Brown v. Comcast Corporation et al

Filing 47

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS SWC's motion for summary judgment, D. 44.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
DONALD L. BROWN,
)
)
Plaintiff,
)
)
v.
)
Case No.: 18-cv-10238-DJC
)
)
SOUTHWEST CREDIT SYSTEMS, L.P.,
)
et al.,
)
)
Defendants.
)
)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

December 5, 2018

Introduction
Plaintiff Donald Brown (“Brown”) has filed this lawsuit pro se alleging violations of the

Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., the Massachusetts Fair Debt Collection Act
and the Massachusetts Consumer Protection Act (“MCPA”), Mass. Gen. L. c. 93A. D. 1-1. Over
the course of this litigation, three Defendants have been dismissed by stipulation, D. 28-30, leaving
only Defendant Southwest Credit Systems, L.P. (“SWC”).

SWC has moved for summary

judgment. D. 44. For the reasons stated below, the Court ALLOWS SWC’s motion.
II.

Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material

fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the
1

outcome of the suit under the applicable law.” Santiago–Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).
The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.”
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations
or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must,
with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a
trier of fact could reasonably resolve that issue in her favor,” Borges ex rel. S.M.B.W. v. Serrano–
Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, that requires the production of evidence
that is ‘significant[ly] probative.’” Id. (alteration in original) (quoting Anderson, 477 U.S. at 249).
The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
When a motion for summary judgment is unopposed, the Court “is still bound to review
the case on the merits based on the uncontroverted facts before [the Court].” Cordi-Allen v.
Halloran, 470 F.3d 25, 28 (1st Cir. 2006) (citing Fed. R. Civ. P. 56(e)). “[E]ven an unopposed
motion for summary judgment should not be granted unless the record discloses that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Rivera-Torres v. Rey-Hernández, 502 F.3d 7, 13 (1st Cir. 2007) (citing Vélez v. Awning
Windows, Inc., 375 F.3d 35, 42 (1st Cir. 2004)). “In most cases, however, a party’s failure to
oppose summary judgment is fatal to its case.” Ferreira v. Mortg. Elec. Registration Sys., Inc.,
794 F. Supp. 2d 297, 301 (D. Mass. 2011) (citation and internal quotation marks omitted).

2

III.

Factual Background
Because Brown did not did not file an opposition or move for additional time to do so, the

Court deems the following supported facts from SWC’s motion for summary judgment to be
admitted. See Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st Cir. 2003) (quoting
D. Mass. L.R. 56.1) (providing that “[m]aterial facts of record set forth in the statement required
to be served by the moving party will be deemed for purposes of the motion to be admitted by the
opposing parties unless controverted by the statement required to be served by opposing parties”)
(internal quotation marks omitted).
SWC sent Brown a letter on October 20, 2016 informing him that his “account ha[d] been
assigned to [its] office for collection” and advising him that absent a response within 30 days of
receipt, SWC would assume the debt was valid. D. 45-3 at 2. On November 18, 2016, SWC
received a copy of the letter from Brown with the words “Disputed! No Calls!” written over the
text. D. 45-6 at 2. Brown included a letter explaining that Comcast had quoted him a lower price
than the one he had been charged and accordingly “refuse[d] to pay the enclosed bill.” D. 45-6 at
3. He also included a copy of his Comcast bill with “Disputed” written on it. D. 45-6 at 5. On
July 14, 2017, SWC sent Brown another letter advising him that SWC had received his dispute
regarding the debt and confirmed that his balance was nonetheless due in full at that time. D. 454 at 2.
IV.

Procedural History
Brown filed this action in state court against four Defendants on January 8, 2018. D. 1-1.

On February 6, 2018, the matter was removed to this Court. D. 1. Several months later, three
Defendants were dismissed by stipulation, D. 28-30, leaving SWC as the only remaining
Defendant. Accordingly, the only counts pending before the Court are Counts Eleven through

3

Fourteen of Brown’s complaint, which pertain to SWC. SWC has now moved for summary
judgment. D. 44. Brown, acting pro se, did not file an opposition. Brown also did not appear at
the noticed and scheduled hearing on November 27, 2018 on this motion. That day, in light of
Brown’s failure to appear, the Court took the motion under advisement on the papers. D. 46.
V.

Discussion
SWC argues initially that the Court need not conducts a merits analysis because Brown

failed to respond to discovery requests within the time allotted under Fed. R. Civ. P. 36 and they
are deemed to have admitted that SWC did not commit any of the violations alleged in the
complaint. D. 45 at 2-3. Although the Court might be justified in doing so, see Fed. R. Civ. P.
56(e) (indicating that the Court may issue any “appropriate order” if a party fails to properly
address another party’s assertion of fact as required by Rule 56(c)”); see also Ferreira, 794 F. Supp.
2d at 301, since even under a merits analysis, the Court concludes that SWC is entitled to summary
judgment, the Court turns now to the merits and need not reach SWC’s alternative basis for
granting summary judgment.
A.

FDCPA and Massachusetts Fair Debt Collection Act (Counts Eleven and
Twelve)___________________________________________________________

Brown alleges that SWC violated both the FDCPA and the Massachusetts Fair Debt
Collection Act by “continuously dunn[ing] [Brown] regarding an alleged overdue balance.” D. 11 ¶¶ 89, 92.
The Court first considers the FDCPA claim (Count Eleven). Brown must establish three
elements for a viable FDCPA claim: “(1) that [he] was the object of collection activity arising
from consumer debt, (2) defendant[] [is a] debt collector[] as defined by the FDCPA, and (3)
defendant[] engaged in an act or omission prohibited by the FDCPA.” O’Connor v. Nantucket
Bank, 992 F. Supp. 2d 24, 30 (D. Mass. 2014). The Court’s analysis turns on the final element.
4

Brown did not specify which provision of the FDCPA he claimed SWC had violated, but the Court
and SWC understand him to be referring to 15 U.S.C. § 1692d.1 Section 1692d prohibits debt
collectors from “engag[ing] in any conduct the natural consequence of which is to harass, oppress,
or abuse any person in connection with the collection of a debt.” Id. An action to enforce liability
under the FDCPA may be brought in federal court “within one year from the date on which the
violation occurs.” 15 U.S.C. § 1692k(d). Because Brown filed this lawsuit on January 8, 2018,
SWC could only be liable under the FDCPA for conduct that occurred between January 8, 2017
and January 8, 2018.
Based upon the uncontroverted record here, SWC contacted Brown only one time during
the relevant time period by means of the July 14, 2017 letter informing Brown that SWC had
received his dispute regarding the debt and confirmed that his balance was nonetheless due in full
at that time. D. 45-4; D. 45-5 at 3-4. In similar circumstances, a court in this district has previously
held that a plaintiff’s claim under § 1692d failed as a matter of law because she did not show how
the defendant’s singular letter to her was sufficiently egregious so as to, on its own, give rise to
liability under the FDCPA. Pollard v. Law Office of Mandy L. Spaulding, 967 F. Supp. 2d 470,
475 (D. Mass. 2013). Like the letter in Pollard, here the letter to Brown did not contain obscene
or threatening language. Id. And like in Pollard, here the Court concludes that the singular letter
from SWC in response to Brown’s dispute letter does not constitute harassment or abuse.
Even if the statute of limitations did not apply, Brown’s claim under the FDCPA would
still fail. Section 1692d prohibits “only oppressive and outrageous conduct.” Id. (citation and

1

To the extent Brown may be indirectly invoking a claim under § 1692e for “false, deceptive, or
misleading representation or means in connection with the collecting of any debt,” there is no
evidence, or even an allegation in the complaint, to support the contention that such a deception
occurred.
5

internal quotation marks omitted). The entirety of Brown’s evidence of “dunning” consists of his
response to SWC’s interrogatory in which he stated: “The defendant sent two dunning letters and
made three dunning phone calls to the plaintiff[.]” D. 45-7 at 5.2 SWC admits that the October
2016 letter it sent Brown was in fact a “dunning” letter, D. 45 at 7, but provides records showing
that SWC ceased initiating contact with Brown after receiving his dispute letter in November 2016,
D. 45-5 at 3-4. As discussed above, the only other contact SWC made with Brown was to inform
him about the results of its investigation in response to his dispute of the debt. Brown’s allegations
of dunning phone calls that violate the FDCPA are similarly insufficient to stave off summary
judgment because there is no evidence in the record about which calls Brown deemed to be
“dunning,” how the calls ran afoul of the FDCPA or even that any calls actually occurred after
Brown requested that SWC not contact him. The Court, therefore, grants SWC’s motion for
summary judgment as to Count Eleven.
Next, the Court considers Brown’s identical allegations under the “Massachusetts Fair
Debt Collection Practices Act” (Count Twelve). There is no statute with that name under
Massachusetts law. O’Connor, 992 F. Supp. 2d at 33 n.3. The Court understands Brown to be
referring either to the debt collection regulations, 940 C.M.R. § 7.00, or to Mass. Gen. L. c. 93,
§ 49, which prohibits the collection of debts in an “unfair, deceptive or unreasonable manner.”
Courts have held conclusively, however, that there is no private right of action under either
provision. See, e.g., O’Connor, 992 F. Supp. at 33-34; Jones v. NCO Fin. Servs., Civ. A. No. 1312101, 2014 WL 6390633, at *4 (D. Mass. Nov. 14, 2014). A private right of action does exist
under Mass. Gen. L. c. 93A for vindicating a private citizen’s rights for unfair or deceptive acts or

2

Brown has not supplemented his answers with the exact dates of the phone calls from his phone
records. See D. 45-7 at 5.
6

practices, which Brown asserts in Count Fourteen and which the Court addresses below. With
respect to Count Twelve, however, SWC is entitled to summary judgment.
B.

FCRA (Count Thirteen)

Brown alleges that SWC violated the FCRA by “failing to remove references to [Brown’s]
alleged delinquent account from the three national credit reporting agencies,” D. 1-1 ¶ 95, and
knew or should have known that failing to do so “would cause great harm to [Brown],” id. ¶ 96.
Brown does not specify a particular provision of the FCRA that has been violated but the Court
understands him to be referring to 15 U.S.C. § 1681s-2. Section 1681s-2 is the provision under
which a “furnisher of information,” such as a debt collector, can be sued under the FCRA. Chiang
v. MBNA, 634 F. Supp. 2d 164, 167 (D. Mass. 2009) (quoting Vazquez-Garcia v. Trans Union de
P.R., 222 F. Supp. 2d 150, 154 n.5 (D.P.R. 2002)) (noting that courts consider a “furnisher of
information” under § 1681s-2 to be “an entity which transmits information concerning a particular
debt owed by a particular consumer to consumer reporting agencies . . . ”).
Section 1681s-2 of the FCRA imposes two types of duties on furnishers of credit
information. First, a furnisher must ensure that the information it provides to consumer reporting
agencies is accurate. 15 U.S.C. § 1681s-2(a). Second, “when a furnisher receives notice of a
dispute as to the completeness or accuracy of any information provided to a consumer reporting
agency, the furnisher is required to conduct an investigation, report the results of the information
to the consumer reporting agencies, and, if any inaccuracies are identified, modify, delete, or block
the reporting of that erroneous information.” Chiang, 634 F. Supp. 2d at 167 (citing 15 U.S.C. §
1681s-2(b)).
There is no evidence in the record that SWC violated either type of duty enumerated in
§ 1681s-2.

As to the first type, there is no evidence that FCRA provided any inaccurate

7

information to a consumer reporting agency. The undisputed evidence shows that SWC conducted
an investigation in response to Brown’s notice of dispute and concluded that Brown owed the debt
in full to SWC. See D. 45-4 (informing Brown that “[t]he results of [SWC’s] investigation
confirm[ed] that the balance indicated [was] due in full . . . ”). An entry on Brown’s SWC account
history from after Brown submitted his dispute to SWC corroborates the investigation by stating
that an SWC user “VERIFIED BALANCE OWED [WAS] CORRECT.” D. 45-5 at 4. As to the
second type of duty, Brown’s allegations lack an essential prerequisite to liability. “[C]ourts have
‘uniformly’ concluded that Section 1681s-2(b) ‘provides a private cause of action only if the
furnisher received notice from a consumer reporting agency, as opposed to plaintiff alone, that the
credit information was disputed.’” Chiang, 634 F. Supp. 2d at 167 (quoting Gibbs v. SLM Corp.,
336 F. Supp. 2d 1, 11-12 (D. Mass. 2004)). Brown does not allege that he disputed the debt with
any consumer reporting agency or that the credit reporting agency provided SWC with notice of
the dispute. The Court, therefore, holds that SWC is entitled to summary judgment on Brown’s
FCRA claim (Count Thirteen).
C.

MCPA (Count Fourteen)

Brown alleges that SWC violated the MCPA, Chapter 93A, by behaving in a way that
“shocks the conscience and is unfair and deceptive business practices [sic].” D. 1-1 ¶ 101. To
prevail on this cause of action, Brown “must prove that a person who engaged in trade or business
committed an unfair or deceptive trade practice and that [he] suffered a loss of money or property
as a result.” Markle v. HSBC Mortg. Corp. (USA), 844 F. Supp. 2d 172, 185 (D. Mass. 2011)
(citation and internal quotation marks omitted). In determining whether a trade practice is unfair,
courts generally consider “(1) whether the practice . . . is within at least the penumbra of some
common-law, statutory or other established concept of unfairness; (2) whether it is immoral,

8

unethical, oppressive or unscrupulous; [and] (3) whether it causes substantial injury to consumers
(or competitors or other businessmen).” Mass. Eye and Ear Infirmary v. QLT Phototherapeutics,
Inc., 552 F.3d 47, 69 (1st Cir. 2009) (alterations in original) (citation and internal quotation mark
omitted). An act is deceptive if it has “the capacity to mislead consumers, acting reasonably under
the circumstances, to act differently from the way they otherwise would have acted.” Maldonado
v. AMS Servicing LLC, Nos. 11–40044–FDS, 11–40219–FDS, 2012 WL 220249, at *7 (D. Mass.
Jan. 24, 2012) (citing Aspinall v. Philip Morris Cos., 442 Mass. 381, 394 (2004) (internal quotation
marks omitted)).
To the extent Brown’s claim is predicated upon the existence of a violation of the FDCPA
or FCRA, a derivative MCPA claim cannot stand. As discussed above, there is no evidence in the
record that SWC violated the FDCPA or the FCRA.
The Court recognizes that “it is neither necessary nor sufficient that a particular act or
practice violate common or statutory law” to make out a claim under the MCPA. Kozaryn v.
Ocwen Loan Servicing, LLC, 784 F. Supp. 2d 100, 102 (D. Mass. 2011) (quoting Mass. Eye and
Ear Infirmary, 552 F.3d at 66 (internal quotation marks omitted)). In this case, however, Brown’s
allegations do not provide a sufficient factual basis otherwise to sustain a claim under the MCPA.
Even considering the allegations in the complaint, Brown has failed to identify a way in which
SWC acted unfairly or deceptively. Brown’s allegation that SWC failed to remove references to
his debt from the national credit reporting agencies does not rise to the level of an “unfair or
deceptive” practice. See Leet v. Cellco P’ship, Civ. A. No. 06-40096-FDS, 2007 WL 3332803, at
*2 (D. Mass. Oct. 19, 2007) (concluding that taking a long time to remove “derogatory
information” from a credit report was not a Chapter 93A violation, as there was no attempt to
“manipulate or deceive” the plaintiff). Similarly, Brown fails to provide any facts suggesting that

9

the three calls and two letters he received from SWC were deceptive. The Court, therefore, grants
summary judgment to SWC on Count Fourteen.
VI.

Conclusion
For the foregoing reasons, the Court ALLOWS SWC’s motion for summary judgment,

D. 44.
So Ordered.
/s/ Denise J. Casper
United States District Judge

10