Collier v. Professional Bureau of Collections

Filing 19

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/28/12. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JESSICA COLLIER,

:

Plaintiff,

:

v.

:

PROFESSIONAL BUREAU OF
COLLECTIONS,

:

Civil Action No. GLR-12-860

:
Defendant.
:

MEMORANDUM OPINION
Pending before this Court is a Motion to Vacate the Entry
of

Default

and

Alternative,

to

for

Dismiss
Summary

Plaintiff’s
Judgment

Complaint

filed

by

Professional Bureau of Collections (“PBC”).
The

Plaintiff

in

this

case,

Opposition to the Motions.

Jessica

fully briefed and no hearing is necessary.

the

in

the

Defendant

(See ECF No. 8).

Collier,

(ECF No. 9).

or,

has

filed

an

The issues have been
See Local Rule 105.6

(D.Md. 2011). For the reasons outlined below, both Motions will
be granted.
I.

BACKGROUND

On March 20, 2012, Ms. Collier filed a civil Complaint with
this Court alleging that PBC violated provisions of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. (“the

1

Act”).1
2012,

Specifically, Ms. Collier alleges that on March 12,
a

PBC

answering

representative

machine

at

her

left

a

voicemail

father’s

message

residence.

Ms.

on

an

Collier

maintains that she has not lived at the residence for over ten
years.

She further avers that the voicemail message indicated

that PBC was seeking to collect a debt she owed to PBC’s client,
G.E. Consumer Finance (“GECF”).
the

voicemail

because
third

the

Act

with

[a]

sense

of

See 15 U.S.C.A § 1692(c)(b), (e)(10) (West 2012).

As

the

message

message

part[y]”

urgency.

In sum, Ms. Collier claims that

and

violated

was

an

several

unlawful

impermissibly

sections

of

“communication

created

a

false

to damages, Ms. Collier alleges that because of the voicemail
left

by

father

PBC,

over

she

suffered

allegations

she

a

“rift”
was

between

not

paying

herself
her

and

debts.

her
Ms.

Collier contends that she, in fact, is not indebted to anyone
and that she was a victim of identity theft.
Ms. Collier served the Complaint upon PBC on April 6, 2012.
(See ECF No. 5).

On April 30, 2012, Ms. Collier filed a Motion

for Clerk’s Entry of Default (the “Default Motion”).
6).

(ECF No.

On April 30, 2012, PBC became aware of the Complaint and

Default Motion.
Collier

seeking

Thereafter, on May 1, 2012, PBC contacted Ms.
a

withdrawal

of

1

the

Default

Motion

and,

Unless otherwise noted, the facts contained herein are
taken from the Complaint and are viewed in the light most
favorable to Plaintiff.
2

according to PBC, Ms. Collier agreed to the withdrawal.
Mot. at 4, ECF No. 8-1).

(Def.’s

Ms. Collier disputes this agreement,

however, indicating that she only agreed to take PBC’s request
“under advisement.”

(Pl.’s Opp’n ¶ 8, ECF No. 9).

On May 2,

2012, the Clerk entered an Order of Default against PBC for
failure to file a responsive pleading to the Complaint.2
No. 7).

(ECF

On May 3, 2012, PBC filed the pending Motion to Vacate

the Entry of Default and to Dismiss or, in the alternative, for
Summary Judgment as to Ms. Collier’s Complaint.
II.
A.

DISCUSSION

Motion to Vacate Clerk’s Entry of Default
The

Court

finds

that

good

cause

exists

to

vacate

the

Clerk’s Entry of Default.
PBC provides three reasons3 in support of its Motion to
Vacate: (1) PBC’s failure to file a responsive pleading was not
willful;

(2)

vacating

the

default

will

not

prejudice

Collier; and (3) PBC has defenses that are meritorious.

2

Ms.

(Def.’s

The actual Order in the Clerk’s Office is dated April 2,
2012.
This clearly is an error as the time for PBC to respond
to the Complaint would have not yet run. In fact, the Order of
Default is docketed May 2, 2012.
3
PBC cites to Park Corp v. Lexington Ins. Co., 812 F.2d
894, 896 (4th Cir. 1987) as establishing the three-part test
courts consider in determining whether to vacate a clerk’s entry
of default. More recent jurisprudence, however, has established
a six-part test that does not appear to take into consideration
whether the defaulting party’s actions were willful. See Payne
ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204–05 (4th
Cir. 2006)
3

Mot. at 9-15).

Ms. Collier opposes vacating the Clerk’s Entry

of Default on the grounds that the acts of PBC, as alleged in
her Complaint, are intentional and “despicable.”
6).

(Pl.’s Opp’n ¶

She also argues that PBC had ample opportunity to file a

response, but has failed to do so.

(Id. ¶ 5).

Rule 55 of the Federal Rules of Civil Procedure governs the
setting aside of an entry of default or a default judgment.
Specifically,

Rule

55(c)

states

in

pertinent

part

that

“the

court may set aside an entry of default for good cause . . . .”
While it has not specifically defined “good cause” in the Rule
55(c) context, the United States Court of Appeals for the Fourth
Circuit has noted that
[w]hen deciding whether to set aside an entry of
default, a district court should consider whether the
moving party has a meritorious defense, whether it
acts
with
reasonable
promptness,
the
personal
responsibility of the defaulting party, the prejudice
to the party, whether there is a history of dilatory
action, and the availability of sanctions less
drastic.
Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204–05
(4th

Cir.

default

2006).

are

PBC

correctly

generally

points

disfavored.

out

See

that

Roberts

entries
v.

of

Genesis

Healthcare Corp., No. WDQ-06-2305, 2007 WL 530493, at *2 (D.Md.
Feb.

13,

resolution

2007)
of

(“Where
disputes

procedural grounds.”).

possible,
on

their

Federal
merits,

Courts
rather

favor
than

the
on

“Any doubts about whether relief should

4

be granted should be resolved in favor of setting aside the
default so that the case may be heard on the merits.”

Tolson v.

Hodge, 411 F.2d 123, 130 (4th Cir. 1969).
Applying the aforementioned principles to the present case,
this Court finds that good cause exists to vacate the Clerk’s
Entry

of

Default.

First,

PBC

asserted

meritorious defenses in its Motion.

multiple

potentially

For example, Ms. Collier

alleges that PBC impermissibly communicated with a third party
concerning her outstanding debt.

(Compl. ¶¶ 12-13, ECF No. 1).

PBC argues, however, that Ms. Collier conceded in her Complaint
that she did use this number at one point in time and that the
voicemail directed the listener hang up or disconnect if they
were not Ms. Collier.

(Def.’s Mot. at 13-14).

Ms. Collier also

claims PBC used deceptive means to attempt to collect the debt.
(Compl.

¶

15).

PBC

contends,

however,

that

the

voicemail

provided full disclosure as to the nature and purpose of the
call.

(See Def.’s Mot. at 13-14).
Second,

the

Court

finds

that

PBC

acted

with

reasonable

promptness by filing its Motion to Vacate within seventy-two
hours of Ms. Collier’s Default Motion.

In fact, PBC filed its

Motion to Vacate on the very day the Clerk entered an Order of
Default. (See ECF Nos. 6-8).

Third, the Court finds that PBC

acted responsibly and intended to file an answer but instead
acted upon a misunderstanding between itself and Ms. Collier.
5

Specifically,

prior

to

the

Clerk’s

Entry

of

Default,

there

appeared to be at least some discussion between the parties
regarding the withdrawal of Ms. Collier’s Default Motion.
fact,

by

decision

Ms.
of

advisement.”

Collier’s

whether

to

own

admission,

withdraw

the

she

was

Default

taking

Motion

In
the

“under

These discussions, prior to the entry of default,

suggest that PBC’s default was not borne of irresponsibility,
but rather, that they demonstrated and acted with a measure of
personal responsibility.
Fourth, Ms. Collier will not be prejudiced if the Clerk’s
Entry of Default is vacated because the case is in its infancy.
Fifth, the Court finds that there has not been a history of
dilatory action.

Lastly, the Court finds that sanctions are not

warranted in this case given PBC’s good faith basis to believe
that Ms. Collier was willing to provide PBC with additional time
to answer the Complaint.

In addition, the case will terminate

quickly for reasons unrelated to the Clerk’s Entry of Default.
For all of the aforementioned reasons, this Court finds that
good

cause

exists

and

PBC’s

Motion

to

Vacate

the

Entry

of

Default is granted.
B.

Motion to
Judgment
Turning

to

Dismiss

the

or,

PBC’s

in

the

Motion

Alternative,

to

Dismiss

for

or,

Summary

in

the

Alternative for Summary Judgment, pursuant to Rules 12(b)(6) and

6

56, the Court finds that Ms. Collier has failed to state a claim
upon which relief may be granted and that there is no genuine
dispute as to any material fact.
1.

Motion to Dismiss Standard of Review

A Federal Rule of Civil Procedure 12(b)(6) motion should be
granted

unless

an

adequately

stated

claim

is

“supported

by

showing any set of facts consistent with the allegations in the
complaint.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561

(2007) (internal citations omitted); see Fed.R.Civ.P. 12(b)(6).
“A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S.
at 555.
“naked

A complaint is also insufficient if it relies upon
assertions

devoid

of

further

factual

enhancement.”

Iqbal, 556 U.S. at 678 (internal citations omitted).
In order to survive a Rule 12(b)(6) motion to dismiss, a
complaint must set forth “a claim for relief that is plausible
on

its

face.”

Id.;

Twombly,

550

U.S.

at

570.

A

claim

is

facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal, 556

U.S. at 678; Twombly, 555 U.S. at 556.
In
construe

considering
the

a

complaint

Rule
in

12(b)(6)
the
7

light

motion,
most

the

Court

favorable

to

must
the

plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.

Mylan Labs., Inc. v. Matkari, 7 F.3d

1130, 1134 (4th Cir. 1993).
court

may

also

examine

In addition to the complaint, the
“documents

incorporated

into

the

complaint by reference, and matters of which a court may take
judicial notice.”

Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 322 (2007).

“Conclusory allegations regarding the

legal effect of the facts alleged” need not be accepted.
v. Havel, 43 F.3d 918, 921 (4th Cir. 1995).
purpose

of

the

complaint

is

to

provide

Labram

Because the central
the

defendant

“fair

notice of what the plaintiff’s claim is and the grounds upon
which

it

supported

rests,”
by

some

the

plaintiff’s

factual

legal

basis

allegations

sufficient

defendant to prepare a fair response.

to

must

allow

be
the

Twombly, 550 U.S. at 556

n.3.
a.

Motion to Dismiss Analysis

In the present case, Ms. Collier alleges violations of 15
U.S.C. §§ 1692e(10)-(11) and 1692c(b).

Section 1692e(10) states

in pertinent part that “[t]he use of false representation or
deceptive means to collect or attempt to collect any debt or to
obtain information concerning a customer” is in violation of the
Act.

It is also a violation of the Act if a debt collector
fail[s]
to
disclose
in
the
initial
written
communication with the consumer, and in addition, if
the initial communication with the consumer is oral,
8

in that initial communication, that the debt collector
is attempting to collect a debt and that any
information obtained will be used for that purpose,
and
the
failure
to
disclose
in
subsequent
communications that the communication is from a debt
collector, except that this paragraph shall not apply
to a formal proceeding made in connection with a legal
action.
15 U.S.C.A § 1692e(11) (West 2012).

Finally, Section 1692c(b)

states the following:
Except as provided in section 1692b, 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 post judgment judicial remedy, a debt
collector may not communicate in connection with the
collection of any debt with any person other than a
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.
Here,

there

is

no

dispute

as

message left on the answering machine.

to

the

actual

voicemail

It is as follows:

Answering Machine: Hi, you have reached Dan. Please
leave your name and number in a short message and I’ll
get back with you. Thank You.
Caller: This is a message for Jessica Collier, if we
have reached the wrong number for this person, please
contact us back at 1-800-270-9685 to remove your
number.
If you are not Jessica Collier, please hang
up or disconnect. If you are Jessica Collier, please
continue to listen to this message.
There will now
be a three second pause in this message.
By
continuing to listen to this message, you acknowledge
you are Jessica Collier.
You should not listen to
this message so that others can hear it as it does
contain personal and private information.
There will
now be a three second pause in this message to allow
you to listen to the message in private.
This is
Heather Cunningham calling from the Professional
9

Bureau of Collections.
This communication is from a
debt collector. This is an attempt to collect a debt,
and any information obtained will be used for this
purpose.
Please contact me about an important
business matter.
My phone number is 1-800-270-9685
and my extension is 4706.
This communication and voicemail is the gravamen of Ms.
Collier’s entire Complaint.

She concedes in her Complaint that

this telephone number is associated with an address she “lived
at over 10 years ago.”

(See Compl. ¶ 5).

She does not allege

that PBC knew she could not be reached at that particular phone
number.
Looking at the message in the light most favorable to Ms.
Collier,
abusive.

it

was

neither

deceptive,

threatening,

coercive,

or

In fact, the message provided ample opportunity for a

person, other than Ms. Collier, who received the message to
ignore it or delete it.

The communication was very specific in

that it was directed only to Ms. Collier.

In light of the

pleading standards set forth above, the communication is not
actionable and, thus, the Court grants the Motion to Dismiss for
failure to state a claim upon which relief can be granted.
2.

Motion for Summary Judgment Standard of Review

Summary judgment is only appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”

10

Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
323-25 (1986).

In reviewing a motion for summary judgment, the

Court views the facts in a light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).
Once a motion for summary judgment is properly made and
supported, the opposing party has the burden of showing that a
genuine dispute exists.

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986).

“[T]he 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, 477 U.S. at 247-48.

A “material fact” is a fact that might affect the outcome
of a party’s case.

Id. at 248; JKC Holding Co. v. Wash. Sports

Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
fact

is

considered

substantive

law,

and

to

be

“material”

“[o]nly

disputes

is
over

Whether a

determined
facts

by

that

the

might

affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”

Anderson, 477

U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001).
A “genuine” issue concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to return
11

a verdict in the nonmoving party’s favor.
248.

Anderson, 477 U.S. at

Rule 56(e) requires the nonmoving party to go beyond the

pleadings and by its own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.
Celotex Corp., 477 U.S. at 324.
a.

Motion for Summary Judgment Analysis

In this case, there is no dispute that the information
obtained regarding the address and phone number was obtained by
PBC’s client, GECF.
PBC’s

corporate

According to the undisputed affidavit of

counsel,

Gregory

Gerkin,

Ms.

associated with the phone number that was dialed.
Ex. C, ¶ 8).

Collier

was

(Def.’s Opp’n

In fact, by Ms. Collier’s own admission, she was

at one time associated with the residence corresponding to that
phone number.
Ms. Collier’s claim that she was the victim of identity
theft, which resulted in the debt owed to GECF, does not convert
PBC’s efforts to collect on the alleged debt into a violation of
the Act.

As a result, this Court finds that there is no genuine

dispute as to any material fact, the alleged conduct of PBC is
not actionable, and PBC is entitled to judgment as a matter of
law.

12

III. CONCLUSION
For
Vacate

the
the

reasons
Entry

of

outlined
Default

above,
and

to

Defendant’s
Dismiss

Motion

or,

in

to
the

Alternative, for Summary Judgment (ECF No. 7) is GRANTED.
separate order will follow.
Entered this 28th day of August, 2012
/s/
___________________________
George L. Russell, III
United States District Judge

13

A