Cavero v. Franklin Collection Service Inc.

Filing 43

ORDER granting 36 Motion for Summary Judgment. Signed by Judge Cecilia M. Altonaga on 1/31/2012. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 11-22630-CIV-ALTONAGA/Simonton
EDILBERTO I. CAVERO,
Plaintiff,
vs.
FRANKLIN COLLECTION
SERVICE INC.,
Defendant.
_________________________/
ORDER
THIS CAUSE came before the Court on Defendant, Franklin Collection Service, Inc.’s
(“Franklin[’s]”) Renewed and Amended Motion for Summary Judgment on All Counts of the
Complaint (“Motion”) [ECF No. 36], filed January 12, 2012. Franklin filed an accompanying
Statement of Material Facts (“SMF”) [ECF No. 37] with the Motion. Plaintiff, Edilberto I.
Cavero (“Cavero”), opposed the Motion (“Response”) [ECF No. 42] on January 30, 2012, with a
statement of facts in opposition (“SMFO”). The Court has carefully considered the parties’
written submissions, the record, and the applicable law.
I.

BACKGROUND1

Cavero, proceeding pro se, filed his original complaint [ECF No. 1] on July 25, 2011, and
an Amended Complaint (“Complaint”) [ECF No. 27] on November 15, 2011, alleging three
counts: (1) violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(a)
et seq.; (2) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq.; and (3) violation of the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. §
1

Unless otherwise noted, the facts are undisputed.

Case No. 11-22630-CIV-ALTONAGA/Simonton

559.55 et seq. (See Compl.). He alleges Franklin “violated such laws by repeatedly harassing
Plaintiff in attempts to collect alleged but nonexistent debt.” (Id. ¶ 2). Between April 30, 2011,
and July 5, 2011, Franklin allegedly called Cavero’s cell phone 19 times using an automatic
dialing system and left recorded messages. (See id. ¶¶ 8–10).
Franklin collects consumer debts for third parties, including AT&T. (See SMF ¶ 1). In
2001, AT&T established an account for Cavero, providing him with landline telephone and
internet service and equipment between July 11, 2001 and January 4, 2004. (See id. ¶ 2).
AT&T’s records show Cavero provided AT&T with the number xxx-xxx-7615 as his “Can Be
Reached” (“CBR”) number, or the number at which he could be reached by AT&T with respect
to his account. (See id. ¶ 6). Franklin asserts that when Cavero’s service was terminated in
2010, Cavero owed AT&T $215.01 for service and equipment, reflected in AT&T’s last bill to
Cavero dated March 7, 2010; Cavero disputes this fact, stating that Franklin “never verified
alleged debt.” (See id. ¶ 7; SMFO ¶ 7). According to Franklin, on December 4, 2010, AT&T
placed the debt with Franklin for collection; Cavero disputes this fact as being based on
“Uncertified Records from AT&T.” (See SMF ¶ 8; SMFO ¶ 8). Franklin eventually called
Cavero at his CBR number. (See SMF ¶ 13). Cavero told Franklin he disputed owing a debt to
AT&T, and Franklin was unable to collect any debt from him. (See id. ¶ 14). Franklin closed its
file on Cavero on July 6, 2011, without having collected the debt. (See id.). The cell number
which is the subject of Cavero’s claims is CBR number xxx-xxx-7615. (See id. ¶ 20).
On November 28, 2011, Franklin served Cavero with an Offer of Judgment on his claims
as set forth in Counts II and III. (See id. ¶ 21). The Offer of Judgment offers Cavero $2,000.00
in settlement of his claims in Counts II and III, as well as “costs and such other relief as the

2

Case No. 11-22630-CIV-ALTONAGA/Simonton

Court may determine he is entitled to on his claims for violations of the FDCPA and FCCPA.”
(Id. ¶ 22).
II.

LEGAL STANDARD

Summary judgment shall be rendered “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c). In making its assessment of summary judgment, the Court
“must view all the evidence and all factual inferences reasonably drawn from the evidence in the
light most favorable to the nonmoving party,” Stewart v. Happy Herman’s Cheshire Bridge, Inc.,
117 F.3d 1278, 1285 (11th Cir. 1997), and “must resolve all reasonable doubts about the facts in
favor of the non-movant.” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of America, 894
F.2d 1555, 1558 (11th Cir. 1990).
“By its very terms, this standard provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). “As to materiality, the
substantive law will identify which facts are material. Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
Likewise, a dispute about a material fact is a “genuine” issue “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
The moving party “always bears the initial responsibility of informing the district court of

3

Case No. 11-22630-CIV-ALTONAGA/Simonton

the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Summary judgment is proper “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Id. at 322. In those cases, there is no genuine issue
of material fact “since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.
III.

ANALYSIS

Franklin contends it is entitled to summary judgment in its favor on all three claims in the
Complaint. The Court addresses the merits of Franklin’s arguments below.
A.

Count I — Violations of the TCPA

To demonstrate a violation of the TCPA, Cavero must show Franklin called his cell
phone, without his “prior express consent,” using an “automatic telephone dialing system or an
artificial or prerecorded voice.” 47 U.S.C. § 2279(b)(1)(A). Cavero alleges Franklin called his
cell phone 19 times “with no prior permission given by Plaintiff” and left recorded messages on
the cell phone without express permission, in violation of the TCPA. (See Compl. ¶¶ 8–15).
Franklin contends the undisputed facts show it met all the statutory requirements of the
TCPA in calling Cavero. Franklin does not dispute it called Cavero’s cell phone using an
automated system — rather, at issue is whether Cavero provided his express prior consent.
Franklin asserts it is entitled to summary judgment on Count I because Cavero expressly
consented to being contacted at the CBR cell number regarding the debt at issue. (See Mot. 7).

4

Case No. 11-22630-CIV-ALTONAGA/Simonton

Franklin notes the TCPA gives the Federal Communications Commission (“FCC”) rule-making
authority to prescribe regulations and implement the TCPA’s provisions on automated phone
calls. (See id. 8 (citing 47 U.S.C. § 2279(b)(2))). On January 4, 2008, the FCC adopted
Declaratory Ruling 07-232, stating:
[A]utodialed and prerecorded message calls to wireless numbers
provided by the called party in connection with an existing debt are
made with the “prior express consent” of the called party, we
clarify that such calls are permissible. We conclude that the
provision of a cell phone number to a creditor, e.g., as part of a
credit application, reasonably evidences prior express consent by
the cell phone subscriber to be contacted at that number regarding
the debt.
(Id. (quoting Mot. Ex. A, In re Rules and Regulations Implementing the Tel. Consumer Prot. Act
of 1991, 23 FCC Rcd. 559 (F.C.C. 2008) (“Decl. Ruling 07-232”) [ECF No. 36-1])). Therefore,
if Cavero provided a creditor such as AT&T with his cell phone number, he provided express
consent to be called by Franklin in connection with a debt owed to AT&T.
The Court agrees with Franklin that the undisputed facts militate toward summary
judgment in Franklin’s favor. The Court finds no genuine issue of fact as to whether AT&T is
Cavero’s creditor. Although Cavero disputes that he owes AT&T a debt as reflected in his bill of
March 8, 2010, he bases his dispute on the mere contention that Franklin “never verified” the
debt when asked. (SMFO ¶ 7). Cavero does make a general statement that “Uncertified Records
do not prove anything” (id. ¶ 5), but offers no reason to question the validity of the exhibits
Franklin attaches to the SMF. These exhibits include the March 8, 2010 bill (see [ECF No. 372]), and the Court can see no reason it would not be admissible as a business record — it is
unclear what Cavero means by an “uncertified record.”
Cavero disputes that he provided AT&T with his cell phone number because the
5

Case No. 11-22630-CIV-ALTONAGA/Simonton

affidavits Franklin attaches in support do not meet procedural requirements. (See Resp. 4).
According to Cavero, the affidavits are not made with personal knowledge and rely on business
records not sworn, certified, or attached to the affidavits. (See id. 4–7). Both affiants, however,
clearly state they speak to matters within their personal knowledge and from business records,
which are in fact attached. (See [ECF Nos. 37-1–3]). Moreover, in the SMFO Cavero explicitly
states that he does not dispute that he provided AT&T with his cell phone number, xxx-xxx7615, as the number at which he could be reached with respect to his AT&T account. (See SMF
¶ 6; SMFO ¶ 6). The Court finds no genuine dispute over whether Cavero provided AT&T with
his cell phone number — the record establishes he did.
Since, as stated, there is no issue of fact as to whether AT&T was Cavero’s creditor, and
whether Cavero gave AT&T his cell phone number, Cavero provided the consent necessary
under the TCPA to be called by Franklin with respect to his debt to AT&T. Cavero cannot
prevail on Count I as a matter of law, and the Court therefore grants summary judgment in favor
of Franklin on this claim.
B.

Counts II and III — Violations of the FDCPA and FCCPA

Franklin next contends it is entitled to summary judgment on Counts II and III because
they are moot. In Count II, Cavero alleges Franklin violated the FDCPA by, inter alia, “making
the phone to [sic] ring many times to harass, oppress and abuse consumer[,] . . . causing the
phone to ring or engaging in telephone conversations repeatedly[, and] . . . placing telephone
calls without disclosing his/her identity.” (Compl. ¶¶ 17–19). For these acts, Cavero “demands
judgment in the amount of $1000.” (Id. ¶¶ 17–22). In Count III, Cavero alleges Franklin
violated the FCCPA “by willfully communicating with Plaintiff with such frequency as could

6

Case No. 11-22630-CIV-ALTONAGA/Simonton

reasonably be expected to harass Plaintiff[, and] . . . claiming, attempting or threatening to
enforce a debt knowing that the debt was not legitimate.” (Id. ¶¶ 26–27). Cavero states he
“demands $1000” as a result. (Id.). Cavero is only entitled to a maximum recovery under the
FDCPA and FCCPA of $1000 each; thus, he seeks the statutory maximum. See 15 U.S.C. §
1692k(a); Fla. Stat. § 559.77(2).
Franklin states these claims are moot because once Cavero received an offer satisfying all
the relief sought, no case or controversy remained between the parties, depriving the Court of
subject matter jurisdiction over those claims. (See Mot. 11–12 (citing Sampaio v. Client Servs.,
Inc., 306 F. App’x 496 (11th Cir. 2009))). This is true regardless of what Cavero did with the
offer. (See id. 13 (citing Sampaio, 306 F. App’x at 496)). It is undisputed that Franklin
presented Cavero an Offer of Judgment of $2,000 to settle his claims in Counts II and III, which
is what Cavero seeks and is the highest amount to which he is entitled by statute. (See SMF ¶¶
21–22; SMFO ¶ 212).
The Court agrees with Franklin. The facts are undisputed that Franklin offered Cavero
the amount Cavero sought for Counts II and III, or the maximum amount recoverable. Cavero
asserts in his Response that Counts II and III fall under an exception to the mootness doctrine, as
his claims are “capable of repetition, yet evading review.” (Resp. 7). Cavero, however, provides
no argument or case law demonstrating why his claims meet that description, nor can the Court
conceive of any. Cavero’s claims are moot, and the Court therefore has no choice but to dismiss

2

Cavero explicitly states the facts in SMF paragraph 21 are undisputed, but neglects to make any
statement with respect to paragraph 22. (See SMFO). Paragraph 22 describes the Offer of Judgment,
notes it is attached as an exhibit to the SMF, and states Franklin was served with it. The Offer of
Judgment clearly states Franklin offered Cavero $2,000 in settlement of his claims under the FDCPA and
FCCPA. (See SMF Ex. 5, Offer of Judgment [ECF No. 37-5]).

7

Case No. 11-22630-CIV-ALTONAGA/Simonton

them for lack of subject matter jurisdiction. The Court grants summary judgment in favor of
Franklin on Counts II and III.
IV.

CONCLUSION

For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 36] is GRANTED.
Judgment will be entered in favor of Defendant, Franklin Collection Service, Inc., by separate
order. The Clerk is directed to CLOSE this case, and all pending motions are DENIED as
moot.
DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of January, 2012.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record
Edilberto I. Cavero, pro se
1421 S.W. 107 Avenue
Apt. 259
Miami, FL 33174

8