Reed v. Receivable Recovery Services, LLC

Filing 35

ORDER AND REASONS: ORDERED that the defendant's 22 Motion to Dismiss or for Summary Judgment is DENIED in part as to its request to dismiss for lack of standing and GRANTED in part as to its request for summary judgment dismissing the plaintiff's claims. The plaintiff's 25 Cross Motion for Summary Judgment is DENIED. The plaintiff's claims are hereby dismissed. Signed by Judge Martin L.C. Feldman on 4/19/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SAUL REED

CIVIL ACTION

V.

NO. 16-12666

RECEIVABLE RECOVERY SERVICES, LLC

SECTION F

ORDER AND REASONS
Before the Court are two motions: (1) Receivable Recovery
Services, LLC’s motion to dismiss pursuant to Rules 12(b)(1) or
12(b)(6) or, alternatively, for summary judgment; and (2) Saul
Reed’s cross motion for summary judgment.

For the reasons that

follow, the defendant’s motion is DENIED in part (insofar as it
seeks dismissal for lack of standing) and GRANTED in part (insofar
as it seeks summary judgment dismissing the plaintiff’s claims)
and the plaintiff’s cross motion is DENIED.
Background
This litigation arises out of allegedly deceptive and abusive
debt collection practices used by a third party collector in its

1

effort to recover a debt owed by the plaintiff to an ambulance
service provider.
When Saul Reed was transported by Acadian Ambulance Service
in August 2015 to a hospital in Alexandria, Louisiana, he incurred
a bill for $1,556.53.

He has never paid Acadian, which engaged

Receivable Recovery Services, LLC (RRS) on January 27, 2016 to
collect the outstanding debt.

On January 27, 2016, RRS mailed to

Mr. Reed a written notice, which explained Mr. Reed’s rights under
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692g.

Mr.

Reed failed to dispute liability for any part of the debt within
30 days.
On three occasions (February 17 and 19 and March 7, 2016),
different RRS collectors spoke briefly with Mr. Reed. The February
17 and March 7 1 calls were recorded.

Mr. Reed targets the February

17 call as the source of RRS’s abusive conduct.

A portion of the

transcript 2 reads as follows:

The March 7, 2016 call was very brief. Mr. Reed said “hold on”
and then hung up on the RRS caller after the caller stated:
1

This is Ms. Massey with Receivable Recovery Services.
We’re calling you on behalf of Acadian Ambulance
Service.
You have a balance of $1,556.53 and were
calling as an attempt to collect the debt.
2 An audio recording and a transcript of the call was filed in the
summary judgment record.
2

Mr. Reed:
RRS:

Hello.

Hi, can I speak with Saul Reed?

Mr. Reed: Yes ma’am...
...
RRS: Hi, it’s Ernestine Gill with Receivable Recovery Services.
I’m calling...
Mr. Reed:

Come again?

RRS: This is Receivable Recovery Services. We have an account from
Acadian Ambulance...um...that they placed here for collections.
Has a balance of $1,556.53.
Mr. Reed:

For what?

RRS: We’re just trying to call you to work out arrangements to
get it taken care of. Um...I do have to tell you that this is an
attempt to collect a debt by a debt collector. Any information
obtained will be used for that purpose. Um... Just let me know
how you want to get it taken care of...
Mr. Reed:

I hear you but I ain’t knowing what you’re saying ma’am.

RRS: This is regarding your account for Acadian Ambulance.
Mr. Reed: [unintelligible single syllable response]
RRS: They have a balance that they want to get paid....
...
Mr. Reed: Well, ma’am, I’m
....[unintelligible mumbling]

not

working

at

the

moment

RRS: How long have you been...
Mr. Reed: [unintelligible single syllable response]
RRS: How long have you been out of work?
Mr. Reed: [unintelligible mumbling]...Since I come home from the
hospital...
RRS: I’m sorry.
...
Mr. Reed: I had just got released from jail.
RRS: Okay.
Mr. Reed:

So how long have you been out of work?
Years...
3

RRS:

Years...

Mr. Reed: Two...
RRS: Two years.
Mr. Reed:
RRS:

So how are you paying your bills?

Maybe three...I don’t know...

So how are you paying your other bills-your living expenses?

Mr. Reed: How am I what? Payin’ my other bills?
RRS: Right, right. How are you paying your bills? I mean the
rent, you know, electric bill, the food bill, the...you know, just
your basic living expenses? How are those being paid?
Mr. Reed: Ummm...definitely getting’ help with that...
RRS: Uh-hum... Who’s helping you?
Mr. Reed: But I don’t think that nobody goin’ to help me with
no...um, nothing bills... especially for nothing...$1500 for what?
I didn’t get any medicine...I don’t recall nothing...I don’t.
RRS: This was an ambulance ride. The ambulance picked you up from
3007...
Mr. Reed: I’m sorry. I’m sorry, so ma’am there’s nothing I can do.
Nothin’ right at this moment...
RRS: Are you refusing to pay the debt? Cause you owe the debt.
You need to do something to pay these guys back....They were there
when you needed ‘em
Mr. Reed: I...I...
RRS: and they helped you when you needed them, so you need to do
something. Do the right thing. And try to pay these people back
for what they did for you.
Mr. Reed: [chuckling]
RRS: At this point, you can laugh it off but it’s not a joke...
Mr. Reed: [continued chuckling] 1,500?
RRS:

$1556...

Mr. Reed: [laughing]...You serious? Right...15?...That
reasonable to you? I’m asking...but...

sound

RRS: That sounds very reasonable. Do you know how expensive an
ambulance is? How expensive it is to train an EMT? How expensive
the medicines in an ambulance are? Just you stepping inside that
ambulance is a good $2,000, so you got a deal. They cut you a
4

break on this. You know. But you need to do something to pay these
people back... So and it’s gonna’ hit your credit. It’s going to
affect your credit, so it is not a joking matter. It’s something
that you need to take seriously. And you need to do something to
get it resolved. So I’m going to go ahead on and list it. At
this point, it is listed as a refusal to pay, but we will pursue
other options and it will get paid one way or another. So we’re
here to try to work with you voluntarily, but if you think it’s a
laughing matter, I’m here to tell you that it’s not.
Mr. Reed: ...That’s not even the point. First off...
RRS: What do you mean?
Mr. Reed: Second off...
...
RRS: Sir, I have no idea what you are talking about...
Mr. Reed: Don’t worry about it...[hangs up]

Because the recording failed for the February 19 call, Lorena
Hooker, the RRS collector who initiated the call with Mr. Reed
that day, summarizes the exchange by her affidavit in the summary
judgment record:
On February 19, 2016, at approximately 11:43 AM,
and while at work at RRS in my capacity as a collector,
I spoke by telephone with an individual who identified
himself as Mr. Saul Reed. I began our conversation by
providing Mr. Reed my name, and the name of my employer,
RRS, followed by the “Mini-Miranda” warning required by
the [Fair Debt Collection Practices Act] (“This
communication is from a debt collector and any
information obtained will be used for that purpose.”) I
advised him that I was calling in an attempt to collect
the $1,556.53 debt which he owed to Acadian Ambulance
Service.
Mr. Reed did not dispute liability for all or any
part of his debt during our brief conversation, which
lasted less than two minutes.
I asked Mr. Reed whether he was able to pay
anything. He seemed unconcerned and replied that he had
5

no money and that there was nothing he could do.
He
stated that he had no income and had been out of work
for some time. At that point, he apparently hung up on
me because the line went dead without either of us saying
goodbye.
Neither one of us raised our voices [or] threatened
each other.
Mr. Reed did not ask or tell me not to call him
back.
There is no written request from Mr. Reed
instructing RRS to cease communications with him in his
file....

RRS attempted to call Mr. Reed on other occasions, but he either
failed to answer or hung up on the caller.

In mid-March 2016, RRS

stopped calling Mr. Reed when an attorney for Mr. Reed sent RRS a
cease and desist letter.
On April 6, 2016, RRS reported Mr. Reed’s unpaid Acadian
Ambulance account to one or more of the major Consumer Reporting
Agencies.

On

November

17,

2016,

RRS

(on

behalf

of

Acadian

Ambulance Corporation) filed a civil collection petition in the
First City Court of New Orleans.

Meanwhile, on July 12, 2016, Mr.

Reed sued RRS, alleging that RRS violated the Fair Debt Collection
Practices Act by: using harassing and abusive tactics to collect
the

debt

in

violation

of

15

U.S.C.

§

1692d;

making

false,

deceptive, and misleading representations regarding the debt, in
violation of 15 U.S.C. § 1692e; using unfair and unconscionable
debt collection methods, in violation of 15 U.S.C. § 1692f; and
failing to send the plaintiff a written notice containing the

6

language required by 15 U.S.C. § 1692g.

Mr. Reed also alleged

that RRS’s unfair and deceptive actions violate the Louisiana
Unfair Trade Practices and Consumer Protection Act, La.R.S. §
51:1405.

Mr. Reed seeks an injunction requiring RRS to cease all

collection efforts against him; he also seeks statutory damages
under the FDCPA of $1,000; actual damages pursuant to 15 U.S.C. §
1692k and La.R.S. § 51:1409; trebled damages pursuant to La.R.S.
§ 51:1409; and costs and attorney’s fees pursuant to 15 U.S.C. §
1692k and La.R.S. § 51:1409.
RRS now seeks to dismiss the plaintiff’s complaint pursuant
to

Rules

12(b)(1)

and

(b)(6)

of

the

Federal

Rules

of

Procedure, or, alternatively, RRS seeks summary judgment.

Civil
Mr.

Reed cross moves for summary judgment.
I.
A.

Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The burden of proof
for a Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction.

King v. U.S. Dep't of Veterans Affairs, 728 F.3d

410, 416 (5th Cir. 2013); Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001).

The Court may find a plausible set of facts

to support subject matter jurisdiction by considering any of the
7

following:

“(1)

the

complaint

alone;

(2)

the

complaint

supplemented by undisputed facts evidenced in the record; or (3)
the complaint supplemented by undisputed facts plus the court's
resolution

of

disputed

facts.”

Barrera-Montenegro

v.

United

States, 74 F.3d 657, 659 (5th Cir. 1996).
In addition to the jurisdictional challenge, the defendant
also seeks dismissal of the plaintiff’s claims for failure to state
a claim under Rule 12(b)(6).
motions

to

dismiss

under

The standard of review applicable to
Rule

12(b)(1)

is

similar

to

that

applicable to motions to dismiss under Rule 12(b)(6). See Williams
v. Wynne, 533 F.3d 360, 364-65 n.2 (5th Cir. 2008)(observing that
the Rule 12(b)(1) and Rule 12(b)(6) standards are similar, but
noting that applying the Rule 12(b)(1) standard permits the Court
to consider a broader range of materials in resolving the motion).
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to state a
claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim

8

showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he

pleading

'detailed

standard

factual

Rule

8

allegations,'

announces

but

it

does

demands

not
more

require
than

an

unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”

See Thompson v. City of Waco,

Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).

But, in deciding whether dismissal is

warranted, the Court will not accept conclusory allegations in the
complaint as true.

Id. at 502-03 (citing Iqbal, 556 U.S. at 678).

To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
footnote omitted).

Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the

9

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged.”

that

the

defendant

is

liable

for

the

Iqbal, 556 U.S. at 678 (“The plausibility

standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”).

“[A]

plaintiff’s

obligation

to

provide

the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
B.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.
10

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
"[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence."

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
significantly probative," summary judgment is appropriate.

Id. at

249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (“Unauthenticated documents are improper as summary judgment
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).
11

Although

the Court must "resolve factual controversies in favor of the
nonmoving party," it must do so "only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts."

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013)(internal quotation marks and citation
omitted).
II.

The U.S. Constitution limits federal court jurisdiction to
actual cases or controversies.

U.S. Const., Art. III, § 2.

Derived from the Article III case or controversy requirement, the
standing doctrine “limits the categories of litigants empowered to
maintain a lawsuit in federal court to seek redress for a legal
wrong.”

Spokeo,

(2016)(citations

Inc.

v.

omitted).

Robins,
Three

136

S.Ct.

elements

1540,

comprise

1545
the

“irreducible constitutional minimum” of standing:
The plaintiff must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.

Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)).

“The injury-in-fact requirement requires a plaintiff to

allege an injury that is both ‘concrete and particularized.’”
Spokeo, 136 S.Ct. at 1545 (quoting Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81
12

(2000)(emphasis in Spokeo)).

“For an injury to be particularized,

it must affect the plaintiff in a personal and individual way.”
Id. at 1548 (internal quotations, citation omitted). For an injury
to be concrete, “it must actually exist[; it must be] real, and
not abstract.”

Id. (internal quotations and citations omitted).

Notably, “Article III standing requires a concrete injury even in
the context of a statutory violation.”

Id.

In other words,

Congress may not simply confer an injury-in-fact by granting a
person a statutory right and authorizing that person to sue to
vindicate that right.

Id.

RRS seeks to dismiss the plaintiff’s claims on the ground
that he has not suffered an injury-in-fact sufficient to confer
Article III standing in light of Spokeo. 3

The plaintiff counters

In Spokeo, the defendant website operator generated a consumer
report that inaccurately reported certain information such as the
plaintiff’s marital status, age, employment status, salary, and
educational history. The plaintiff on his own behalf and on behalf
of a class sued Spokeo, Inc. under the Fair Credit Reporting Act,
alleging that the website operator violated the FCRA by generating
this report, but the plaintiff did not allege that he suffered any
monetary harm as a result of the FCRA violation.
The district
court dismissed the plaintiff’s complaint for lack of standing.
The Ninth Circuit reversed, finding that the plaintiff had
sufficiently alleged injury-in-fact.
Because the Ninth Circuit
“failed to appreciate the distinction between concreteness and
particularization,” the U.S. Supreme Court vacated the Ninth
Circuit’s decision and remanded to determine “whether the
particular procedural violations alleged in this case entail a
degree of risk sufficient to meet the concreteness requirement.”
Id. at 1550.
3

13

that he suffered an injury-in-fact. 4

In support, he cites cases

in other jurisdictions that have rejected standing challenges in
FDCPA cases.

See Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d

1109, 1116 (9th Cir. 2014)(“the violation of [the] right not to be
the

target

of

misleading

debt

collection

communications

...constitutes a cognizable injury under Article III.”); Long v.
Fenton & McGarvey Law Firm P.S.C., No. 15-1924, --- F. Supp. 3d --, 2016 WL 7179367, at *3 (S.D. Ind. Dec. 9, 2016)(“While courts
have found that violations of other statutes, such as the Cable
Communications Policy Act or FCRA, do not create concrete injuries
in fact, violations of the FDCPA are distinguishable from these
other statutes and have been repeatedly found to establish concrete
injuries.”); Hayes v. Convergent Healthcare Recoveries, Inc., No.
14-1467, 2016 WL 5867818, at *4 (C.D. Ill. Oct. 7, 2016)(“a
violation of the right under § 1692e to be free from false or
misleading representations from debt collectors creates a harm, or
risk

of

harm,

sufficient

to

meet

the

requirement

of

concreteness.”); Quinn v. Specialized Loan Servicing, LLC, No. 162021, 2016 WL 4264967 (N.D. Ill. Aug. 11, 2016)(citing cases

The plaintiff argues that he was told lies, threatened, and
harassed, and that merely receiving inaccurate information is an
injury because it impairs the consumer’s ability to make informed
decisions to address the debt. Jensen v. Pressler & Pressler, 791
F.3d 413, 421 (3d Cir. 2015)(“the FDCPA was designed to give
debtors reliable information so that they can make informed
decisions about how to address debts.”).
4

14

rejecting challenges to standing based on Spokeo in FDCPA cases).
The Court is persuaded by these authorities.
Although the Court may conceive of an instance in which an
allegation of a bare violation of the FDCPA’s procedural disclosure
requirements

may

not

support

standing, 5

where,

as

here,

the

plaintiff alleges that he has been victimized by harassment and
false or misleading debt collection communications, he seeks to
vindicate his substantive right to be free from debt collector
abuse, which sufficiently alleges a concrete 6 and particularized 7
injury-in-fact.

Mr. Reed’s alleged injury is more than a bare

procedural violation; it is the type of concrete injury Congress
sought to eradicate in enacting the FDCPA.
III standing. 8

Mr. Reed has Article

RRS’s motion to dismiss for lack of standing must

be denied.

See Abercrombie v. Rogers, Carter, & Payne, LLC, No. 15-2214,
2016 WL 8201965 (W.D. La. Nov. 22, 2016).
6 Mr. Reed’s alleged injury is concrete because he alleges that he
was actually victimized by RRS’s allegedly abusive debt collection
practices; Mr. Reed alleges that RRS threatened him and harassed
him and that this conduct caused him mental and emotional distress.
7 Mr. Reed’s injury is particularized because the alleged injury
directly affected him in an individual way and is not a generalized
grievance.
8 There is no dispute that Mr. Reed’s injury is fairly traceable
to RRS’s debt collection conduct, and that his injury would be
redressed by a favorable decision by this Court.
5

15

III.
A.

The

Fair

Debt

Collection

Practices

Act

was

enacted

“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. § 1692(e).

Section 1692d

forbids debt collectors from engaging in conduct that harasses,
oppresses, or abuses any person in connection with the collection
of

a

debt.

prohibited

Section
practices,

1692e

provides

including

a

nonexclusive

falsely

list

representing

of
the

character, amount, or legal status of any debt, § 1692e(2)(A), and
threatening to take any action that cannot legally be taken, §
1692e(5).

Section 1692f prohibits debt collectors from using

“unfair or unconscionable means to collect or attempt to collect
any debt.”
“[T]he

FDCPA

does

not

ordinarily

require

proof

of

an

intentional violation and, as a result, is described by some as a
strict liability statute.”

LeBlanc v. Unifund CCR Partners, 601

F.3d 1185, 1190 (11th Cir. 2010).

Given that “Congress...clearly

intended the FDCPA to have a broad remedial scope,” the Fifth
Circuit instructs that “[t]he FDCPA should...be construed broadly

16

and

in

favor

Outsourcing,

of

the

consumer.”

Incorporated,

836

Daugherty
F.3d

507,

v.
511

Convergent
(5th

Cir.

2016)(citations omitted).
In assessing whether a debt collector’s conduct violates the
FDCPA,

the

Court

“must

[the

communication]

perspective

of

consumer.’”

Id. (citations omitted).

“assume[s]

an

view

that

‘unsophisticated

the

or

plaintiff-debtor

experienced in dealing with creditors.”

least

from

the

sophisticated

In so doing, the Court
is

neither

shrewd

nor

Id. (citation omitted).

“At the same time, however, the unsophisticated consumer is not
one

‘tied

to

the

very

sophistication ladder.’”

last

rung

on

the

[intelligence

Id. (citation omitted).

or]

A communication

from a debt collector is misleading or deceptive “when it can be
reasonably read to have two or more different meanings, one of
which is accurate.”

Brandon v. Eaton Group Attorneys, LLC, No.

16-13747, 2017 WL 345864, at *3 (E.D. La. Jan. 24, 2017)(Vance,
J.)(citations omitted).

In a lawsuit seeking statutory damages,

the plaintiff need not prove that he was actually misled by the
letter.

Id.
B.

As an initial matter, the Court observes that the plaintiff
has streamlined his claims by clarifying that he is not advancing
a claim under 15 U.S.C. § 1692c; and, he admits that the FDCPA
17

does not require that he receive the notice required by 15 U.S.C.
§ 1692g and, therefore, he abandons any such claim.

Thus, insofar

as the plaintiff alleged claims based on alleged violations of §
1692c and § 1692g, the Court will grant the defendant’s motion for
summary judgment and dismiss those claims.
The plaintiff submits that RRS violated the FDCPA in three
ways: by two specific statements in the February 17 call and as a
result of the cumulative effect of RRS’s collection efforts.
Accordingly,

the

cross

motions

for

summary

judgment 9

resolution of the plaintiff’s three remaining FDCPA claims.

seek
Three

issues are thus presented by the parties’ cross motions: (1)
Whether RRS violated § 1692e and § 1692f by lying to the plaintiff
about the amount and character of the debt; (2) Whether RRS
violated §§§ 1692d, 1692e, and 1692f by stating that the debt would
get paid one way or another; (3) Whether RRS violated § 1692d(5)
by calling plaintiff repeatedly.

In evaluating whether summary

judgment is appropriate, the Court reviewed the summary judgment
record, including the audio recording of the February 17 call.

To

Although RRS alternatively seeks dismissal under Rule 12(b)(6)
or summary judgment under Rule 56, the Court only properly
considers the parties’ cross motions for summary judgment. This
is so for two reasons: (1) a Rule 12(b)(6) motion should have been
advanced, if at all, prior to answering (see Fed. R. Civ. P.
12(b)); and (2) both sides submit evidence beyond the pleadings.
See Fed. R. Civ. P. 12(d).
9

18

place the plaintiff’s remaining FDCPA claims in context, it is
helpful to again reproduce the transcript of this call:
Mr. Reed:
RRS:

Hello.

Hi, can I speak with Saul Reed?

Mr. Reed: yes ma’am...
RRS: I’m sorry.
Mr. Reed:

Is this Saul Reed?

Yes, it is. Speaking.

RRS: Hi, it’s Ernestine Gill with Receivable Recovery Services.
I’m calling...
Mr. Reed:

Come again?

RRS: This is Receivable Recovery Services. We have an account from
Acadian Ambulance...um...that they placed here for collections.
Has a balance of $1,556.53.
Mr. Reed:

For what?

RRS: We’re just trying to call you to work out arrangements to
get it taken care of. Um...I do have to tell you that this is an
attempt to collect a debt by a debt collector. Any information
obtained will be used for that purpose. Um... Just let me know
how you want to get it taken care of...
Mr. Reed:

I hear you but I ain’t knowing what you’re saying ma’am.

RRS: This is regarding your account for Acadian Ambulance.
Mr. Reed: [unintelligible single syllable response]
RRS: They have a balance that they want to get paid....
Mr. Reed: [unintelligible three syllable response]
RRS: Just let me know who you want to pay it....
Mr.
Reed:
Well,
ma’am,
I’m
moment....[unintelligible mumbling]

not

working

at

the

RRS: How long have you been...
Mr. Reed: [unintelligible single syllable response]
RRS: How long have you been out of work?
Mr. Reed: [unintelligible mumbling]...Since I come home from the
hospital...

19

RRS: I’m sorry.
Mr. Reed:

Since I left whatever hospital it is...

RRS: You don’t know how long you been out of work? I mean when was
the last time you worked someplace?
Mr. Reed: I had just gotten...I have just gotten released from
jail [chuckling]
RRS: I’m sorry, you had what?
Mr. Reed: I had just got released from jail.
RRS: Okay.
Mr. Reed:
RRS:

So how long have you been out of work?
Years...

Years...

Mr. Reed: Two...
RRS: Two years.
Mr. Reed:
RRS:

So how are you paying your bills?

Maybe three...I don’t know...

So how are you paying your other bills-your living expenses?

Mr. Reed: How am I what? Payin’ my other bills?
RRS: Right, right. How are you paying your bills? I mean the
rent, you know, electric bill, the food bill, the...you know, just
your basic living expenses? How are those being paid?
Mr. Reed: Ummm...definitely getting’ help with that...
RRS: Uh-hum... Who’s helping you?
Mr. Reed: But I don’t think that nobody goin’ to help me with
no...um, nothing bills... especially for nothing...$1500 for what?
I didn’t get any medicine...I don’t recall nothing...I don’t.
RRS: This was an ambulance ride. The ambulance picked you up from
3007...
Mr. Reed: I’m sorry. I’m sorry, so ma’am there’s nothing I can do.
Nothin’ right at this moment...
RRS: Are you refusing to pay the debt? Cause you owe the debt.
You need to do something to pay these guys back....They were there
when you needed ‘em
Mr. Reed: I...I...

20

RRS: And they helped you when you needed them, so you need to do
something. Do the right thing. And try to pay these people back
for what they did for you.
Mr. Reed: [chuckling]
RRS: At this point, you can laugh it off but it’s not a joke...
Mr. Reed: [continued chuckling] 1,500?
RRS:

$1556...

Mr. Reed: [laughing]...You serious? Right...15?...That
reasonable to you? I’m asking...but...

sound

RRS: That sounds very reasonable. Do you know how expensive an
ambulance is? How expensive it is to train an EMT? How expensive
the medicines in an ambulance are? Just you stepping inside that
ambulance is a good $2,000, so you got a deal. They cut you a
break on this. You know. But you need to do something to pay these
people back... So and it’s gonna’ hit your credit. It’s going to
affect your credit, so it is not a joking matter. It’s something
that you need to take seriously. And you need to do something to
get it resolved. So I’m going to go ahead on and list it. At
this point, it is listed as a refusal to pay, but we will pursue
other options and it will get paid one way or another. So we’re
here to try to work with you voluntarily, but if you think it’s a
laughing matter, I’m here to tell you that it’s not.
Mr. Reed: ...That’s not even the point. First off...
RRS: What do you mean?
Mr. Reed: Second off...
RRS: What do you mean?
Mr. Reed: You thought about...you thought about [unintelligible]
RRS: Sir, I have no idea what you are talking about...
Mr. Reed: Don’t worry about it...[hangs up]

There are no facts in dispute.

Considering this exchange on

February 17, the Court turns to consider whether the plaintiff or
defendant

is

entitled

to

summary

plaintiff’s three FDCPA claims.

21

judgment

regarding

the

1.

Whether RRS violated §§ 1692e and 1692f by opining that
the plaintiff got a “deal.”

Section 1692e provides:
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with
the collection of any debt. Without limiting the general
application of the foregoing, the following conduct is
a violation of this section:
...
(2) The false representation of—
(A) the character, amount, or legal status of any
debt...
...
(5) The threat to take any action that cannot legally be
taken or that is not intended to be taken.
...
(10) The use of any false representation or deceptive
means to collect or attempt to collect any debt or to
obtain information concerning a consumer.

15 U.S.C. § 1692e.

15 U.S.C. § 1692f states:

“A debt collector

may not use unfair or unconscionable means to collect or attempt
to collect any debt.”

Like § 1692e, § 1692f then provides a non-

exhaustive list of conduct that violates this section.
The plaintiff submits that this statement made in the February
17 call was false, deceptive, and misleading to the unsophisticated
consumer:
“[j]ust you stepping inside that ambulance is a good
$2,000, so you got a deal.
They cut you a break on
this.”
22

The plaintiff challenges this excerpt from the February 17 call as
constituting a false representation regarding the character of the
debt under 1692e(2)(A) and a false, misleading, and unfair means
of debt collection under Sections 1692e and 1692f generally.

The

defendant counters that nothing said in the February 17 call was
false,

deceptive,

or

misleading

to

an

unsophisticated

debtor

because the only amount Ms. Gill ever asked Mr. Reed to pay was
the true amount, $1,556.53, an amount she repeated twice.

Read in

context, RRS submits, Ms. Gill’s quoted remark is an offhand
statement

of

opinion

responding

to

Mr.

Reed’s

question

“$1500...that sound reasonable to you?”; that it would not mislead
a hypothetical unsophisticated debtor; and, in any event, that the
statement was not material.

The Court agrees.

Ms. Gill’s statement that Mr. Reed got a “deal” because
stepping inside an ambulance costs $2,000 must be considered in
the context of the entire February 17 communication.

See Gonzalez

v. Kay, 577 F.3d 600, 607 (5th Cir. 2009)(“We do not construe the
disclaimer in isolation but must analyze whether the letter is
misleading as a whole.”).

Ms. Gill advised Mr. Reed twice of the

exact correct amount owed to Acadian.

Her statement regarding the

“deal” he got was in direct response to Mr. Reed asking her opinion
as to whether she thought that $1,500 for one ambulance ride was
reasonable.

Considering this statement in the context of the
23

February

17

exchange,

as

it

must,

the

Court

finds

that

an

unsophisticated consumer would not perceive the communication as
false, deceptive, or misleading.

Notably, it is undisputed that

a false or misleading misrepresentation must be material in order
for it to violate the FDCPA.

See Peter v. GC Servs. L.P., 310

F.3d 344, 350 (5th Cir. 2002)(“Consequently, we conclude that the
letter does not contain any real or material false, deceptive,
misleading representation in connection with the collection of the
debt within the meaning of § 1692e.”); Hahn v. Triumph P’ships
LLC, 557 F.3d 755, 758 (7th Cir. 2009)(“a false but non-material
statement is not actionable” under the FDCPA because “[a] statement
cannot mislead unless it is material.”); Gomez v. Niemann & Heyer,
L.L.P., No. 16-119, 2016 WL 3562148, at *4 (W.D. Tex. June 24,
2016)(“A false, deceptive, or misleading statement is ‘material’
when

it

has

‘the

ability

to

influence

a

consumer’s

decision.’”)(citing O’Rourke v. Palisades Acquisition XVI, LLC,
635 F.3d 938, 942 (7th Cir. 2011)).
Here, the plaintiff has failed to persuade the Court that Ms.
Gill’s statement of opinion in response to Mr. Reed’s question
eliciting her opinion, read in the context of the true amount owed
along with the tenor of the entire exchange, had the ability to
genuinely influence an unsophisticated consumer’s decision.

24

The

statement, even if capable of being false, is simply not material. 10
Likewise, the plaintiff has failed to persuade the Court that the
abstract statement of opinion as to the reasonableness of the
amount owed...in response to the debtor’s question seeking the
debt

collector’s

opinion...constitutes

an

“unfair

or

unconscionable” means to collect a debt within the meaning of §
1692f. 11
amount

To be sure, Mr. Reed was not asked to pay $2000, or any
other

invoice.

than

the

exact

amount

presented

on

the

Acadian

As a matter of law, there is no evidence that would

permit a reasonable jury to return a verdict for the plaintiff.
Because the challenged statement was not a materially false,
deceptive, or misleading representation, nor was it unfair or

The plaintiff argues that lying to a consumer about a debt being
discounted has the ability to affect a consumer’s decision and
that, if such a statement were not material, “there would be no
reason for a collector to use them.” In other words, the plaintiff
argues that all statements made by debt collectors are material
and capable of influencing the debtor. This is, at best, wishful
hyperbole.
11 At best, this claim appears to be redundant, considering that
the plaintiff does not identify any conduct not already addressed
by other sections of the FDCPA. In fact, the plaintiff fails to
advance any argument or present any case literature addressing how
this particular statement (a statement of opinion in response to
the debtor’s request for that opinion) might constitute an unfair
or unconscionable means to collect a debt. This failure is likely
attributable to the fact that the plaintiff has no legal support
for a Section 1692f claim here. See Turner v. Prof’l Rec. Servs.,
Inc., 956 F. Supp. 2d 573, 580 (D.N.J. 2013)(“Because the plaintiff
does not point to any alleged unfair or unconscionable conduct not
addressed by [other provisions of the FDCPA], her claims pursuant
to § 1629f are redundant” and summary judgment dismissing them is
warranted).
10

25

unconscionable, RRS is entitled to judgment as a matter of law
dismissing the plaintiff’s Sections 1692e and 1692f claim based on
this statement.
2.

Whether RRS violated §§§ 1692d, 1692e, and 1692f by
stating that the debt would get paid “one way or
another.”

Section 1692d provides:
A debt collector may not engage in any conduct the
natural consequence of which is to harass, oppress, or
abuse any person in connection with the collection of a
debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this
section:
...
(1) The use or threat of use of violence or other
criminal means to harm the physical person, reputation,
or property of any person.
(2) The use of obscene or profane language or language
the natural consequence of which is to abuse the hearer
or reader.
....
Again, § 1692e provides: “A debt collector may not use any false,
deceptive, or misleading representation or means in connection
with the collection of any debt.”

15 U.S.C. § 1692f states:

“A

debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt.”
Mr. Reed challenges Ms. Gill’s statement in the February 17
call that RRS “will pursue other options and [the debt] will get
paid one way or another.”

Mr. Reed submits that this statement is

untrue, constitutes a threat to take action that cannot legally be

26

taken or that is not intended to be taken” under Section 1692e(5),
is deceptive or misleading to the unsophisticated consumer because
it implies that the defendant will extract the debt from the
plaintiff

through

extra-judicial

or

illegal

actions,

and

the

natural consequence of such a statement is to harass, oppress, and
abuse the plaintiff in violation of Section 1692d(1) and (2).

RRS

counters that, the “one way or another” phrase, read and listened
to on the audio in context, demonstrates the absence of any
hostility or implicit threat.

Not only did it intend to pursue

other options to recover the debt, RRS submits, it in fact did so
by calling after February 17; credit reporting the unpaid account
on April 6, 2016; and by eventually filing a collection petition
against Mr. Reed on November 17, 2016.
Consider the statement that RRS would collect the debt “one
way or another” within the context of this exchange between Ms.
Gill and Mr. Reed:
Mr. Reed: [laughing]...You serious? Right...15?...That
sound reasonable to you? I’m asking...but...
RRS: That sounds very reasonable. Do you know how
expensive an ambulance is? How expensive it is to train
an EMT? How expensive the medicines in an ambulance are?
Just you stepping inside that ambulance is a good $2,000,
so you got a deal. They cut you a break on this. You
know. But you need to do something to pay these people
back... So and it’s gonna’ hit your credit. It’s going
to affect your credit, so it is not a joking matter.
It’s something that you need to take seriously. And you
need to do something to get it resolved. So I’m going
to go ahead on and list it. At this point, it is listed
27

as a refusal to pay, but we will pursue other options
and it will get paid one way or another. So we’re here
to try to work with you voluntarily, but if you think
it’s a laughing matter, I’m here to tell you that it’s
not.

Read

in

context,

the

statement

demonstrates

that

the

unsophisticated consumer would neither consider this a threat to
use violence or criminal means to recover the debt, nor consider
it deceptive or misleading; indeed, RRS pursued other (legal) means
of collecting the debt.
Court

that

RRS

is

Analogous case literature persuades the

entitled

to

judgment

as

a

matter

of

law

dismissing this claim. 12
Courts routinely determine that innocuous statements alluding
to the debt collector’s legal rights and means to collect debts
are not actionable under the FDCPA.

“[M]erely advising the debtor

of the agency’s options with which to pursue the debt is the sort
of truism that is legally insufficient to violate 1692e.”

Sparks

v. Phillips & Cohen Assoc., Ltd., 641 F. Supp. 2d 1234, 1249 (S.D.
Ala. 2008)(debt collector’s statement to plaintiff that it could
force her to sell her deceased mother’s house in probate to pay
her mother’s debts was neither a threat nor a false statement,
but, rather, an innocuous statement of the debt collector’s legal

That debt collection companies seem to have somewhat unsavory
reputations is not enough to support plaintiff’s grievances.
12

28

rights).

In Shuler v. Ingram & Assoc., 710 F. Supp. 2d 1213, 1221

(N.D. Ala. 2010), the court held that a debt collector’s statement
that

it

“may

place

a

lien

on

plaintiff’s

property,

garnish

[plaintiff’s] wages, that [the debt collector] prosecutes debts
like his, and always wins” did not constitute threats or actions
that the debt collector could not or did not intend to take.

And,

perhaps

debt

most

convincing,

another

court

considered

a

collector’s statement that it would get the money “one way or
another” and nevertheless found, as a matter of law, that the
statement was not harassing, oppressive, or abusive.

See Thomas

v. LDG Financial Services, Inc., 463 F. Supp. 2d 1370, 1373 (N.D.
Ga. 2006)(finding that the plaintiff had failed to state a claim
under Section 1692d because the debt collectors’ statements -that they were going to get their money one way or another, yelling
that Georgia is a garnishable state and then hanging up on the
plaintiff, and asking the plaintiff what her problem was because
she was making the same salary when she was paying her bills -were not harassing, oppressive, or abusive).
No facts are in dispute.

As a matter of law, there is no

evidence in the record that would permit a reasonable jury to
return a verdict for the plaintiff.

Accordingly, because the

statement in context does not violate Sections 1692d, 1692e, or
1692f, RRS is entitled to judgment as a matter of law dismissing
the plaintiff’s claims.
29

3.

Whether RRS violated § 1692d(5) by calling Plaintiff
repeatedly.

Section 1692d(5) states:
A debt collector may not engage in any conduct the
natural consequence of which is to harass, oppress, or
abuse any person in connection with the collection of a
debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this
section:
...
(5) Causing a telephone to ring or engaging any person
in telephone conversation repeatedly or continuously
with intent to annoy, abuse, or harass any person at the
called number....
Intent to harass “may be inferred from the frequency, pattern, or
substance of the telephone calls that [the debtor] received from
the debt collector.”

Karp v. Financial Recovery Services, Inc.,

No. 12-985, 2013 WL 6734110, at *6 (W.D. Tex. 2013)(six calls over
a two-week period did not establish an intent to harass)(citations
omitted); Bell v. CSD Collection Specialist, No. 11-280, 2013 WL
311841, at *3 (M.D. La. 2013)(debt collector’s five calls to
plaintiff on four days over a 13 day period did not raise a genuine
issue of material fact regarding whether debt collector harassed
debtor); Tucker v. The CBE Group, Inc., 710 F. Supp. 2d 1301, 130306 (M.D. Fla. 2010)(facts did not raise reasonable inference of
intent

to

harass

where

debt

collector

made

57

calls

to

the

plaintiff, including seven calls in one day, because the debt
collector never spoke to the debtor, was never asked to cease
calling, and never called back on the same day it had left a
30

message.); Udell v. Kansas Counselors, Inc., 313 F. Supp. 2d 1135,
1143-44

(D.

Kan.

2004)(fact

that

debt

collector

placed

four

automated telephone calls to consumers in a seven day period
without leaving messages did not, as a matter of law, constitute
harassment under the FDCPA); Arteaga v. Asset Acceptance, LLC, 733
F. Supp. 2d 1218, 1227 (E.D. Ca. 2010)(18 calls over approximately
five month period did not violate Section 1692d(5), but even if
the plaintiff’s account of “almost daily” calls is true, plaintiff
failed to raise a genuine issue of material fact on her Section
1692d claim).
In Arteaga, the district court surveyed case literature on §
1692d(5) harassment, noting that intent to harass may be inferred
from frequency of calls, substance of calls, or place to which
calls are made: a debt collector may harass a debtor by immediately
recalling a debtor after a debtor has hung up the phone; a debt
collector may harass a debtor by continuing to call the debtor
after the debtor has requested that the debt collector cease and
desist communication; a debt collector may harass a debtor by
calling the debtor’s workplace or calling at inconvenient hours;
a debt collector may harass a debtor by calling multiple times in
a short period of time, such as six phone calls in 24 minutes or
calling four or five times each day.

31

733 F. Supp. 2d at 1227-29.

The Court finds that RRS’s conduct does not rise to the level
of harassment under Section 1692d; the plaintiff has failed to
raise a triable issue of fact as to whether the phone calls were
initiated

with

1692d(5).

the

intent

to

harass

in

violation

of

Section

It appears that RRS called Mr. Reed approximately 14

times over a five week period of time (from February 8 until March
17); six of the calls were not answered and about the same number
were answered but nothing was said because the person answering
the phone hung up.

This number neither presents a genuine issue

for trial regarding whether RRS violated the FDCPA in contacting
him, nor does it rise to a level of harassment as measured by the
case literature.
volume

of

Indeed, courts have noted that “[a] remarkable

telephone

jurisprudence.”

call

is

permissible

under

FDCPA

Karp, 2013 WL 6734110, at *6 (citing cases with

high volume calls including 114 calls in a four-month period; 149
calls in a two-month period; 55 calls over three and a half months;
57 calls, including 7 in one day).

Moreover, putting aside the

number of calls, there is no evidence of egregious conduct present
in this case.

There is no evidence that RRS called multiple times

in a single day, or called his place of employment or his family
or friends, or called at odd hours, or called after Reed requested
that RRS stop calling.

Mr. Reed never told RRS to stop calling.

RRS stopped calling once it received a letter from Mr. Reed’s
attorney on March 18.

The evidence in the record simply does not
32

support a harassment claim.

Again, there are no facts in dispute

as to Mr. Reed’s final FDCPA claim.

As a matter of law, there is

no evidence in the record that would permit a reasonable jury to
return a verdict in favor of Mr. Reed on this claim.

Accordingly,

summary judgment in favor of RRS is appropriate.
IV.
The Louisiana Unfair Trade Practice and Consumer Protection
Act,

La.R.S.

51:1401-18,

prohibits

“[u]nfair

methods

of

competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.”
affords

a

cause

of

action

to

La.R.S. § 51:1405A.
any

person

“who

The LUTPA

suffers

any

ascertainable loss of money or moveable property...as a result of
the use or employment by another person of an unfair or deceptive
method, act or practice.”

La.R.S. § 51:1409A.

“[A] practice is

unfair when it offends established public policy and when the
practice is unethical, oppressive, unscrupulous, or substantially
injurious.”

Rogers v. Brooks, 122 Fed.Appx. 729, 733 (5th Cir.

2004)(quoting Jarrell v. Carter, 577 So.2d 120, 123 (La. App. 1
Cir. 1991)).

A practice is deceptive “when it amounts to fraud,

deceit, or misrepresentation.”

Mixon v. Iberia Surgical, L.L.C.,

956 So. 2d 76, 80 (La. App. 3 Cir. 2007).

A practice need not be

both unfair and deceptive to offend LUTPA.

Monroe Med. Clinic,

Inc. v. Hosp. Corp. of Am., 622 So. 2d 760, 763 (La. App. 2 Cir.

33

1993).

Determination of whether a particular practice offends

LUTPA is left to the courts, to be determined on a case by case
basis.

Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th

Cir. 1993).
Assuming that the LUTPA applies to debt collection conduct,
the

plaintiff

fails

to

point

to

any

evidence

in

the

record

demonstrating that RRS engaged in conduct amounting to unfair or
deceptive debt collection practices within the meaning of the
statute.

Here, Mr. Reed never told RRS that he disputed the debt

owed, and he never told RRS to stop contacting him (when his
attorney wrote to RRS to stop, it stopped).

As already determined

in connection with his FDCPA claims, RRS’s conduct did not rise to
the level of unfair or deceptive or harassing conduct within the
meaning of that statute. That same conduct falls short of creating
a triable issue for trial with respect to a LUTPA claim.

Finally,

there is no evidence in the record that Mr. Reed has suffered any
loss as a result of RRS’s business practices.
a matter of law.

His claim fails as

See La.R.S. § 51:1409A (“Any person who suffers

any ascertainable loss of money or...property...as a result of the
use or employment by another person of an unfair or deceptive
method, act, or practice declared unlawful by R.S. 51:1405, may
bring an action individually...to recover actual damages.”).

34

Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendant’s motion to dismiss or for summary judgment is DENIED
in part (as to its request to dismiss for lack of standing) and
GRANTED in part (as to its request for summary judgment dismissing
the plaintiff’s claims) and the plaintiff’s cross motion for
summary judgment is DENIED.

The plaintiff’s claims are hereby

dismissed.
New Orleans, Louisiana, April 19, 2017

________________________
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE

35