Calhoun v. Sentry Credit Inc

Filing 38

MEMORANDUM OPINION re: 23 , 29 - For the reasons described above, the Court dismisses Ms. Calhouns claim on behalf of her daughter for a violation of § 1692b and denies Ms. Calhouns motion for summary judgment. Ms. Calhouns claim on behalf of her daughter under § 1692c(b) may proceed. Signed by Judge Madeline Hughes Haikala on 6/11/2019. (KEK)

FILED
2019 Jun-11 PM 12:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ANN CALHOUN, as Personal }
Representative of the Estate of Beverly }
}
Calhoun,
}
}
Plaintiff,
}
}
v.
}
}
SENTRY CREDIT, INC.,

Case No.: 2:18-cv-00222-MHH

Defendant.
MEMORANDUM OPINION
Plaintiff Ann Calhoun, as personal representative of the estate of Beverly
Calhoun, alleges that defendant Sentry Credit violated the Fair Debt Collections
Practices Act’s prohibition against third-party communications by calling her about
her daughter’s consumer debt.

(Doc. 22).1

On behalf of her daughter, Ms.

Calhoun asserts claims under 15 U.S.C. §§ 1692b and 1692c(b). (Doc. 22, pp. 1,
4). Sentry Credit has moved to dismiss Ms. Calhoun’s claims under §§ 1692b and
1692c(b), (Docs. 23, 30), and Ms. Calhoun seeks partial summary judgment on her
claim under § 1692b (Doc. 29). For the reasons discussed below, the Court

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The Court granted Ann Calhoun’s motion to substitute herself as the personal representative of
Beverly Calhoun’s estate following Beverly Calhoun’s death. (Doc. 37). Ms. Calhoun is
Beverley Calhoun’s mother. The Court expresses condolences to Ms. Calhoun for her loss.
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dismisses Ms. Calhoun’s claim under § 1692b and denies Sentry Credit’s motion to
dismiss Ms. Calhoun’s claim under § 1692c(b).
I.

STANDARD OF REVIEW

Rule 12(b)(6) enables a defendant to move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint
against the “liberal pleading standards set forth by Rule 8(a)(2).” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Pursuant to Rule 8(a)(2), a complaint must
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “Specific facts are not necessary; the statement
need only ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’”

Erickson, 551 U.S. at 93 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, (2007)); Twombly, 550 U.S. at 555 (Rule 8 generally
does not require “detailed factual allegations.”).
In deciding a Rule 12(b)(6) motion to dismiss, a court must view the
allegations in a complaint in the light most favorable to the non-moving party.
Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). A court must
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accept well-pleaded facts as true. Grossman v. Nationsbank, N.A., 225 F.3d 1228,
1231 (11th Cir. 2000). In other words, “[o]n a motion to dismiss, the facts stated
in the . . . complaint and all reasonable inferences therefrom are taken as true.”
Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 2006) (citing
Stephens v. Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir.
1990)). Nevertheless, on a motion to dismiss, courts “are not bound to accept as
true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986).
Pursuant to this standard, the Court describes the facts alleged in the second
amended complaint in the light most favorable to Ms. Calhoun.
II.

BACKGROUND

Sentry Credit, Inc. is a debt collector subject to the provisions of the Fair
Debt Collection Practices Act. (Doc. 22, p. 2, ¶ 3). On January 16, 2018, Sentry
Credit sent a collection letter to Beverly Calhoun for a $12,502.92 debt that she
incurred relating to her purchase of a vehicle. (Doc. 22, p. 3, ¶¶ 7-9). Three days
later, Sentry Credit called Beverly Calhoun’s home and left a message asking her
to contact Barbara Brown, a representative of Sentry Credit. (Doc. 22, p. 3, ¶ 10).
Beverly Calhoun returned Ms. Brown’s call and informed Ms. Brown that she was
bed-ridden and would contact her after she recovered. (Doc. 22, p. 3, ¶ 11).
Beverly Calhoun provided Ms. Brown with a return phone number. (Doc. 22, p. 33

4, ¶ 11). After not hearing from Beverly Calhoun for three days, Ms. Brown called
Beverly Calhoun and left a message. (Doc. 22, p. 4, ¶ 12).
On January 30, 2018, Ms. Brown called Beverly’s mother. Ms. Brown’s
conversation with Ms. Calhoun proceeded as follows:
Answerer

Hello

Caller:

Hi. Beverly?

Answerer:

No.

Caller:

Can I speak with Beverly please?

Answerer:

You must have the wrong number.

Caller:

Oh, I am looking for Beverly Calhoun.

Answerer:

Now that’s my daughter but she doesn’t live here.

Caller:

Oh. Do you know how to get in touch with her?

Answerer:

I would have to get – I am sick but I would have to get up
out of bed to get her phone number because I don’t know
it right off. What can I help you with honey?

Caller:

Well, it’s an important personal matter of hers. I am
trying to reach her.

Answerer:

Is this about that Serra thing?

Caller:

Uh, no. No, this isn’t regarding –

Answerer:

Those people are dirty and have done everything to her.

Caller:

I don’t know who Serra is. No, ma’am - No. I need – I
don’t know who Serra is, I have no idea -

Answerer:

Sorry, I can’t talk to you

(Doc. 22, p. 4, ¶ 13; see Doc. 22-1). This call to Ms. Calhoun forms the basis of
her daughter’s FDCPA claim against Sentry Credit.

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III.

DISCUSSION

Congress enacted the FDCPA to “eliminate abusive debt collection practices
by debt collectors . . . [and] to protect consumers against debt collection abuses.”
15 U.S.C. § 1692(e). In her representative capacity, to state a claim under the
FDCPA, Ms. Calhoun must allege that (1) her daughter was “the object of
collection activity arising from a consumer debt,” (2) Sentry Credit “is a debt
collector as defined by the statute,” and (3) Sentry Credit “has engaged in an act or
omission prohibited by the FDCPA.” Helman v. Bank of Am., 685 Fed. Appx. 723,
726 (11th Cir. 2017) (internal quotations omitted). 2 A “single violation of the
statute is sufficient to establish civil liability.” Graveling v. BankUnited N.A., 970
F. Supp. 2d 1243, 1255 (N.D. Ala. 2013), aff’d sub nom. Graveling v. Castle
Mortg. Co., 631 Fed. Appx. 690 (11th Cir. 2015) (internal citation omitted). On
behalf of her daughter, Ms. Calhoun alleges that Sentry Credit’s call to her seeking
information about her daughter is an act prohibited under sections 1692b and
1692c(b) of the FDCPA. (Doc. 22, pp. 4-5, ¶¶ 14-17).
Section 1692c(b) of the FDCPA generally prohibits debt collectors from
contacting third parties regarding the collection of a consumer’s debt. 15 U.S.C. §

2

Ms. Calhoun has adequately alleged the first two elements because she has alleged that Sentry
Credit is a debt collector under the FDCPA and that Sentry Credit engaged in collection activity
regarding her daughter’s personal consumer debt. (Doc. 22, pp. 2-4, ¶¶ 4, 6-14).
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1692c(b); Edwards v. Niagra Credit Solutions, Inc., 584 F.3d 1350, 1353 (11th
Cir. 2009). Section 1692c(b) states:

Except as provided in section 1692b of this title, without the prior
consent of the consumer given directly to the debt collector, or the
express permission of a court of competent jurisdiction, or as
reasonably necessary to effectuate a postjudgment judicial remedy, a
debt collector may not communicate, in connection with the collection
of any debt, with any person other than the consumer, his attorney, a
consumer reporting agency if otherwise permitted by law, the creditor,
the attorney of the creditor, or the attorney of the debt collector.

15 U.S.C. §§ 1692c(b). Section 1692b, the “exception” to otherwise prohibited
third-party communications, allows third-party communications “for the purpose
of acquiring location information about the consumer.”

15 U.S.C. § 1692b.

Section 1692b has thus been described as a “‘safe harbor’ provision, setting forth
the limited circumstances under which a debt collector may have contact with third
parties . . . without violating the FDCPA’s general proscription against such
communications.” Litt v. Portfolio Recovery Assocs. LLC, 146 F. Supp. 3d 857,
866 (E.D. Mich. 2015).
A. Section 1692b
The Court grants Sentry Credit’s motion to dismiss Ms. Calhoun’s claim
under §1692b because §1692b is an affirmative defense to a claim for a violation
of §1692c(b); §1692b does not provide an independent basis for an FDCPA claim.
Evankavitch v. Green Tree Servicing, LLC,793 F.3d 355 (3d Cir. 2015). If a debt
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collector attempts to collect location information but does not comply with §1692b
in doing so, then the debt collector may not avail itself of §1692b’s affirmative
defense, and the debt collector may be liable for a violation of §1692c(b). Thomas
v. Consumer Adjustment Co., Inc., 579 F. Supp. 2d 1290, 1298 (E.D. Mo. 2008)
(“Noncompliance with § 1692b is [] a violation of § 1692c(b), and not an
independent violation” of the FDCPA); Morant v. Miracle Financial, Inc., 2012
WL 4174893, *3 (E.D.N.Y. Sept. 17, 2012) (same).
B. Section 1692c(b)
As stated above, § 1692c(b) of the FDCPA prohibits debt collectors from
communicating with third parties “in connection with the collection of any debt.”
See infra Part III, pp. 5-6. The FDCPA defines communication as “the conveying
of information regarding a debt directly or indirectly to any person through any
medium.” 15 U.S.C. § 1692a(2). This includes telephone calls.
Sentry Credit argues that its telephone call to Ms. Calhoun was not a
communication within the meaning of the FDCPA because Ms. Calhoun has not
alleged that anything “related to the debt was discussed.” (Doc. 23, p. 5). Sentry
Credit’s interpretation of the definition of “communication” is too narrow. “The
definition of communication is very broad.” Caceres v. McCalla Raymer, LLC,
755 F.3d 1299, 1302 (11th Cir. 2014). As the Eleventh Circuit has explained:
[T]he only requirement of the information that is to be conveyed is
that it must be regarding a debt. [B]y choosing to omit any qualifier
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other than requiring that the call must be regarding a debt, Congress
meant to allow any information, as long as it regards a debt. There is
no requirement . . . that the information must be specific or thorough .
. . to be considered a communication.
Hart v. Credit Control, LLC, 871 F.3d 1255, 1258 (11th Cir. 2017) (emphasis in
original);3 see Edwards v. Niagara Credit Sols., Inc., 586 F. Supp. 2d 1346, 1358
(N.D. Ga. 2008), aff’d on other grounds, 584 F.3d 1350 (11th Cir. 2009)
(voicemail referencing an “important matter” without specifically conveying
information about the debt could constitute a communication).
Under the broad definition of communication, the Court finds that Ms.
Calhoun has sufficiently alleged that Sentry Credit communicated with a third
party in violation of § 1692c(b). Ms. Calhoun alleges that Ms. Brown called her
regarding Beverly Calhoun’s consumer debt. (Doc. 7, p. 4, ¶ 15). The telephone
call transcript reveals that Ms. Brown asked to speak with Beverly Calhoun five
times. (Doc. 22-1, pp. 1-2). Like the debt collector in Edwards, according to the
allegations in the second amended complaint, Ms. Brown told a third party, Ms.
Calhoun, that the telephone call was in a reference to “an important personal
matter of [Beverly Calhoun].” (Doc. 22-1, p. 2).

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The issue before the Hart court was “whether a voicemail left by a debt collector constitutes a
‘communication’” under the FDCPA. Hart, 871 F. 3d at 1256. The Hart court’s broad
interpretation of “communication” under the FDCPA nonetheless provides guidance on the issue
of whether a telephone call to a third party constitutes a communication when the debt collector
argues that the telephone call is not a communication because it did not “convey[ ] information
regarding a debt,” as is the case here.
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Accordingly, the Court finds that Ms. Calhoun has sufficiently pleaded that
Sentry Credit’s telephone call was a “communication” under the FDCPA because
the call regarded a debt. Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1302
(11th Cir. 2014). The Court denies Sentry Credit’s motion to dismiss the claim
that Ms. Calhoun asserts under §1692c(b) on behalf of her daughter.
C.

Ms. Calhoun’s Partial Motion for Summary Judgment

Ms. Calhoun seeks partial summary judgment against Sentry Credit for
Sentry Credit’s alleged violation of § 1692b.

(Doc. 29).

As discussed,

noncompliance with § 1692b is “a violation of § 1692c(b), and not an independent
violation of the Act.” Thomas, 579 F. Supp. 2d at 1298. Therefore, the Court
denies Ms. Calhoun’s motion for partial summary judgment.
IV.

CONCLUSION

For the reasons described above, the Court dismisses Ms. Calhoun’s claim
on behalf of her daughter for a violation of § 1692b and denies Ms. Calhoun’s
motion for summary judgment. Ms. Calhoun’s claim on behalf of her daughter
under § 1692c(b) may proceed.
DONE and ORDERED this June 11, 2019.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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