Bey v. Fair Collections & Outsourcing

Filing 56

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 02/03/2014. (bas, Deputy Clerk)(c/m on 2/03/14 bca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
JAH JAH BEY,

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Plaintiff,

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v.

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Civil Case No.: PWG-13-279

FAIR COLLECTIONS & OUTSOURCING, *
Defendant.

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MEMORANDUM OPINION
This Memorandum Opinion addresses Plaintiff Jah Jah Bey’s Motion for Partial
Summary Judgment, ECF No. 23; Defendant Fair Collections & Outsourcing’s (“FCO”)
Opposition, ECF No. 28; and Plaintiff’s Reply, ECF No. 30; as well as Defendant’s Motion for
Summary Judgment, ECF No. 38; and Plaintiff’s Opposition, ECF No. 40. Defendant has not
filed a reply, and the time for doing so has passed. See Loc. R. 105.2. Having reviewed the
filings, I find that a hearing is unnecessary. See Loc. R. 105.6. For the reasons stated below,
Plaintiff’s Motion for Partial Summary Judgment IS DENIED, and Defendant’s Motion for
Summary Judgment IS DENIED.
I.

BACKGROUND 
Mr. Bey signed a month-to-month lease (“Lease”) for an apartment on August 1, 2009

and resided in the apartment through November 31, 2009. 1 Compl. ¶¶ 8 & 12, ECF No. 1; Pl.’s

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In reviewing the evidence related to a motion for summary judgment, the Court considers
undisputed facts, as well as the disputed facts viewed in the light most favorable to the nonmoving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009); George & Co., LLC v. Imagination

Mot. ¶¶ 11–12; Def.’s Mem. 1. The Lease provided that it would “automatically renew monthto-month unless either party gives at least 60 days written notice of termination or intent to move
out . . . .” Lease ¶ 3, Def.’s Opp’n Ex. C, ECF No. 28-3. On October 8, 2009, Plaintiff notified
the lessor that he was moving out on November 31, 2009. Pl.’s Oct. 8, 2009 Ltr., Def.’s Opp’n
Ex. D, ECF No. 28-4. According to Plaintiff, he “paid in-full all outstanding balances correlated
to [the Lease]” Compl. ¶ 11, including paying rent for August, September, October, and
November, Pl.’s Mot. ¶¶ 13–16. According to Defendant, the Lease obligated Plaintiff to pay
rent through December, 2009, but Plaintiff paid neither November nor December’s rent. Def.’s
Mem. 1–2; see Resident Ledger 2–4, Def.’s Opp’n Ex. A, ECF No. 28-1; Lease ¶ 3. The lessor
hired FCO to collect the debt that Plaintiff allegedly owed the lessor. Def.’s Mem. 2.
In January 2012, Plaintiff “obtained an up to date copy of his credit report from
Transunion, Experian, and Equifax” (the “Credit Reporting Agencies”) and “became aware that
‘FCO’ had been reporting a derogatory outstanding debt of 2,493.00 . . . on his personal credit
files.” Compl. ¶¶ 16–17. In Plaintiff’s view, this debt “was false and incorrect.” Id. ¶ 18. The
reported debt increased to $5,579.00. Pl.’s Mot. 1; Def.’s Mem. 2. Defendant insists that it
reported the debt that Plaintiff actually owed. Def.’s Mem. 2–3; see Resident Ledger; Lease;
Nov. 11, 2009 Ltr. to Pl., Def.’s Mem. Ex. B, ECF No. 28-2; Oct. 8, 2009 Ltr. from Pl. Plaintiff
alleges that he inquired about the debt on March 31, 2012 and again on April 18, 2012, Compl.
¶¶ 19 & 23, but FCO did not respond, id. ¶ 26. Plaintiff them “forwarded a detailed dispute”
regarding the debt to the Credit Reporting Agencies, which forwarded the dispute to FCO. Id.

Entm’t Ltd., 575 F.3d 383, 391–92 (4th Cir. 2009); Dean v. Martinez, 336 F. Supp. 2d 477, 480
(D. Md. 2004). “On cross motions for summary judgment, ‘each motion [is] considered
individually, and the facts relevant to each [are] viewed in the light most favorable to the nonmovant.’” Lynn v. Monarch Recovery Mgmt., Inc., No. WDQ-11-2824, 2013 WL 1247815, at *1
n. 5 (D. Md. Mar. 25, 2013) (quoting Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003)).
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¶¶ 27–28. Plaintiff insists that FCO continued to report the debt, even though it “knew that the
information furnished” regarding Plaintiff’s alleged debt “was being reported incorrectly.” Id.
¶¶ 29–30. FCO maintains that it investigated the debt and, finding it to be legitimate, reported it
as a debt that the consumer disputed. Def.’s Mem. 2–3.
Plaintiff filed suit against Defendant, alleging defamation and violations of the Fair Debt
Collections Practices Act (“FDCPA”), 15 U.S.C. §§ 1692e & 1692f, and the Fair Credit
Reporting Act, 15 U.S.C. § 1681s-2(b) (“FCRA”). Compl. He submitted a “Verification of
Complaint Affidavit” along with his Complaint, in which he stated that “each fact alleged [in his
Complaint] is true and correct of [his] own personal knowledge.” ECF No. 1-1. Plaintiff then
moved for summary judgment on liability on his FDCPA and FCRA claims. Pl.’s Mot. 2. He
submitted a notarized “Verification of Plaintiff’s Motion for Partial Summary Judgment” along
with his motion, in which he stated that “each fact alleged [in his Motion] is true and correct of
[his] own personal knowledge.” ECF No. 23.
In opposition, Defendant contends that “genuine disputes of material fact abound in this
case.” Def.’s Opp’n 1. Noting that FCO “established that the debt exists, that it was calculated
by Plaintiff’s creditor, that Plaintiff is liable for it, that it conducted a reasonable investigation to
verify the debt, that it never misrepresented or falsely represented the debt, and that is used
lawful means to attempt to collect the debt,” Defendant argues that “[a]ny one of these factual
disputes is a sufficient basis upon which to deny summary judgment.” Id. Defendant attaches
“the Resident Ledger pertaining to Mr. Bey’s rental”; a November 11, 2009 letter to Plaintiff
regarding overdue rental payments; the Lease; an October 8, 2009 letter from Plaintiff
terminating the Lease; Defendant’s Answers to Interrogatories; and letters from Defendant to
Plaintiff dated December 19, 2010, April 14, 2011, and September 1, 2011, Def.’s Opp’n Exs.
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A–F, ECF Nos. 28-1 – 28-6. The Resident Ledger shows that, as of December 1, 2009, Plaintiff
owed $5,878.72. Resident Ledger 4. As noted, the Lease provided that it would “automatically
renew month-to-month unless either party gives at least 60 days written notice of termination or
intent to move out,” Lease ¶ 3, and Plaintiff gave notice on October 8, 2009, Pl.’s Oct. 8, 2009
Ltr. Defendant’s Answers to Interrogatories establish that, after Plaintiff contacted FCO to
dispute the debt, FCO “contacted the creditor to investigate, and they provided additional
information about Plaintiff,” after which “FCO mailed a verification of debt” to Plaintiff.
Answer No. 7.
Defendant also filed its own summary judgment motion, along with various supporting
documents, instead of filing a cross-motion for summary judgment in compliance with this
Court’s Local Rules, see Loc. R. 105.2(c). In addition to the exhibits that Defendant included
with its Opposition to Plaintiff’s Motion, Defendant submitted with its summary judgment
motion the affidavit of Ms. Carroll, Plaintiff’s Answers to Interrogatories, a Debt Collector
Disclosure Statement, a letter from Mr. Bey disputing his debt, and an Identity Theft Victim’s
Complaint and Affidavit that Mr. Bey completed. Def.’s Mem. Exs. 2–3 & 8–10, ECF No. 38-4
– 38-5 & 38-10 – 38-12. Defendant’s entire argument, beyond its recitation of the summary
judgment standard, is as follows:
Plaintiff has failed to prove his entitlement to any damages under FDCPA
or FCRA. He has failed to prove that he either paid the rent and other charges for
November or December, 2009 to Riverstone [the lessor], and has failed to prove
that he was not obligated to do so. He has failed to prove that Defendant’s
investigation of his dispute was unreasonable. He has failed to prove that
Defendant either falsely represented or misrepresented the debt.
. . . Here, the authenticated documents and affidavit of Renee Carroll [(FCO’s
compliance officer)] demonstrate that there is no genuine dispute as to Plaintiff’s
indebtedness and as to Defendant’s compliance with FDCPA and FCRA. Under
these circumstances, there is no need for trial, and Defendant is entitled to
judgment as a matter of law.
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Def.’s Mem. 3–4. Defendant does not reference Plaintiff’s separate claims or the elements of
proof for any of Plaintiff’s claims.

See id.

Nor does Defendant acknowledge Plaintiff’s

verification of both his Complaint and his Motion, in which Plaintiff makes assertions that
directly dispute the evidence that Defendant has put forward.

See id.; Fed. R. Civ. P.

56(c)(1)(A).
II.

DISCUSSION
Summary judgment is proper when the moving party demonstrates, through “particular

parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
Greensboro, No. 12-1722, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary
judgment demonstrates that there is no evidence to support the nonmoving party’s case, the
burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute
exists as to material facts. See Celotex v. Catrett, 477 U.S. 317 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a motion for summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Instead, the evidentiary materials submitted must
show facts from which the finder of fact reasonably could find for the party opposing summary
judgment. Id.
To prevail on a claim for relief under the FDCPA, Plaintiff must prove that “(1) [he] has
been the object of collection activity arising from consumer debt, (2) the defendant is a debt [ ]
collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission
prohibited by the FDCPA.” Stewart v. Bierman, 859 F. Supp. 2d 754, 759–60 (D. Md. 2012)

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(citation omitted); see Puffinberger v. Commercion, LLC, No. SAG-13-1237, 2014 WL 120596,
at *4 (D. Md. Jan. 10, 2014); Sterling v. Ourisman Chevrolet of Bowie, Inc., 943 F. Supp. 2d
577, 585 (D. Md. 2013). The FDCPA prohibits a debt collector from using “false, deceptive, or
misleading representation or means,” such as “[c]ommunicating or threatening to communicate
to any person credit information which is known or which should be known to be false, including
the failure to communicate that a disputed debt is disputed,” as part of its debt collection
practices. 15 U.S.C. § 1692e. The FDCPA also prohibits a debt collector from using “unfair or
unconscionable means to collect or attempt to collect any debt,” including collecting any amount
that is not “expressly authorized by the agreement creating the debt or permitted by law.” 15
U.S.C. § 1692f.
The parties do not dispute that FCO is a debt collector or that FCO has been trying to
collect a consumer debt from Plaintiff. See id. But, the parties both have put forth evidence that
creates a genuine dispute of material fact as to whether Plaintiff paid (and Defendant should have
known that Plaintiff paid) all of his obligations under the Lease. If Plaintiff had no debt, or less
debt than Defendant contends, then Defendant’s actions could have violated the FDCPA when it
notified Plaintiff that “‘a negative credit report may be submitted to a credit reporting agency if
[he] fail[ed] to fulfill the terms of [his] credit obligations,” Compl. ¶ 64, and attempted to collect
$5,579 from Plaintiff, id. ¶ 66. See 15 U.S.C. §§ 1692e & 1692f. Thus, a genuine dispute exists
as to whether Defendant attempt to collect more than it was owed and/or communicated
information to the Credit Reporting Agencies that it should have known was false, such that
summary judgment is not appropriate in either party’s favor on Plaintiff’s FDCPA claim.
For his FCRA claim, Plaintiff must prove that Defendant, upon notification of Plaintiff’s
dispute as to the debt, failed to “‘conduct an investigation with respect to the disputed

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information,’ ‘review all relevant information provided by the consumer reporting agency ...,’
and ‘report the results of the investigation to the consumer reporting agency’ within thirty days
of being notified of the dispute.” Mavilla v. Absolute Collection Serv., Inc., ---- Fed. App’x ---, 2013 WL 4799313, at *5 (4th Cir. Sept. 10, 2013) (quoting 15 U.S.C. § 1681s-2(b)(1)).
Defendant puts forth evidence that it timely investigated and reported his debt as a debt that the
consumer disputed. Carroll Aff. ¶¶ 8–9. In Plaintiff’s Motion, which he verified, he argues that,
because he did not have a debt, Defendant could not have investigated and reported the disputed
information properly because it never reported that he was not indebted to the lessor. See Pl.’s
Mot. ¶¶ 35–39.

Because a genuine dispute exists as to whether Defendant investigated

Plaintiff’s debt and reported the results of the investigation to the agency, summary judgment is
not appropriate in either party’s favor on Plaintiff’s FCRA claim.
As for defamation, Plaintiff must prove: “‘“(1) that the defendant made a defamatory
statement to a third person, (2) that the statement was false, (3) that the defendant was legally at
fault in making the statement, and (4) that the plaintiff thereby suffered harm.”’” Piscatelli v.
Van Smith, 35 A.3d 1140, 1147 (Md. 2012) (quoting Indep. Newspapers, Inc. v. Brodie, 966
A.2d 432, 448 (Md. 2009) (quoting Offen v. Brenner, 935 A.2d 719, 723–24 (Md. 2007))). Here,
the alleged false statement is that Plaintiff had an outstanding debt. Compl. ¶ 72. Because, as
discussed, a genuine dispute exists regarding whether Plaintiff has any outstanding debt under
the Lease, summary judgment is not appropriate in Defendant’s favor on Plaintiff’s defamation
claim.
III.

CONCLUSION
Plaintiff’s Motion for Partial Summary Judgment is DENIED, and Defendant’s Motion

for Summary Judgment is DENIED. A status call is SCHEDULED for Friday, February 14,

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2014, at 10:30 a.m. The dial-in number for this call is [phone], the access code is
9549728, and the participant password is 021414.
A separate order shall issue.

Dated: February 3, 2014

/S/
Paul W. Grimm
United States District Judge

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