Anderson v. Maverick Financial Services et al

Filing 38

MEMORANDUM DECISION & ORDER Defendant Security Finance of Idaho, LLC (d/b/a Maverick Finance)'s Motion for Summary Judgment is Granted, re 30 . Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PHILLIP L. ANDERSON,

Case No. 4:12-cv-00487-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
SECURITY FINANCE OF IDAHO,
LLC (d/b/a MAVERICK FINANCE),
Defendant.

INTRODUCTION
Before the Court is Defendant Security Finance of Idaho, LLC (d/b/a Maverick
Finance)’s Motion for Summary Judgment (Dkt. 30). Having fully reviewed the record,
the Court finds that the facts and legal arguments are adequately presented in the briefs
and record. Accordingly, in the interest of avoiding further delay, and because the Court
finds that the decisional process would not be significantly aided by oral argument, this
matter shall be decided on the record before this Court without oral argument.
Plaintiff Phillip P. Anderson’s two-count Complaint alleges that Maverick Finance
violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”) and
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), by calling
Anderson’s cellular telephone seeking to speak with Anderson’s daughter-in-law on

MEMORANDUM DECISION AND ORDER - 1

seven different occasions, from January to April 2012. For the reasons set forth below,
the Court will grant summary judgment in favor of Maverick Finance on both counts.
BACKGROUND
Plaintiff Phillip P. Anderson’s daughter-in-law and tenant, Lisa M. Anderson,
applied for and received loans from Maverick Finance. Def’s SOF ¶ 3, Dkt. 31. As part of
the application process, Lisa Anderson listed Anderson as her landlord, a relative, and a
reference on her loan applications, complete with Anderson’s address and telephone
number. Id. As a routine part of underwriting the loan, Maverick Finance’s employee,
Ismael Vega, contacted Anderson on January 5, 2010, to verify Lisa Anderson’s status as
Anderson’s tenant. Id. Lisa Anderson was married to Anderson’s son, and she lived in
Anderson’s home. Id.
A year or so later, Lisa Anderson apparently defaulted on the loan, and Maverick
Finance attempted to contact her in connection with the loan on multiple occasions from
December 9, 2011, to April 26, 2012. In each of these attempts to contact Lisa Anderson,
a Maverick Finance employee manually dialed and specifically called Phillip Anderson’s
telephone number – which was not denoted as a cell phone number on the documents
signed and submitted by Lisa Anderson to Maverick Finance. Id. ¶ 5. Sometimes the
employee would leave no voicemail message, sometimes the employee would leave a
message, and other times, the employee would speak directly with Anderson. Id. On each
occasion, the Maverick Finance employee contacted Anderson for the purpose of asking
him to pass along a message to Lisa Anderson to call Maverick Finance. Id.
MEMORANDUM DECISION AND ORDER - 2

Specifically, the following sixteen telephone calls were made by a Maverick
Finance employee to Plaintiff Phillip Anderson’s telephone number [phone]:
1.

December 9, 2011 at 10:53 a.m. (no answer);

2.

January 12, 2012 at 9:56 a.m. (Anderson said he will give Lisa M. Anderson
a message to call);

3.

January 13, 2012 at 2:46 p.m. (Anderson said he would give Lisa Anderson
the message to call the office);

4.

January 27, 2012 at 10:07 a.m. (no answer);

5.

January 30, 2012 at 10:14 a.m. (Anderson said he would give Lisa Anderson
a message to call the office);

6.

February 9, 2012 at 1 :48 p.m. (Anderson said he will tell Lisa Anderson to
call);

7.

February 10, 2012 at 1:39 p.m. (no message left);

8.

March 20, 2012 at 2:54 p.m. (left voicemail message);

9.

March 26, 2012at1:11 p.m. (no message left);

10. April 6, 2012 at 10:38 a.m. (no message left);
11. April 9, 2012 at 9:03 a.m. (no message left);
12. April 10, 2012 at 1 :06 p.m. (Anderson said he will give Lisa Anderson the
message);
13. April 16, 2012 at 6:26 p.m. (no message left);
14. April 19, 2012 at 11:49 a.m. (left message to call the office);
15. April 23, 2012 at 5:51 p.m. (no message left);
16. April 26, 2012 at 4:59 p.m. (Anderson said to not call him again, and that he
doesn't know where Lisa Anderson lives because she changed it).
Id. ¶ 6.

MEMORANDUM DECISION AND ORDER - 3

According to Maverick Finance, during a telephone conversation on April 26, 2012,
Anderson asked the Maverick Finance employee to stop calling him. Id. ¶ 7. Maverick
Finance says this is the first time Anderson requested they stop calling. Id. Maverick
Finance promptly ceased the telephone calls to Anderson’s number. Id.
Maverick Finance’s telephone system does not have the capacity, and is not capable
of being modified to have the capacity, to store or produce numbers to be called, using a
random or sequential number generator, and to dial such numbers. Id.
While Maverick Finance was attempting to contact Lisa Anderson regarding her
outstanding debt owed to Maverick Finance, the principal purpose of Maverick Finance's
business is not the collection of debts. Rather, the principal purpose of its business is the
making of consumer loans, and the servicing of loans it has originated. Maverick Finance
does not collect or attempt to collect, directly or indirectly, debts owed or due or asserted
to be owed or due to another person or entity besides itself. Rather, Maverick Finance's
collection activities are confined entirely to efforts by Maverick Finance to collect debts
owed to it directly by its delinquent customers. Id. ¶ 11.
ANALYSIS
1. Telephone Consumer Protection Act
The TCPA provides, in pertinent part, that “It shall be unlawful for any person
within the United States ... to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice … to any telephone number
MEMORANDUM DECISION AND ORDER - 4

assigned to a paging service, cellular telephone service … or any service for which the
called party is charged for the call.” 47 U.S.C.A. § 227(b)(1)(A)(iii)(emphasis added).
The TCPA, 47 USC § 227(a)(1), defines “automatic telephone dialing system” as
“equipment which has the capacity to store or produce telephone numbers to be called,
using a random or sequential number generator; and to dial such numbers.” Id.
The evidence shows that Maverick Finance did not use an automatic telephone
dialing system to contact Anderson on his cell phone. Rather, it appears from the record
that Maverick Finance employees called Anderson’s telephone number directly and
specifically seeking to speak to a member of his family. Indeed, Maverick Finance’s
telephone system does not have the capacity, and is not capable of being modified to have
the capacity, to store or produce numbers to be called, using a random or sequential
number generator, and to dial such numbers. Because Anderson cannot prove a
necessary element of his TCPA claim, it must be dismissed.
2. Fair Debt Collection Practices Act
Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” 15 U.S.C.A. § 1692. The
FDCPA regulates the collection of “debts” by “debt collectors” by regulating the number
and type of contacts a debt collector may make with the debtor.

MEMORANDUM DECISION AND ORDER - 5

“The term ‘debt collector’ means any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The term also
“includes any creditor who, in the process of collecting his own debts, uses any name
other than his own which would indicate that a third person is collecting or attempting to
collect such debts. . .. “ Id.
Maverick Finance is a regulated consumer loan company. The principal purpose of
Maverick Finance's business is the making of consumer loans, and the servicing of loans
it has originated. Maverick Finance does not collect or attempt to collect, directly or
indirectly, debts owed or due or asserted to be owed or due to another person or entity
besides itself. Rather, Maverick Finance's collection activities are confined entirely to
efforts by Maverick Finance, if and when necessary, and solely on its own behalf and in
its own name, to collect debts owed to it by its own customers who have become
delinquent on loan accounts owed directly to Maverick Finance.
Based on these facts, Maverick Finance does not fit the definition of “debt
collector.” Instead, Maverick Finance fits squarely into the FDCPA’s definition of
“creditor,” which is “any person who offers or extends credit creating a debt or to whom
a debt is owed.” 15 U.S.C. § 1692a(4). The Ninth Circuit has held that “a ‘creditor’ is not
a ‘debt collector’ under the FDCPA.” Rowe v. Educ. Credit Mgmt. Corp., 559 F. 3d 1028,
1031 (9th Cir. 2009) (citing 15 U.S.C. § 1692a(6)(A). The FDCPA does not regulate
MEMORANDUM DECISION AND ORDER - 6

’s
tar
ns,
86
creditor’ activities. Oei v. NSt Capital Acquisition LLC, 48 F. Supp. 2d 1089, 1098
(C.D. Ca 2006). Because Ma
al.
B
averick Fina
ance is a cre
editor, and n a debt c
not
collector, w
within
the mean
ning of the FDCPA, th FDCPA claim again it must b dismissed
he
c
nst
be
d.
ORDER
O
IT IS ORD
I
DERED tha Defendan Security F
at
nt
Finance of Idaho, LLC (d/b/a
C
Maveric Finance)’s Motion for Summar Judgmen (Dkt. 30) is GRANT
ck
f
ry
nt
TED.

DAT
TED: Marc 31, 2015
ch

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D

MEMORA
ANDUM DECIS
SION AND ORDER - 7
R