McNamee v. Debski & Associates, P.A.
Filing
38
ORDER: Plaintiff Jacob McNamee's Motion for Summary Judgment (Doc. # 27 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 12/22/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JACOB MCNAMEE,
Plaintiff,
v.
Case No. 8:16-cv-2272-T-33TBM
DEBSKI & ASSOCIATES, P.A.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff Jacob McNamee’s Motion for Summary Judgment (Doc.
#
27),
filed
on
December
2,
2016.
Defendant
Debski
&
Associates, P.A. filed its response in opposition on December
15, 2016. (Doc. # 31). For the reasons below, the Court denies
the Motion.
I.
Background
McNamee was issued a credit card by Capital One Bank, a
non-party to this action. (Doc. # 27-1 at ¶ 4). At some point,
McNamee defaulted on his credit card payments and Capital One
brought suit, which resulted in the entry of a stipulated
judgment in favor of Capital One in the amount of $2,171.57
on May 13, 2009. (Doc. # 1 at ¶¶ 11-12; Doc. # 1-1; Doc. #
27-1 at ¶ 7; Doc. # 23 at ¶¶ 11-12). In 2014, Debski was
instructed by Capital One to no longer seek post-judgment
interest as of November 12, 2014. (Doc. # 31-1 at ¶ 2; Doc.
# 31-2). Then Debski sent McNamee two letters, the first dated
January 8, 2016, and the second dated March 31, 2016. (Doc.
##
31-3,
31-4).
Both
letters
listed
the
amount
due
as
$3,129.05. (Doc. ## 31-3, 31-4). McNamee “never personally
received
any
documentation
or
other
notification
which
informed [him] of the original creditor or Defendant’s intent
to waive the continued accrual of post-judgment interest on
the judgment.” (Doc. # 27-1 at ¶ 8).
On
August
9,
2016,
McNamee
instituted
this
action
pursuant to the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692, et seq. (Doc. # 1). The Complaint alleges Debski
violated § 1692e(2)(A) (Count I), § 1692e(10) (Count II), and
§ 1692f (Count III). (Id.). Debski moved to dismiss the
action, which the Court denied. (Doc. ## 6, 13). Thereafter,
but before Court-ordered mediation occurred, McNamee filed
the pending Motion. (Doc. # 27). Debski timely responded.
(Doc.
#
31).
At
this
juncture,
Court-ordered
mediation
resulted in an impasse (Doc. # 32), and the Motion is ripe
for review.
2
II.
Legal Standard
Summary judgment is appropriate “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). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
3
pleadings,’ and by its own affidavits, or by ‘depositions,
answers
to
interrogatories,
and
admissions
on
file,’
designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists
of
conclusional
However,
nothing
if
“more
allegations,”
the
than
summary
non-movant’s
a
repetition
judgment
is
response
of
not
his
only
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
4
III. Analysis
As a preliminary matter, the Court agrees with Debski
that McNamee’s Motion fails to comply with the undersigned’s
requirements for motions brought under Rule 56. U.S. Dist.
Ct.
M.D.
Covington,
Fla.,
Judicial
Info,
Virginia
Civil
Motions,
Statement
of
M.
Hernandez
Material
Facts,
http://www.flmd.uscourts.gov/JudicialInfo/Tampa/JgCovington
.htm (“The statement of material facts must list each material
fact
alleged
not
to
be
disputed
in
separate,
numbered
paragraphs. . . . Failure to submit a statement of material
facts
constitutes
grounds
for
denial
of
the
motion.”).
Accordingly, the Motion is denied. See Dyck-O’Neal, Inc. v.
England, No. 2:15-cv-27-FtM-38MRM, 2015 WL 6956546, at *1
(M.D. Fla. Nov. 10, 2015) (denying motion for summary judgment
because
it
failed
to
comply
with
court’s
requirements
regarding motions for summary judgment).
Even
if
the
Court
were
to
overlook
McNamee’s
noncompliance, the Motion would still be denied on the merits.
In order to prevail on an FDCPA claim, a plaintiff
must plead and prove three elements. First, the
plaintiff must have been the object of a collection
activity arising from consumer debt. . . . Second,
the defendant must be a debt collector as defined
by the FDCPA. . . . Third, the defendant must have
engaged in an act or omission prohibited by the
FDCPA. . . .
5
Erickson v. Gen. Elec. Co., 854 F. Supp. 2d 1178, 1182 (M.D.
Fla.
2012).
Here,
McNamee
alleges
Debski
violated
§
1692e(2)(A) by falsely representing the character, amount, or
legal status of the debt; Debski violated § 1692e(10) by using
false
representations
or
deceptive
means
to
collect
or
attempt to collect a debt; and Debski violated § 1692f by
using unfair or unconscionable means to collect or attempt to
collect a debt.
The Eleventh Circuit applies the least-sophisticated
standard to evaluate whether a violation of §§ 1692e or 1692f
has occurred. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1193, 1200 (11th Cir. 2010).
“‘The least sophisticated consumer’ can be presumed
to possess a rudimentary amount of information
about the world and a willingness to read a
collection notice with some care.” . . . . However,
the test has an objective component in that
“[w]hile protecting naive consumers, the standard
also
prevents
liability
for
bizarre
or
idiosyncratic
interpretations
of
collection
notices by preserving a quotient of reasonableness
. . . .”
Id. at 1194.
McNamee’s argument that he is entitled to summary as to
his § 1692e claims fails because “[w]hether a particular
communication is false or deceptive is a question for the
jury.” Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268,
6
1274 (11th Cir. 2016) (citing Jeter v. Credit Bureau, Inc.,
760 F.2d 1168, 1178 (11th Cir. 1985)).
Furthermore, McNamee, who bears the burden of proof at
trial, has failed to “show affirmatively the absence of a
genuine issue of material fact . . . support[ed] . . . with
credible evidence . . . that would entitle [him] to a directed
verdict if not controverted at trial.” United States v. Four
Parcels of Real Prop. in Greene & Tuscaloosa Ctys. in Ala.,
941 F.2d 1428, 1438 (11th Cir. 1991) (“In other words, the
moving party must show that, on all the essential elements of
its case on which it bears the burden of proof at trial, no
reasonable
jury
could
find
for
the
nonmoving
party.”)
(citation omitted). McNamee has not produced any evidence
affirmatively showing that the amount listed on the two
letters was false.
In contrast, Debski has submitted an affidavit showing
that
the
creditor
instructed
Debski
to
cease
collecting
interest, which would imply that the amount listed on the two
letters was not false. (Doc. # 31-1). Thus, Debski has “come[]
forward with significant, probative evidence demonstrating
the existence of a triable issue of fact.” Four Parcels of
Real Prop., 941 F.2d at 1438 (citation omitted).
7
The parties also dispute whether the Court should adopt
the reasoning of Avila v. Riexinger & Associates, LLC, 817
F.3d 72 (2d Cir. 2016) (concluding “collection notices . . .
[that] stated only the ‘current balance’ but did not disclose
that the balance might increase due to interest and fees”
violated § 1692e), or that of Dick v. Enhanced Recovery Co.,
LLC, No. 15-cv-2631, 2016 WL 5678556, at *5 (E.D.N.Y. Sept.
28, 2016) (reasoning that Avila does not apply when interest
and fees are not actually accruing). Resolution of that
dispute, however, depends on whether interest was, in fact,
accruing when the two letters were sent. As stated, McNamee
has not shown affirmatively the absence of a genuine issue of
material fact with respect to whether interest was accruing
when the letters were sent and, even if he had, Debski
presented evidence creating a genuine issue of material fact.
As to McNamee’s claim that Debski violated § 1692f, the
Court also finds summary judgment is inappropriate. Section
1692f
prohibits
debt
collectors
from
using
“unfair
or
unconscionable means to collect or attempt to collect a debt.”
§
1692f.
This
section
of
the
FDCPA
“serves
a
backstop
function, catching those ‘unfair practices’ which somehow
manage
to
slip
by
the
reach
8
of
the
FDCPA’s
enumerated
prohibitions.” Brown v. Credit Mgmt., LP, 131 F. Supp. 3d
1332, 1342 (N.D. Ga. 2015).
McNamee’s arguments in support of his Motion merely rely
on the same conduct alleged to have violated §§ 1692e(2)(A)
and 1692e(10). Thus, McNamee has failed to show that he is
entitled to summary judgment as to Count III. See Havison v.
Williams Alexander & Assocs., Inc., No. 15-cv-7059(CCC-SCM),
2016 WL 7018532, at *2 (D.N.J. Nov. 30, 2016); Brown, 131 F.
Supp. 3d at 1342; Miljkovic v. Shafritz & Dinkin, P.A., No.
8:14-cv-635-T-33TBM, 2014 WL 3587550, at *10 (M.D. Fla. July
18, 2014).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Jacob McNamee’s Motion for Summary Judgment
(Doc. # 27) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
22nd day of December, 2016.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?