalf of all similarly situated

individuals, 

)

)

)

)

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 14-0309-CG-M

)

MCCARTHY, BURGESS & WOLFF, 

INC.,

)

)

)

)

Defendant. )

ORDER

McCarthy, Burgess & Wolff, Inc. (“Defendant”) and Sara Surber 

(“Plaintiff”) ask this Court to determine certain legal issues pursuant to the 

Fair Debt Collection Practices Act (“FDCPA”) based on the underlying 

stipulated facts. (Doc. 34-1; Doc. 39-1). Defendant moved for summary 

judgment, and specifically asks the Court to decide whether Plaintiff incurred

a “debt” as defined by the FDCPA. (Doc. 33, p. 3). Plaintiff responded to the 

motion for summary judgment, and asserts the “only thing at issue is 

whether the ‘charge back’ constitutes a transaction as that term is used in 

the FDCPA.” (Doc. 38, p. 2). Defendant replied (Doc. 40), and filed a motion to 

strike Plaintiff’s affidavit from her response. (Doc. 41). Plaintiff filed a 

response in opposition to Defendant’s motion to strike. (Doc. 44). After careful 

consideration and for the reasons set forth below, Defendant’s motion for 

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summary judgment is due to be GRANTED, and Defendant’s motion to 

strike is due to be DENIED.

I. FACTS

The pertinent facts are not in dispute. In January 2012, Plaintiff 

entered into an “Agent Contract” with Banker’s Life & Casualty Company 

(“Banker’s Life”) to sell insurance. (Doc. 39-1, p. 1). Banker’s Life 

compensated Plaintiff by paying commission “as set forth in the attached 

Commission Schedules” to the contract. (Doc. 39-1, p. 5). The Commission 

Schedule and Commission Schedule Notes describe how commissions are 

“allowed on premiums paid for policies and riders approved and issued by 

[Banker’s Life] and accepted by the applicant.” (Doc. 39-1, p. 15). Plaintiff 

attests that if a policy lapsed before the policyholder paid the entire 

premium, Banker’s Life “charged back” a pro-rata portion of the commission 

from Plaintiff. (Doc. 39-2, p. 1). 

Banker’s Life and Plaintiff terminated their contract on October 4, 

2012. (Doc. 39-1, p. 1). Upon termination of the Agent Contract, Banker’s Life 

alleged Plaintiff owed it an outstanding balance as a result of overpaid 

commissions, or “charge backs,” that she did not earn after customers failed 

to pay their insurance premiums. (Doc. 39-1, pp. 1 – 2). Banker’s Life 

retained Defendant, a debt collection agency, to collect repayment of the 

alleged overpayment of unearned commissions from Plaintiff. (Doc. 39-1, p. 

2). Defendant and Plaintiff agree that the “outstanding balance in dispute” 

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“is not the result of an outstanding bill or debt owed for goods or services 

provided by [Banker’s Life] to [Plaintiff].” (Doc. 39-1, p. 2). Plaintiff states she 

used her commission from Banker’s Life for personal expenses, such as her 

“rent, cell phone bill, auto insurance, vehicle maintenance and repairs, 

gasoline, food, groceries, and other personal bills and expenses.” (Doc. 39-2, p. 

2). Defendant claims to have no knowledge upon which to admit this as a 

fact. (Doc. 39-1, p. 3). The parties ultimately disagree as to whether the 

FDCPA applies to the “charge backs” at issue. 

II. STANDARD OF REVIEW

The court may grant summary judgment “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). The substantive law 

applicable to the case determines what is material. Lofton v. Sec’y of Dep’t of 

Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004), cert. den., 534 

U.S. 1081 (2005). If the nonmoving party fails to make “a sufficient showing 

on an essential element of her case with respect to which she has the burden 

of proof,” the moving party is entitled to summary judgment. Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). 

In evaluating the movant’s arguments, the court must view all 

evidence and resolve all doubts in the light most favorable to the nonmovant. 

Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If 

reasonable minds might differ on the inferences arising from undisputed 

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facts, then [the court] should deny summary judgment.” Hinesville Bank v. 

Pony Express Courier Corp., 868 F.2d 1532, 1535 (11th Cir. 1989) (citation

omitted). The basic issue before the court then is “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether 

it is so one-sided that one party must prevail as a matter of law.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). The mere existence of any 

factual dispute will not automatically necessitate denial of a motion for 

summary judgment; rather, only factual disputes that are material preclude 

entry of summary judgment. Lofton, 358 F.3d at 809.1

III. ANALYSIS

a. Motion to Strike

Defendant moves the Court to strike Plaintiff’s affidavit (Doc. 41), 

which she submitted in response to Defendant’s motion for summary 

judgment. (Doc. 39-2). Plaintiff’s affidavit is brief, and it explains how 

Banker’s Life compensated her and how she used her commission payments. 

(Doc. 39-2, pp. 1 – 2). Defendant argues the affidavit is outside the scope of 

the parties’ stipulated facts. (Doc. 41, p. 2). Defendant also states, however, 

that “paragraph 16 of the Stipulation specifically references Surber’s 

 1 The “least sophisticated consumer” standard analyzes whether a debt 

collector’s practices would deceive or mislead a hypothetical least 

sophisticated consumer. Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1175-

1176 (11th Cir.1985). The least sophisticated consumer standard does not 

change the standard of review for summary judgment in this case. 

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contentions with regard to the commission payments made to her by 

[Banker’s Life] and it was acknowledged the Defendant...had no knowledge 

upon which to admit such facts to be true so they would not be deemed 

admitted.” (Doc. 41, p. 2). Defendant further argues the parties discussed this 

issue in a conference call with the Magistrate Judge, and they agreed such 

facts would not be included within the Stipulation of Facts. (Doc. 41, p. 2).

In response, Plaintiff asserts the motion to strike is procedurally 

improper, and cites Federal Rules of Civil Procedure 7(a), 12(f), and 56(c)(4)

to support her argument. (Doc. 44, p. 2). Plaintiff also notes Defendant did 

not cite a single rule or case law in its motion to strike. (Doc. 44, p. 2). 

Plaintiff further argues the parties were unable to stipulate to certain facts, 

and the Magistrate Judge instructed Plaintiff to file an affidavit at the 

summary judgment stage regarding the unstipulated facts. (Doc. 44, p. 3). 

The Court finds that the affidavit is relevant and based on the 

personal knowledge of Plaintiff. The Court also finds the affidavit is not 

barred simply because the parties could not agree to the particular facts 

Plaintiff alleges in her affidavit. Moreover, the parties already state in their 

stipulated facts that Plaintiff used her commission primarily for personal, 

family, or household purposes, and Defendant cannot admit these facts as 

true because it does not know how Plaintiff spent her money. (Doc. 39-1, p. 3). 

Plaintiff merely provides more specificity about her expenses in her affidavit. 

(Doc. 39-2, p. 2). The Court acknowledges Defendant cannot admit these facts

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as true, but the Court finds Defendant’s reasons for striking the affidavit 

unpersuasive. The motion to strike (Doc. 41) is therefore DENIED. 

b. Fair Debt Collection Practices Act 

Congress enacted the FDCPA to “eliminate abusive debt collection 

practices by debt collectors.” 15 U.S.C. § 1692(e). Among other things, the 

FDCPA provides a remedy for consumers2 subjected to abusive, deceptive, 

and unfair debt collection practices by debt collectors. See LeBlanc v. Unifund 

CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010). A threshold requirement 

for application of the FDCPA is whether the prohibited practices are used in 

an attempt to collect a “debt.” Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 836 

– 37 (11th Cir. 2010) (to recover under the FDCPA, a plaintiff must make a 

threshold showing that the money being collected qualifies as a “debt”). 

For FDCPA purposes, the mere obligation to pay does not constitute a 

debt; rather, a “debt” is “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, whether or not such obligation 

has been reduced to judgment.” 15 U.S.C. § 1692a(5). The term “consumer”

means “any natural person obligated or allegedly obligated to pay any debt.” 

 2 When enacting the FDCPA, Congress stated “[t]his bill applies only to 

debts contracted by consumers for personal, family, or household purposes; it 

has no application to the collection of commercial accounts.” S. Rep. No. 95-

382, at 3 (1977), reprinted in U.S.C.C.A.N. 1695, 1697.

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15 U.S.C. § 1692a(3). The term “transaction” is not defined in the FDCPA. At 

a minimum, however, “a ‘transaction’ must involve some kind of business 

dealing or other consensual obligation.” Oppenheim, 627 F.3d 833, 838 (11th 

Cir. 2010) (citation omitted). Thus, as the Eleventh Circuit succinctly noted, 

the FDCPA applies to payment obligations of a (1) consumer arising out of a 

(2) transaction in which the money, property, insurance, or services at issue 

are (3) primarily for personal, family, or household purposes. Id. at 837. The 

Court must analyze each of the three elements separately to determine 

whether a payment obligation constitutes a “debt” under the FDCPA. Id.

The term “debt” therefore limits the scope of the FDCPA because not 

all obligations to pay satisfy each of the three definitional elements. Bass v. 

Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1324 (7th Cir. 

1997); see also Ladick v. Van Gemert, 146 F.3d 1205, 1206–07 (10th Cir. 

1998) (not all obligations are “debts” under the FDCPA because the money, 

property, insurance, or services that are the subject of the transaction must 

be primarily for “personal, family, or household purposes”). Courts have

considered whether a number of particular obligations constitute a debt for 

purposes of the FDCPA.3 A review of case law shows FDCPA “debts” may 

 3 See, e.g., Hawthorne v. Mac Adjustment Inc., 140 F.3d 1367, 1371 (11th Cir. 

1998) (holding that obligation to pay damages arising from tort was not a 

“transaction” under the FDCPA); Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir. 

1998) (holding that personal property taxes were not “debt” because they did 

not arise from a transaction); Mabe v. G.C. Servs. Ltd. P’ship, 32 F.3d 86, 88 

(4th Cir. 1994) (holding that child support payments were not “debt” because 

they were “not incurred to receive consumer goods or services”); Zimmerman 

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include federal student loans, membership dues in a recreational 

campground, a patient’s account at a medical center, an insurer’s contractbased subrogation claim, rental obligations, mortgage foreclosure, and 

homeowners’ association fees.4 In contrast, certain dishonored checks, legal 

fees in post-divorce litigation, library fines, equipment lease obligations, 

loans for venture capital, and tax obligations are not “debts” under the 

FDCPA.5 The parties in this case similarly ask the Court to decide whether 

the alleged commission obligation qualifies as a “debt” under the FDCPA. 

c. Commission Payments did not arise from a Consumer 

Transaction

 

v. HBO Affiliate Grp., 834 F.2d 1163, 1168 (3d Cir. 1987) (holding that 

plaintiff who illegally stole television signals could not assert FDCPA claim 

due to lack of contractual relationship).

4 Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1124 (11th Cir. 2004) 

(student loans); Dorsey v. Morgan, 760 F. Supp. 509, 514 (D. Md. 1991) 

(campground membership dues); Adams v. Law Offices of Stuckert & Yates, 

926 F. Supp. 521, 526 (E.D. Pa. 1996) (patient account); Hamilton v. United 

Healthcare of Louisiana, Inc., 310 F.3d 385 (5th Cir. 2002) (group health 

insurer’s contract-based subrogation claim); Romea v. Heiberger & 

Associates, 163 F.3d 111, 115 – 16 (2d Cir. 1998) (back rent); Glazer v. Chase 

Home Fin. LLC, 704 F.3d 453, 461 (6th Cir. 2013) (mortgage foreclosure);

Ladick v. Van Gemert, 146 F.3d 1205, 1207 (10th Cir. 1998) (condominium 

assessment). 

5 Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 407 (3d Cir. 2000) 

(dishonored checks are not debts) but see Bass v. Stolper, Koritzinsky, 

Brewster & Neider, S.C., 111 F.3d 1322, 1323 (7th Cir. 1997) (dishonored 

checks are “debts” under FDCPA); Beal v. Himmel & Bernstein, LLP, 615 F. 

Supp. 2d 214, 217 (S.D.N.Y. 2009) (legal fees incurred in post-divorce 

litigation); Riebe v. Juergensmeyer & Associates, 979 F. Supp. 1218, 1221 

(N.D. Ill. 1997) (library fines); Hardy v. N. Leasing Sys., Inc., 953 F. Supp. 2d 

150, 161 (D.D.C. 2013) (equipment leases); Bloom v. I.C. Sys., Inc., 972 F.2d 

1067, 1069 (9th Cir. 1992) (loan for venture capital); Boyd v. J.E. Robert Co., 

765 F.3d 123, 126 (2d Cir. 2014) (water and sewer liens, like tax liens, are 

outside the scope of the FDCPA). 

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The Court first considers whether this case concerns a “consumer” debt 

arising out of a “transaction” involving money, property, insurance or 

services. Oppenheim, 627 F. 3d at 837. Plaintiff argues the debt falls under 

the FDCPA because it arose out of a transaction between parties to a contract 

(Doc. 38, p. 8), and she “used the commissions she earned for her ordinary 

living expenses such as groceries, gasoline, insurance, rent, and utilities.” 

(Doc. 38, p. 7). Defendant maintains the outstanding balance in dispute “is 

not the result of an outstanding bill or debt owed for goods or services 

provided by [Banker’s Life] to [Plaintiff],” therefore it is not a “debt.” (Doc. 33, 

p. 7). 

As other courts have recognized, the FDCPA “contemplates that the 

debt has arisen as a result of the rendition of a service or purchase of 

property or other item of value.” Staub v. Harris, 626 F.2d 275 (3d Cir. 1980). 

FDCPA “debts” thus require a consumer obligation created through the 

underlying transaction. See, e.g., Brown v. Budget Rent-A-Car Sys., Inc., 119 

F.3d 922, 924 (11th Cir. 1997) (as long as the transaction creates an 

obligation to pay, a debt is created); Cook v. Hamrick, 278 F. Supp. 2d 1202, 

1205 (D. Colo. 2003) (collecting cases and finding a “debt” is created when a 

transaction creates an obligation to pay). 

In this case, the Court finds there is not a consumer transaction that

creates a “debt” under the FDCPA. Although Plaintiff received money 

pursuant to a contract, this is not a consumer transaction involving the 

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purchase of goods, services, or other item of value. Instead, an employer, 

Banker’s Life, paid an independent contractor, Plaintiff, commission. 

Defendant and Plaintiff also expressly agreed that the money owed “is not 

the result of an outstanding bill or debt owed for goods or services provided 

by [Banker’s Life] to [Plaintiff].” (Doc. 39-1, p. 2).

Furthermore, Plaintiff’s obligation did not arise when she used the 

money to buy groceries, gasoline, or pay rent. Rather, the debt arose because 

Banker’s Life allegedly paid Plaintiff more commission than she earned. This 

is plainly a commercial transaction that falls outside the type of consumer 

transaction contemplated by the FDCPA. See Graham v. Tasa Grp., Inc., 

2015 WL 875228, at *12 (N.D. Ala. Mar. 2, 2015) (debts arising out of 

commercial or business transactions generally fall outside the FDCPA). 

Plaintiff, however, conflates the initial transaction, i.e., getting paid as an 

independent contractor, with later transactions, i.e., using the money to buy 

goods. Simply because Plaintiff attests she used her earnings to pay her 

ordinary living expenses does not convert the original transaction, receiving 

commission payments, into a consumer transaction that creates a “debt” 

under the FDCPA. 

Additionally, both parties cite Arnold v. Truemper, 833 F. Supp. 678 

(N.D. Ill. 1993) and Orenbuch v. Leopold, Gross & Sommers, 586 F. Supp. 2d 

105 (E.D.N.Y. 2008), to argue their respective legal positions. (Doc. 33, pp. 5 –

6; Doc. 38, pp. 8 – 9). Defendant states these two cases show that mere 

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“overpayments,” like unearned commissions, do not fall into the purview of 

the FDCPA. (Doc. 33, p. 6). Plaintiff contends the two cases are 

distinguishable because there is no overpayment here, and the debt arose out 

of a transaction between parties to a contract. (Doc. 38, pp. 8 – 9). The 

Eleventh Circuit previously noted that Arnold and Orenbuch did not involve 

a contract that created an obligation to pay. Oppenheim, 627 F.3d at 838 

(there is no indication that the plaintiffs in Arnold or Orenbuch had a 

contractual obligation dictating their liability in the event of any 

overpayment). Yet the Eleventh Circuit went on to say, “Arnold and 

Orenbuch do not stand for the proposition that one who improperly receives 

money does not incur a ‘debt’ subject to the FDCPA. Rather, they stand for 

the proposition that a consumer’s obligation must arise from a ‘transaction’ in 

order for the FDCPA to apply.” Oppenheim, 627 F.3d at 838. This Court 

agrees that the FDCPA requires a consumer “transaction,” and based on the 

stipulated facts a consumer transaction did not occur. 

Plaintiff also argues that courts “look at the purpose for which money, 

goods, or services were used when determining the purpose of a transaction.” 

(Doc. 38, p. 9). Thus in cases involving loans, extensions of credit, or credit 

cards, courts may examine whether the money is used for business or 

personal items. (Doc. 38, pp. 9 – 10). But this case does not involve a loan or 

an extension of credit. It involves only Banker’s Life paying commission to 

Plaintiff, and Plaintiff possibly receiving more commission than she is owed. 

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Those are the confines of the underlying transaction. Plaintiff did not agree 

to a loan, or make charges on a credit card that she is obligated to repay. As a 

result, the Court does not need to analyze whether Plaintiff spent her money 

on personal, family, or household goods or services. See Oppenheim, 627 F.3d 

at 838 (citations omitted).

The Court does not opine on whether Plaintiff actually owes the 

“charge backs” to Banker’s Life. The Agent Contract and Commission 

Schedules are opaque (Doc. 39, Exh. 1), and the parties have not asked the 

Court to resolve that issue. Instead, the Court finds merely that Plaintiff is 

not a consumer involved in a transaction with Banker’s Life for goods or 

services, so the alleged outstanding balance does not amount to a debt under 

the FDCPA. 

CONCLUSION

In light of the foregoing, Defendant’s motion for summary judgment is 

GRANTED. (Doc. 33). Defendant’s motion to strike is DENIED. (Doc. 41). 

DONE and ORDERED this 11th day of May, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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