Miller v. ASSET ACCEPTANCE, LLC et al

Filing 13

Memorandum and Order Granting Defendant's 9 Motion for Summary Judgment and Dismissing Case. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN MILLER,
Plaintiff,
v.

Case No. 12-15441

ASSET ACCEPTANCE, LLC, et al.,

HON. AVERN COHN

Defendant.
___________________________________/
MEMORANDUM AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 9)
AND
DISMISSING CASE
I. Introduction
This is a consumer right case. Plaintiff John Miller is suing defendant Asset
Acceptance, LLC and others1 claiming that defendant engaged in unlawful debt
collection practices. Plaintiff’s claim arises under the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692, et seq.
Before the Court is defendant’s motion for summary judgment on the grounds
that the complaint is barred by the one year statute of limitations. Defendant says that
the evidence shows the last time defendant contacted plaintiff was more than one year
before plaintiff filed the complaint. The Court agrees. Accordingly, defendant’s motion
will be granted.

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The complaint names “Doe 1-5.” The Does have not been identified. Therefore
the Court considers Asset Acceptance, LLC as the sole defendant.

II. Background
Defendant is a debt collection agency. This case concerns a consumer debt
owed by plaintiff. Defendant owns the account and engaged in collection activity, which
consisted of calling plaintiff’s home telephone number. Plaintiff alleges that defendant
called his home telephone number repeatedly, up to four times a day “through January
8, 2012.” Plaintiff alleges that defendant’s actions violate 15 U.S.C. § 1692d(5)
because the calls were made with intent to annoy, abuse, or harass.
III. Summary Judgment
“The court shall grant summary judgment if the movant shows 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). A moving party may meet that burden “by
‘showing’ – that is, pointing out to the district court -- that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Revised Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). The revised Rule also provides the consequences of failing to
properly support or address a fact:
If a party fails to properly support an assertion of fact or fails to properly
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address another party’s assertion of fact as required by Rule 56(c), the
court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials –
including the facts considered undisputed – show that the movant is
entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When the moving party has met its burden under Rule 56, “its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Ultimately a district court must determine whether the record as a whole presents a
genuine issue of material fact, id. at 587, drawing “all justifiable inferences in the light
most favorable to the non-moving party,” Hager v. Pike County Bd. Of Education, 286
F.3d 366, 370 (6th Cir. 2002).
IV. Analysis
Defendant argues that plaintiff’s claim is barred by the one year statute of
limitations under the FDCPA. 15 U.S.C. § 1692k(d) provides:
An action to enforce any liability created by this title may be brought in any
appropriate United States district court without regard to the amount in
controversy, or in any other court of competent jurisdiction within one year from
the date on which the violation occurs.
As noted above, plaintiff filed the complaint on December 11, 2012. Thus, the question
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is whether defendant engaged in any allegedly prohibited conduct on or after
December 11, 2011. Defendant says the evidence shows that the last call defendant
placed to plaintiff’s home telephone number was on December 8, 2011. Plaintiff filed
suit on December 11, 2012. Thus, defendant says plaintiff’s claim is time barred.
To support its contention that defendant did not engage in any prohibited activity
within the statute of limitations, defendant submits its business record for plaintiff’s
account which is reflected in a document entitled Claim Summary. From what can be
gleaned,2 the last outbound call placed to plaintiff’s home telephone number was on
December 8, 2011. The Claim Summary shows activity after that date, but that activity
does not show that defendant contacted plaintiff. Indeed, there is an inbound call (to
defendant) on January 8, 2011 apparently from someone identifying themself as
counsel for plaintiff. Defendant also submits the declaration (signed but not notarized)
of Kenneth Proctor, a Litigation Manager for defendant. He states that the Claim
Summary (which he calls “collection notes”) show that the last call defendant placed to
plaintiff was on December 8, 2011. Proctor also states that defendant conducted a
review of its business records to locate all calls to plaintiff’s home telephone number
after December 8, 2011. No such calls were found.
Defendant has also submitted a copy of demand letter it received from plaintiff’s
counsel, dated November 9, 2011. The letter states in relevant part:
In a direct violation of 15 USC 1692d, Asset Acceptance placed a grossly
excessive number of calls to Mr. Miller. Asset Acceptance called Mr. Miller 42times between November 7 and December 8, 2011 alone. The incoming calls
2

Portions of the business record, defendant’s Exhibit 1-A, are redacted.
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revealed a caller-ID of [Defendant’s number]. A portion of Mr. Miller’s phone
records is attached for your reference.
Defendant’s Exhibit 1-B. Attached to the letter, and also a part of the record, is what
purports to be a call log from plaintiff’s home telephone number. It too shows the last
incoming call from defendant as December 8, 2011.
Against this evidence, plaintiff’s attempt to refute that defendant did not call him
after December 8, 2011 fails. First, plaintiff relies on his call log and the demand letter
sent before December 8, 2011 in support of his claim that defendant made calls after
December 8, 2011. From this, plaintiff concludes that the “the reasonable inference is
that Defendant was calling Plaintiff approximately daily until Plaintiff’s counsel
terminated the calls on January 9, 2012.” Plaintiff’s Response, p. 6. This conclusion is
not sufficient to meet his burden under Rule 56. Plaintiff’s call log and the demand letter
confirm what defendant has admitted– that it last called plaintiff on December 8, 2011.
The issue is not whether defendant called plaintiff before December 8, 2011, but
whether defendant called plaintiff within one year before he filed the complaint on
December 11, 2012.
Plaintiff, however, submits a declaration (signed, not notarized) in which he
states that defendant “continued to call [Plaintiff] up to 4 times per day through January
8, 2012.” Response, Ex. 1. This statement does not carry the day for plaintiff. First,
plaintiff created a call log detailing the precise dates and times of the calls defendant
made to him which runs from November 7, 2011 through December 8, 2011. His
statement runs contrary to the call log. Other than plaintiff’s unsupported statement

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there is no evidence to support that defendant made any calls to him after December 8,
2011. Moreover, there are no call logs, phone records, tape recordings or pictures of
his phone with defendant’s name or number on it. Plaintiff has failed to produce specific
evidence to counter defendant’s evidence. AS such, he has not met his summary
judgment burden to show the existence of a genuine issue of material fact.
The Court faced a similar issue in Toma v. General Revenue Corp., No.
07-13018, 2008 WL 302378 (E.D. Mich. Feb. 1, 2008). In Toma, the Court held that
plaintiff’s FDCPA claim was time barred based on defendant’s internal call logs
concerning plaintiff’s account and finding that plaintiff’s affidavits, in which she stated
that defendant had called her home multiple times within the preceding year were
insufficient . In granting defendant’s motion for summary judgment, the Court held that
“neither affidavit is specific as to when the alleged phone calls took place. The affidavits
contain precisely the type of self-serving statement which are directly refuted by
[defendant’s] detailed records. This is insufficient to create a genuine issue of material
fact..” Id. at *3.
While plaintiff says that the affidavits in Toma were less specific than his affidavit,
the same result obtains here. Defendant’s evidence confirms that it made no calls to
plaintiff after December 8, 2011. Plaintiff’s bare bones affidavit with the naked assertion
that calls were made until January 9, 2012 is insufficient to meet plaintiff’s summary
judgment burden.
Plaintiff, however, contends that defendant’s evidence is nothing more than a
denial of plaintiff’s “well plead and timely allegations.” (Response at p. 7). This
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argument misses the mark. Defendant filed a motion for summary judgment, not a
motion to dismiss. Therefore, plaintiff had to do more than just rely on allegations to
defeat defendant’s motion.
While at the hearing on defendant’s motion, plaintiff’s counsel raised the issue of
discovery, the record does not reveal that plaintiff requested any specific discovery. To
the contrary, plaintiff’s response to defendant’s motion makes no mention of a need for
additional discovery in order to present essential facts to justify its opposition or
otherwise properly respond to the motion. See Fed. R. Civ. P. 56(d).
As a final argument, plaintiff cites the “continuing violation theory.” Such reliance
is misplaced. The statute of limitations even a continuing violation theory begins to run
when the last act in the continuing pattern of alleged violations occurred. There still
must be an actionable act within the statute of limitations. The record does not show
an actionable call within one year of December 11, 2012. Thus, the continuing violation
theory does not apply.
V. Conclusion
For the reasons stated above, defendant’s motion for summary judgment is
GRANTED. This case is DISMISSED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: May 24, 2013
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12-15441 Miller v. Asset Acceptance, LLC, et al
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, May 24, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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