Currier v. PDL Recovery Group, LLC et al

Filing 170

OPINION and ORDER Granting in Part and Denying in Part 142 MOTION for Partial Summary Judgment. (Status Conference set for 4/4/2017 at 02:00 PM before District Judge Sean F. Cox) Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Ryan Currier
Plaintiff,
Case No. 14-12179
Hon. Sean F. Cox

v.
PDL Recovery Group, LLC, et. al.,
Defendants.
__________________________________/

OPINION & ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT
This action is brought pursuant to the Telephone Consumer Protection Act (“TCPA”), the
Fair Debt Collection Practices Act (“FDCPA”), the Michigan Occupational Code (“MOC”), and
the Michigan Collection Practices Act (“MCPA”).
Currently before the Court is Plaintiff’s partial motion for summary judgment. Plaintiff’s
motion seeks summary judgment as to liability and statutory damages on his TCPA, FDCPA and
MOC claims. Plaintiff does not intend to forfeit claims omitted from the instant motion.
In his motion, Plaintiff asserts that Defendants PDL Recovery Group, V Cobb Associates
and Jamie Belstadt violated the TCPA. Plaintiff further asserts that Defendants PDL Recovery
Group, V Cobb Associates, Jamie Belstadt, and Mara Pfalzer violated certain provisions of the
FDCPA. And finally, Plaintiff asserts that Defendants PDL Recovery Group, V Cobb
Associates and Jamie Belstadt violated certain provisions of the MOC.
Defendants PDL Recovery Group and Jamie Belstadt have filed a response opposing
Plaintiff’s motion. Defendant Mara Pfalzer, appearing pro se, was ordered to file a response to

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the motion after the deadline to do so had passed. Pfalzer’s one-page response was filed on
November 28, 2016. Defendant V Cobb Associates has not appeared in this matter and has
therefore failed to file any response to the instant motion.1
The Court finds that oral argument would not significantly aid in the decisional process
and therefore orders that the instant motion will be decided upon the briefs. See E.D. Mich. LR
7.1(f). Plaintiff’s motion shall be GRANTED IN PART AND DENIED IN PART, as follows:
C

the Court shall GRANT summary judgment as to Count I on the issue of liability
and statutory damages against Defendant PDL Recovery and Defendant Belstadt
for willful violations of § 227(b)(1)(A)(iii) of the TCPA;

C

the Court shall GRANT summary judgment on the issue of liability and statutory
damages against Defendants PDL and Belstadt for violations of § 1692c(a)(1) and
§ 1692c(a)(3) of the FDCPA;

C

the Court shall GRANT summary judgment on the issue of liability and statutory
damages against Defendants PDL, Belstadt and Pfalzer for violations of §
339.918 of the MOC;

C

the Court shall DENY summary judgment against Defendants PDL, Belstadt and
Pfalzer as to § 1692g of the FDCPA because a material dispute of fact exists as to
whether such a claim is timely;

C

the Court shall DENY summary judgment against Defendants PDL and Belstadt
as to § 1692c(b) and § 1692d of the FDCPA and as to § 339.915(I) and §
339.915(n) of the MOC; and

C

the Court shall DENY summary judgment against Defendants PDL and Belstadt
as to § 339.915(q) of the MOC

1

Based upon Plaintiff’s response to this Court’s order requiring supplemental briefing,
the instant Opinion & Order does not relate to Defendant V, Cobb Associates, LLC. Plaintiff has
indicated in his supplemental brief that he intends to submit a request for default as to this
defendant in lieu of seeking summary judgment. (Doc. # 165, Pl.’s Suppl. Br. at 5).
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BACKGROUND
A.

Procedural Background
This action arises out of Plaintiff’s failure to pay a loan and Defendants’ efforts to collect

on the defaulted loan. The named Defendants in this case are: (1) PDL Recovery Group, LLC
(“PDL”); (2) Mara Pfalzer (“Pfalzer”); (3) Jamie Belstadt (“Belstadt”); (4) V, Cobb Associates,
LLC (“V Cobb”); (5) John Puglisi (“Puglisi”); and (6) Mike Hasson (“Hasson”).
Plaintiff filed this action on June 3, 2014. (Doc. #1). Plaintiff’s second amended
complaint, filed on June 29, 2015, is the operative complaint in this case. (Doc. #48, Pl.’s Am.
Compl.). Plaintiff alleges the following four counts:
Count I

Telephone Consumer Protection Act, violation of 47 U.S.C. §
227(b)(1)(A)(iii) – against all defendants;

Count II

Fair Debt Collection Practices Act, violations of 15 U.S.C. §§ 1692b(1),
1692b(2), 1692b(3), 1692c(a)(1), 1692c(a)(3), 1692c(b), 1692d(5),
1692d(6), 1692e, 1692f, 1692f(1), and 1692g(A) – against all defendants;

Count III

Michigan Occupational Code, as alternative to claims under Michigan
Collection Practices Act, violations of M.C.L. §§ 339.915(a), 339.915(e),
339.915(g), 339.915(I), 339.915(n), 339.915(q), and 339.918(1) – against
Defendants PDL and V, Cobb LLC;

Count IV2

Michigan Collection Practices Act, as alternative to claims under
Michigan Occupational Code, violations of M.C.L. §§ 445.252(e),
445.252(g), 445.252(I), 445.252(n), and 445.252(q).

(Pl.’s Am. Compl.). Plaintiff seeks actual damages, statutory damages, treble damages, statutory
costs and attorney fees.
On August 10, 2016, Plaintiff filed the instant partial motion for summary judgment.

2

Plaintiff’s amended complaint mistakenly labels this Count as “Count III” when it
should be labeled Count IV.
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(Doc. #142, Pl.’s Br.). In it, Plaintiff seeks: (1) summary judgment against Defendants PDL, V
Cobb and Belstadt as to Count I, for violating § 227(b)(1)(A)(iii) of the TCPA; (2) summary
judgment against Defendants PDL, V Cobb and Belstadt as to Count II, for violating §§ 1692g,
1692c(b), 1692c(a)(1), 1692c(a)(3) and 1692d of the FDCPA; (3) summary judgment against
Defendant Pfalzer as to Count II, for violating § 1692g of the FDCPA; and (3) summary
judgment against Defendants PDL, V Cobb and their managing agent, Belstadt, as to Count III,
for violating §§ 339.915(i), 339.915(n), 339.918 and 339.915(q) of the MOC.
Pursuant to this Court’s practice guidelines, Plaintiff’s motion and supporting brief
included a separate Statement of Material Facts Not In Dispute. (Doc. #144, Pl.’s Stmt.).
Defendants PDL and Belstadt have filed a response to Plaintiff’s motion, (Doc. #152, Def.s’
Resp.), and their supporting brief included a separate Counter-Statement of Disputed Facts.
(Doc. #153, Def.s’ Stmt.). Defendant Pfalzer, appearing pro se, was ordered to file a response to
the motion and has done so. (Doc. # 162, Pfalzer’s Resp.).
On December 15, 2016, the Court filed an Order Requiring Supplemental Briefing.
(Doc. # 164). The Court’s Order noted that neither party had adequately stated and supported its
positions with sufficient authority. Plaintiff filed his supplemental brief on December 19, 2016.
(Doc. # 165, Pl.’s Suppl. Br.). Defendants PDL and Belstadt also filed their supplemental brief
on December 19, 2016. (Doc. # 166, Def.s’ Suppl. Br.).
The following facts, viewed in a light most favorable to Defendants, are gleaned from the
parties’ statements and the uncontradicted documentary evidence submitted by the parties.
B.

Factual Background
Plaintiff resides in South Lyon, Michigan and is employed at American Metal Processing

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Co. (Ex. 2 to Pl.’s Br., Pl.’s Dec. at ¶¶ 3-4). Plaintiff is the owner of a cellular phone with the
phone number ending in the last four digits of 4826.
Defendant PDL is a debt collection company solely owned by Defendant V, Cobb, LLC.
(Pl.’s Stmt. at ¶¶ 6-7; Doc. #153, Def.s’ Stmt. at ¶¶ 6-7). Defendant V, Cobb is solely owned by
Defendant Belstadt. (Pl.’s Stmt. at ¶ 7; Def.s’ Stmt. at ¶ 7). V, Cobb conducts no other business
apart from ownership of PDL. (Id. at 18-19; Pl.’s Stmt. at ¶¶ 8, 10; Def.s’ Stmt. at ¶¶ 8, 10).
Defendant Belstadt is Defendant PDL’s highest ranking official. (Pl.’s Stmt. at ¶ 19;
Def.s’ Stmt. at ¶ 19). Defendant Belstadt has ultimate authority over the policies and practices
of PDL. (Pl.’s Stmt. at ¶ 20; Def.s’ Stmt. at ¶ 20).
Defendant Pfalzer worked for Defendant PDL from May 2008 through November 2014.
(Ex. 6 to Pl.’s Br., Pfalzer Dep. at 16). Throughout her employment, Defendant Pfalzer’s
responsibilities included the following: (1) payroll; (2) new hire applications; (3) bank deposits;
(4) payment processing; and (5) sending debtor letters. (Id. at 17-18). Defendant Pfalzer was
initially employed as a debt collector and then transitioned into the position of administrative
director. (Id. at 40). As administrative director, she supervised the payment processing of all
money that came into PDL, sent debtor letters and reported directly to Defendant Belstadt. (Id.).
Defendant Puglisi was a debt collector working for Defendant PDL at all times relevant
to this action. (Pl.’s Stmt. at ¶ 20; Def.s’ Stmt. at ¶ 20). Defendant Puglisi collected debts under
the alias “Joseph Kennedy,” and will be referred to as such for purposes of this Opinion &
Order. (Pl.’s Stmt. at ¶ 25; Def.s’ Stmt. at ¶ 25).
Defendant Hasson was a debt collector working for PDL at all times relevant to this
action. (Pl.’s Stmt. at ¶ 27; Def.s’ Stmt. at ¶ 27). Defendant Hasson remains employed as a debt

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collector by PDL. (Pl.’s Stmt. at ¶ 28; Def.s’ Stmt. at ¶ 28).
In 2012, Plaintiff obtained a loan from “Check ‘N Go.” Plaintiff borrowed money from
Check ‘N Go for “personal purposes.”3 (Pl.’s Dec. at ¶ 6). Specifically, Plaintiff testified that he
borrowed money in order to pay bills and to pay for reparations to his personal car. (Ex. 11 to
Def.s’ Resp., Pl.’s Dep. at 21-22). After Plaintiff defaulted on payments, the Check ‘N Go
account was referred to Defendant PDL for collection. There is no dispute that PDL
representatives contacted Plaintiff regarding the Check ‘N Go debt. (Pl.’s Stmt. at ¶ 5; Def.s’
Stmt. at ¶ 5).
Plaintiff asserts that PDL representatives have contacted him approximately 32 times in
an effort to collect the Check ‘N Go debt. (Pl.’s Dec. at ¶ 14). Here, PDL pursued its collection
efforts in two ways. PDL employed an automated telephone dialing system to place prerecorded
calls to Plaintiff’s cellular phone. (Pl.’s Stmt. at ¶ 37; Def.s’ Stmt. at ¶ 37). The service in
which PDL subscribes to send these prerecorded messages is provided by Global Connect. (Pl.’s
Stmt. at ¶ 52; Def.s’ Stmt. at ¶ 52). Global Connect obtained the names and phone numbers of
debtors when PDL uploaded said information on Global Connect’s website. (Ex. 3 to Pl.’s
Reply, Belstadt Dep. at 15). If the system detected that a call had been answered, Global
Connect would play a message that PDL designated to be played. (Ex. 8 To Pl.’s Br., Global
Connect Dep. at 21). If the system detected that it had reached a machine, PDL directed a
different message to be played. (Id.). PDL’s debt collectors also attempted to contact Plaintiff
directly on his cellular phone or on his work land line. (Pl.’s Stmt. at ¶ 38; Def.s’ Stmt. at ¶ 38;

3

Defendants deny that Plaintiff borrowed money for personal reasons. In so doing,
Defendants attack the sufficiency of Plaintiff’s “conclusory” and “self-serving” affidavit.
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Pl.’s Dec. at ¶ 9).
PDL agents are to call all numbers that are provided on a debtor’s account, including the
debtor’s place of employment. (Pl.’s Stmt. at ¶ 56; Def.s’ Stmt. at ¶ 56; Ex. 5 to Pl’s Br., Hasson
Dep. at 29-30). Defendant Hasson testified that, when speaking to a debtor’s employer, he
would typically disclose the fact that he is a debt collector calling on behalf of PDL. (Hasson
Dep. at 30-31).
1.

PDL’s Collection Efforts As They Relate To The Instant Action
a.

Initial Contact by Defendant to Plaintiff

The parties dispute the date on which Plaintiff was first contacted by PDL. Defendants
point to PDL’s collection notes, which indicate that Plaintiff was first contacted on March 4,
2013. Plaintiff claims he was first contacted on September 19, 2013 by PDL representative “Joe
Kennedy.” (Pl.’s Dep. at 26; Ex. 12 to Pl.’s Br., Pl.’s Interrogatory Answers at ¶ 1a). This
phone call was made to Plaintiff’s place of employment. (Pl.’s Dep. at 26). Plaintiff advised
that he was not permitted to take phone calls at work and asked to be contacted on his cellular
phone at 5 p.m. (Id.; Pl.’s Interrogatory Answers at ¶ 1a).
Kennedy subsequently called Plaintiff’s cellular phone at 5 p.m. (Id.). During this
conversation, Kennedy introduced himself and stated that he was calling from PDL regarding the
Check ‘N Go debt. (Id.). Plaintiff agreed that he owed the Check ‘N Go debt. (Id. at 27).
Plaintiff also agreed to repay the debt and authorized five $50.00 electronic withdrawals from his
debit card account occurring on the following dates: October 11, 2013; October 25, 2013;

7

November 8, 2013; November 22, 2013 and December 20, 2013.4 (Pl.’s Stmt. at ¶ 47; Def.s’
Stmt. at ¶ 47).
Plaintiff claims that he never received written notice from PDL after his initial
communication with PDL agent Kennedy. (Pl.’s Dec. at ¶ 15). Defendants dispute this.
Defendant Belstadt testified that PDL’s system generates an initial notice/letter whenever a
debtor account is first loaded into PDL’s database. (Ex. 5 to Def.s’ Resp., Belstadt Dep. at 9596). Belstadt further testified that a letter would have been sent to Plaintiff on October 26, 2012
when Plaintiff’s account was first placed with PDL. (Id. at 96). Belstadt acknowledged,
however, that PDL’s collection notes fail to indicate whether an initial letter was actually sent to
Plaintiff.5 (Id.).
b.

Phone Calls Made To Plaintiff

The following is an overview of the phone calls taking place after Plaintiff agreed to
repay the Check ‘N Go debt. On December 4, 2013, Plaintiff called PDL and communicated for
a second time that he was not permitted to receive phone calls at work. (Pl.’s Interrogatory
Answers at ¶ 1b).
On January 30, 2014, Joe Kennedy attempted to contact Plaintiff by telephone at work.
(Id. at ¶ 1c). Kennedy spoke to Jason Fettig, Plaintiff’s supervisor, and threatened to report

4

Plaintiff did not consent to any additional payments. (Pl.’s Stmt. at ¶ 48; Pl.’s Dec. at
¶¶ 11-12). Despite this, PDL initiated two $50.00 withdrawals from Plaintiff’s debit card
account on January 6, 2014 and January 21, 2014. (Pl.’s Stmt. at ¶ 48; Pl.’s Dec. at ¶¶ 11-12).
Plaintiff closed his debit card account as a result of the unauthorized withdrawals. (Pl.’s Stmt. at
¶ 49; Pl.’s Dec. at ¶ 13).
5

Defendants are unable to provide a copy of the letter that would have been sent to
Plaintiff, but they provide a copy of a generic initial notice letter and a letter that was sent to
Plaintiff on May 21, 2014. (Ex. 2 to Def.s’ Resp.).
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Plaintiff’s place of employment to the Better Business Bureau (“BBB”). (Id. at ¶1c; Pl.’s Dep. at
31-32).
On February 6, 2014, Plaintiff received a return call from a PDL agent. (Id. at ¶ 1d).
During this conversation, the agent stated that PDL would remove Plaintiff’s work land line from
their calling list. (Id.). On February 10, 2014, PDL contacted Plaintiff at work. (Id. at ¶ 1e).
During this conversation, Plaintiff requested no further contact from PDL all together. (Id.).
PDL’s account notes make no mention of Plaintiff’s requests that PDL cease all telephonic
communications with Plaintiff.
PDL delivered automated, prerecorded messages to Plaintiff’s cellular phone 11 times
after Plaintiff requested no further contact: March 13, 2014; March 18, 2014; April 22, 2014;
May 5, 2014; May 29, 2014; June 4, 2014; June 10, 2014; June 17, 2014; June 24, 2014; July 1,
2014; and July 8, 2014.6 (Pl.’s Dec. at ¶ 9a; Ex. 8 to Pl.’s Br. at 20-22; Ex. 11 to Pl.’s Br.).
c.

Recorded Phone Conversations Between Plaintiff & PDL Agents

Plaintiff personally recorded four phone calls with PDL agents. (Pl.’s Dec. at ¶ 17).
Plaintiff has provided transcriptions of the phone calls (Pl.’s Stmt. at ¶ 18a-d) and has provided
the Court with the audio recordings. The parties do not appear to dispute the content of the
recorded calls.
The first call recorded by Plaintiff is a prerecorded message left for Plaintiff on his
cellular phone. The caller identified herself as “Ms. Watson.” (Id. at ¶ 18a). The caller advised
that the message was a required notice in accordance with State and Federal regulations. (Id.).

6

Defendants attack the sufficiency and/or admissibility of the exhibits Plaintiff offers in
support of this fact. The Court finds this argument unpersuasive for reasons addressed later in
the this Opinion & Order.
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The caller provided a call back number to her department and stated that the call was made in
reference to claim number 178381. (Id.). Defendant Belstadt testified that he did not know a
“Ms. Watson,” and that he had never heard that message before. (Ex. 4 to Pl.’s Br., Belstadt
Dep. at 103-04). However, Belstadt admitted that the number belonged to PDL. (Id. at 104).
In a second recorded call, a message from Defendant Hasson was left for Plaintiff on his
cellular phone. Defendant Hasson stated that he was looking to get in touch with Plaintiff
regarding the “Check ‘N Go declined payment from about a week ago.” (Pl.’s Stmt. at ¶ 39;
Def.s’ Stmt. at ¶ 39). Hasson further stated that he had just spoken to Plaintiff’s supervisor,
Jason Fettig, and “almost got into words with him trying to leave [Plaintiff] a message over
there.” (Id.). Hasson advised that he was “not trying to jeopardize [Plaintiff’s] job at all...” and
concluded that he needed Plaintiff to contact him at some point. (Id.). At his deposition,
Defendant Hasson confirmed that it was his voice on the phone call and that he did in fact leave
that message for Plaintiff. (Ex. 5 to Def.s’ Resp., Hasson Dep. at 64-65).
In a third recorded call, Plaintiff spoke to PDL agent Joe Kennedy. (Pl.’s Dec. at 18d).
Plaintiff stated that he wanted all phone calls from PDL to stop. Kennedy responded that this
would not happen because Plaintiff’s debt is legally retained in his office. During this
conversation, Plaintiff is placed on hold while Kennedy initiates a phone call with Plaintiff’s
employer. Plaintiff hung up and called again. Plaintiff asked Kennedy why he called his place
of employment despite Plaintiff asking that he not call there. Kennedy responded that Plaintiff
supplied the number on the original loan application.
In a fourth recorded call, Plaintiff spoke to Defendant Hasson. (Ex. 5 to Pl.’s Br., Hasson
Dep. at 50). Plaintiff stated that he had previously asked PDL agent “Joe” to stop calling him.

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Plaintiff summarized the problems that he had experienced with PDL representative Joe, which
included: (1) Joe repeatedly calling Plaintiff’s place of employment without Plaintiff’s consent;
(2) Joe speaking to Plaintiff’s employer, Jason Fettig, and threatening to report him to the Better
Business Bureau; and (3) PDL making unauthorized withdrawals from Plaintiff’s bank account.
(Id. at 47-49). Plaintiff advised Defendant Hasson that Plaintiff no longer wanted PDL or its
representatives to contact him. Plaintiff made this request at least three times. Plaintiff
concluded that PDL could contact him by mail, if need be. (Id. at 44-46). Defendant Hasson
confirmed Plaintiff’s address and advised that a settlement letter would be sent to Plaintiff. (Id.).
At his deposition, Defendant Hasson confirmed that it was his voice on the phone call.
2.

PDL Training/Policies Regarding FDCPA & TCPA

PDL does not maintain an employee manual to help debt collectors comply with the
FDCPA or the TCPA. (Ex. 3 to Pl.’s Br., Belstadt Dep. at 95). Nor does PDL use any treatises
to assist its debt collectors in complying with the FDCPA and TCPA. (Pl.’s Stmt. at ¶ 68; Def.s’
Stmt. at ¶ 68). Instead, all PDL employees are given an FDCPA exam before they are permitted
to be on the floor. (Belstadt Dep. at 95). Passing the FDCPA exam is a condition of
employment. (Id.). If they pass the FDCPA exam, Defendant Belstadt assumes that they are
trained. (Id. at 95-96).
To ensure compliance with the law, Belstadt testified that PDL will “randomly monitor
and audit calls, both incoming and outgoing ... to ensure that collectors are not ... breaking the
law.” (Ex. 4 to Pl.’s Br. at 34). Floor managers or Belstadt himself would answer any questions
debt collectors may have had regarding FDCPA compliance. (Id. at 35). Although PDL does
not offer training on the FDCPA, Belstadt testified that he would inform employees of any

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updates in the law on a case-by-case basis. (Id. at 38). If a debt collector is alleged to have
engaged in misconduct, Belstadt testified that floor managers have been verbally instructed to
make records of such allegations in an employee’s file. (Ex. 3 to Pl.’s Br. at 98).
STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1984), quoting FED. R. CIV. P. 56(C).
The party that moves for summary judgment has the burden of showing that there are no
genuine issues of material fact in the case. LaPointe v. United Autoworkers Local 600, 8 F.3d
376, 378 (6th Cir. 1993). The moving party may meet its burden by showing that the nonmoving
party lacks evidence to support an essential element of its case. Barnhart v. Pickrel, Schaeffer &
Ebeling Co., 12 F.3d 1382, 1389 (6th Cir. 1993). In response, the nonmoving party must come
forth with more than a “mere scintilla of evidence” in support of his or her position in order to
survive summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). “In
fact, ‘[t]he failure to present any evidence to counter a well-supported motion for summary
judgment alone is grounds for granting the motion.’” Alexander v. CareSource, 576 F.3d 551,
558 (6th Cir. 2009) (quoting Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)).
The court must view the evidence, all facts, and any inferences that may permissibly be
drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Civil Rule 56(c)(1) provides:

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(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A)

citing to particular parts of material 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).
ANALYSIS
A.

Plaintiff Is Entitled To Summary Judgment As To His TCPA Claim Against
Defendant PDL And Defendant Belstadt
In Count I, Plaintiff alleges that Defendants PDL, V, Cobb, and Belstadt violated the

portion of the TCPA codified at 47 U.S.C. § 227(b)(1)(A)(iii) by making numerous phone calls
to Plaintiff’s cellular phone using an automatic telephone dialing system or pre-recorded voice
without Plaintiff’s consent. (Pl.’s Am. Compl. at ¶ 109). Plaintiff argues that PDL undisputably
made prerecorded calls to Plaintiff’s cellular phone after Plaintiff repeatedly and explicitly asked
PDL to refrain from calling him. Plaintiff contends that the phone calls were made willfully and
knowingly.
Defendants argue that Plaintiff is not entitled to summary judgment as to the TCPA claim
because: (1) Plaintiff has failed to produce admissible evidence of such calls; (2) Plaintiff did not
effectively revoke consent under the TCPA; (3) in the event that the Court finds that such
violations did occur, the violations were not willful; (4) Defendant Belstadt cannot be held
jointly liable; and (5) because Plaintiff has settled with a previous co-defendant for the same

13

TCPA claims, Plaintiff is not entitled to double recovery. (Def.’s Resp. at 17-23).
For reasons more fully developed below, the Court shall grant summary judgment on the
issues of liability and statutory damages against Defendants PDL and Belstadt. However,
because Plaintiff has not calculated the amount of damages he believes he is entitled to and
because Defendants’ “double recovery” argument has merit and warrants further consideration,
see Shamblin v. Obama for America, 2015 WL 6123731 (MD. Fl. Oct. 16, 2015), the Court shall
not and cannot specify the amount of damages to be awarded against Defendants at this time.
1.

The TCPA

The TCPA was “enacted in an effort to address a growing number of telephone
marketing calls and certain telemarketing practices that Congress found to be an invasion of
consumer privacy.” Pugliese v. Professional Recovery Service, Inc., 2010 WL 2632562, at *6
(E.D. Mich. June 29, 2010). In pertinent part, the TCPA regulates the use of automated
telephone equipment, which is defined as “equipment which has the capacity to (A) store or
produce telephone numbers to be called, using a random or sequential number generator; and (B)
to dial such numbers.” 47 U.S.C. § 227(a)(1). Relevant to Plaintiff’s TCPA claim here is §
227(b)(1), which provides, in pertinent part, that:
(1) Prohibitions. It shall be unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United States–
(A) to make any call (other than a call made for emergency purposes or made
with the prior express consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice–
****
(iii) to any telephone number assigned to a paging service, cellular telephone
service, specialized mobile radio service, or other radio common carrier service,
or any service for which the called party is charged for the call;
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47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added).
In order to establish a prima facie TCPA case for calls made to a cellular phone, Plaintiff
must show that: “(1) a call was placed to a cell or wireless phone; (2) by the use of any automatic
dialing system and/or leaving an artificial or prerecorded message, and (3) without prior consent
of the recipient.” Pugliese, 2010 WL 2632562 at *7. Here, Defendants argue that Plaintiff has
not satisfied the first and third elements of his prima facie case.
a.

Evidence of Calls Made To Plaintiff’s Cellular Phone

Plaintiff’s TCPA claim stems from 11 automated and prerecorded calls made to
Plaintiff’s cellular phone after he had asked PDL representatives to stop calling him. To support
this allegation, Plaintiff offers his interrogatory answers, which state that Plaintiff asked all
telephonic communication to cease on February 10, 2014 and a report that details 12 automated
calls made by Global Connect on behalf of PDL between the dates of December 30, 2013
through July 8, 2014. (Ex. 11 to Pl.’s Br., Call Detail Report).
Defendants argue that Plaintiff has not shown, by way of any admissible evidence, that
these calls were made to Plaintiff’s cellular phone. Specifically, Defendants argue that the call
detail report purporting to show calls placed to Plaintiff does not contain the number that was
dialed and that the call detail report was not produced with an authenticating affidavit.
Defendants’ argument is without merit.
The call detail report offered by Plaintiff to prove that automated calls were placed to his
cellular phone after February 2014 was authenticated and discussed during the deposition of
Global Connect representative, Darrin R. Bird. (Ex. 8 to Pl.’s Br., Bird Dep. at 21). Bird
testified that PDL was Global Connect’s client and that Global Connect delivered automated and

15

prerecorded messages to phone numbers provided by PDL on PDL’s behalf. (Id. at 10, 61).
During his deposition, Bird stated that he gathered a record of all automated calls made to
Plaintiff’s cellular phone (the 4826 number) and he produced the report in question. (Id. at 2122). He further testified that each of the calls itemized on the call detail report reflect that an
automated message was delivered to a live person or a machine. (Id. at 21, 61). This deposition
testimony sufficiently authenticates the call detail record proffered by Plaintiff.
In their sur-reply, Defendants also attack the authenticity of all deposition excerpts
attached to Plaintiff’s motion because Plaintiff failed to attach a court reporter’s certificate to the
transcripts as is required by law. Defendants correctly recite the law, i.e. to authenticate a
deposition excerpt, a party should include the cover sheet (which Plaintiff did) and the court
reporter’s certificate (which Plaintiff failed to do). Plaintiff’s have remedied this by attaching
the required certificates as exhibits to their supplemental brief. (See Ex. 2-9 to Pl.’s Suppl. Br.)
b.

Plaintiff Effectively Revoked Prior Express Consent

Plaintiff contends that there can be no dispute that he orally revoked consent in February
2014 while on the phone with a PDL agent. Defendants counter that Plaintiff did not effectively
revoke consent under the TCPA. (Def.s’ Resp. at 19). Specifically, Defendants argue that
“[s]everal courts have held that where a Plaintiff combines claims under the FDCPA and TCPA,
any attempted revocation of consent under the TCPA must be made in writing.” (Def.s’ Resp. at
19). To support this proposition, Defendants cite three unpublished Western District of New
York decisions: Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756 (W.D.N.Y. 2010);
Moore v. Firstsource Advantage, LLC, 2011 WL 4345703 (W.D.N.Y. 2011); and Moltz v.
Firstsource Advantage, LLC, 2011 WL 3360010 (W.D.N.Y. 2011). Defendants fail to

16

substantiate their reliance on these cases with any further discussion.
The Court finds Defendants’ position unpersuasive. Based upon the Court’s review of
the relevant case law and the FCC’s most recent declaratory ruling, the Court concludes that
Plaintiff has effectively revoked his prior express consent under the TCPA.
It is first worth noting that the TCPA is silent as to whether and how a consumer may
revoke prior express consent. The Sixth Circuit has similarly not addressed the issue of consent
revocation under the TCPA. District courts addressing this issue have reached contradictory
conclusions, including: (1) that consent may never be revoked under the TCPA, see e.g.
Saunders v. NCO Financial Systems, Inc. 910 F. Supp. 2d 464, 469-70 (E.D.N.Y. 2012); (2) that
consent under the TCPA may only be revoked in writing, see e.g., Starkey v. Firstsource
Advantage, LLC, 2010 WL 2541756 (W.D.N.Y. 2010); and (3) that consent may be revoked
either orally or in writing. See e.g. Guiterrez v. Barclays Group, 2011 WL 579238, *3-4 (S.D.
Cal. 2011); Adamcik v. Credit Control Services, 832 F. Supp. 2d 744, 749-53 (W.D. Tex. 2011).
Notably, only two federal appellate courts have addressed the issue of consent revocation
under the TCPA. As a more general matter, the Third Circuit held that “the TCPA’s silence as to
revocation should not be seen as limiting a consumer’s right to revoke prior express consent.
Instead, we view the silence in the statute as evidence that the right to revoke exists.” Gager v.
Dell Fin. Servs., LLC, 727 F.3d 265, 268-272 (3d Cir. 2013).
Next, and most relevant to the issue presently before the Court, is the Eleventh Circuit’s
decision in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255-56 (11th Cir. 2014). There,
the Eleventh Circuit specifically rejected the line of reasoning Defendants urge the Court to
adopt here. The Eleventh Circuit held that “[b]ecause the TCPA lacks equivalent language

17

[found in the FDCPA], it had no reason to assume that Congress intended to impose a similar inwriting requirement on the revocation of consent under the TCPA.” Id. In so finding, the
Eleventh Circuit concluded that allowing consent to be revoked orally is consistent with the
government interest articulated in the TCPA’s legislative history. Id.
The Eleventh Circuit’s reasoning in Osorio is also consistent with the FCC’s most recent
declaratory ruling (“2015 FCC Ruling”). In the 2015 FCC Ruling, the FCC clarified that, under
the TCPA, “[c]onsumers have a right to revoke consent, using any reasonable method including
orally or in writing. Consumers generally may revoke, for example, by way of a consumerinitiated call, directly in response to a call initiated or made by a caller.” In the Matter of Rules
and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 F.C.C. Rcd.
7961, 7996 ¶ 64, 2015 WL 4387780 (2015) (hereinafter “2015 FCC Ruling”).
The Court finds the 2015 FCC Ruling and the Eleventh Circuit’s decision in Osorio to be
persuasive authority on the issue of consent revocation under the TCPA. Accordingly, Plaintiff
has established that he clearly revoked his prior express consent in February 2014. Defendants
have failed to point to any fact in the record establishing otherwise.
c.

Plaintiff Has Established That Defendants’ Violations Were Willful

Because the record establishes that Plaintiff effectively revoked prior consent, any calls
made after revocation constitute violations of the TCPA. Here, Plaintiff alleges that Defendants’
TCPA violations were willful. Defendants counter that any violation of the TCPA was not
willful. Defendants’ argument here is admittedly “[b]ased on the premise that consent must be
revoked in writing...” (Def.s’ Resp. at 21). Defendants advance no other argument to support
their position.

18

Because the Court does not believe that revocation under the TCPA must be made in
writing, it could reject Defendants’ argument on this basis alone. However, a brief discussion of
the relevant law also supports rejection of Defendants’ position. As such, the Court concludes
that Plaintiff has established that Defendants willfully violated the TCPA by continuing to place
automated calls to Plaintiff’s cellular phone after Plaintiff had asked that such communications
cease.
The TCPA provides for a right of action and permits a party to recover actual monetary
loss for a violation of § 227(b)(1)(A), “or to receive $500 in damages for each such violation,
whichever is greater.” 47 U.S.C. § 227(b)(3)(B); Mims v. Arrow Financial Services, LLC, 132
S.Ct. 740 (2012). “The TCPA is essentially a strict liability statute which imposes liability for
erroneous unsolicited [calls].” Alea London Ltd. v. American Home Services, Inc., 638 F.3d 768,
776 (11th Cir. 2011) (quoting Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1311 (11th Cir. 2008)).
“The TCPA does not require any intent for liability except when awarding treble
damages.” Alea London Ltd., 638 F.3d at 776. Section 227(b)(3) provides, “[i]f the court finds
that the defendant willfully or knowingly violated this subsection or the regulations prescribed
under this subsection, the court may, in its discretion, increase the amount of the award to an
amount equal to not more than 3 times the amount available under subparagraph (B) of this
paragraph.” 47 U.S.C. § 227(b)(3). “Importantly though, the intent for treble damages does not
require any malicious or wanton conduct, but rather is satisfied by merely ‘knowing’ conduct.”
Alea London Ltd., 638 F.3d at 776.
“In order for Plaintiff to prove that Defendants knew that they acted in a manner that
violated the statute ... Plaintiff must ... show that the Defendants knew that Plaintiff did not

19

consent to the phone calls.” Harris v. World Financial Network Nat. Bank, 867 F. Supp. 2d 888,
895 (E.D. Mich. 2012); see also Duchene v. Onstar, LLC, 2016 WL 3997031, at *7 (E.D. Mich.
July 26, 2016) (Plaintiff need only plead that Defendant was made aware of/notified Defendant
that Plaintiff did not consent to calls from Defendant).
In his interrogatory answers, Plaintiff stated that he requested no further contact from
PDL or its representatives on February 10, 2014 and again on February 12, 2014. (Pl.’s
Interrogatory Answers at ¶¶ 1e, 1f). Plaintiff has also provided the audio recording of two phone
calls, wherein Plaintiff advised PDL agents to stop contacting him telephonically. Thus,
Defendants were put on notice, as of February 2014, that Plaintiff no longer wished to receive
phone calls from PDL. Despite this, PDL agents failed to make any notation in Plaintiff’s
account notes to reflect his requests and acted in reckless disregard of Plaintiff’s rights under the
TCPA. Defendants have not pointed to any fact in the record that disputes Plaintiff’s evidence in
any way. The Court therefore concludes that there is no genuine issue of material fact as to
whether Defendants continued to place prerecorded and automated calls to Plaintiff’s cellular
phone after Plaintiff requested such communications to cease.
d.

Defendant Belstadt May Be Held Individually Liable For PDL’s
TCPA Violations

Plaintiff seeks to hold Defendant Belstadt individually liable for the TCPA violations
committed by Defendant PDL. Defendants argue that “Plaintiff has not created a genuine
dispute as to whether [Defendant] Belstadt may be held vicariously liable” for such violations.
(Def.s’ Resp. at 21). Specifically, Defendants contend that Plaintiff has not established that a
“‘clear and unequivocal’ agency relationship exists between Belstadt and Global Connect.” (Id.
at 22). Defendants further contend that as a corporate officer, it must be established that
20

Defendant Belstadt personally engaged in conduct that clearly violated the TCPA. (Id.).
Defendants’ arguments are misplaced.
Numerous district courts have held that corporate actors may be individually liable for a
TCPA violation where they “had direct, personal participation in or personally authorized the
conduct found to have violated the statute.” Jackson Five Star Catering, Inc. v. Beason, 2013
WL 5966340, at *4 (E.D. Mich. Nov. 8, 2013) (quoting Van Sweden Jewelers, Inc. v. 101 VT,
Inc., 2012 WL 4074620 (W.D. Mich. June 21, 2012) (internal citations and quotations omitted);
see also Sandusky Wellness Center, LLC v. Wagner Wellness, Inc., 2014 1333472 at *3 (N.D.
Ohio Mar. 28, 2014)) (listing district courts around the country who have held that an individual
must have direct, personal participation or authorization to be liable).
“Courts have generally imposed liability upon individual defendants based upon their
status as employees of an entity that committed TCPA violations when those defendants had
significant authority over the corporation that committed the TCPA violations.” Roylance v.
ALG Real Estate Services, Inc., 2015 WL 1255544, at * 7 (N.D. Cal. March 16, 2015). For
example, “individual defendants were held personally liable when they were ‘the only corporate
officers’ of the corporation and ‘set company polices and oversee day-to-day operations’ and
thus ‘were clearly involved in the business practices that led’ to the unlawful conduct.” Id.
(quoting Covington & Burling v. Int’l Marketing & Research, Inc., 2003 WL 21384825, at *6
(D.C. Super.Ct. Apr. 17, 2003)).
Here, it is undisputed that Defendant Belstadt is PDL’s highest ranking official and is
responsible for establishing PDL’s policies and practices. (Ex. 4 to Pl.’s Resp. at 8-9). It is also
undisputed that Defendant Belstadt served as one of Global Connect’s primary points of contact.

21

(Ex. 8 to Pl.’s Br., Global Connect Dep. at 62). Defendant Belstadt was trained on Global
Connect’s autodialer system. (Id. at 58). At his deposition, Defendant Belstadt explained that
Global Connect obtained the names and phone numbers of debtors when PDL uploaded said
information on Global Connect’s website. (Ex. 3 to Pl.’s Reply, Belstadt Dep. at 15).
As such, it cannot be disputed that Defendant Belstadt was aware of, and essentially
authorized, Global Connect’s use of an autodialer system to deliver prerecorded messages to
Plaintiff’s cellular phone. Thus, the Court finds Defendant Belstadt individually liable for the
TCPA violations at issue here.
e.

Defendant’s “Double Recovery” Argument Has Merit

To the extent that the Court finds Defendants liable for the TCPA violations, Defendants
argue that “[t]here is no basis for permitting double recovery under the TCPA, which expressly
recognizes only one recovery.” (Def.s’ Resp. at 22). Defendants’ argument is premised upon
the fact that Avante Teleadvance, Inc. (d/b/a “Check ‘N Go Online”) was originally named as a
co-defendant in this action before Plaintiff and Check ‘N Go agreed to settle. (Id. at 23).
Plaintiff’s complaint originally alleged that Check ‘N Go, along with Defendants, violated the
TCPA for calls placed to Plaintiff’s cellular phone. (Id.). Defendants conclude that, if
Defendants PDL or Belstadt are found liable under the TCPA, any amount awarded must be
reduced by the amount Plaintiff recovered from Check ‘N Go. (Id.). Defendants fail to cite any
applicable law to support their position. Plaintiff’s response in opposition confuses the issue by
discussing why Defendants are not entitled to contribution from co-defendants and by discussing
the collateral source rule.
Although neither party adequately addresses this issue, the Court finds that Defendants’

22

position has merit. As an initial matter, the TCPA limits statutory damages to one award per
call. Charvat v. GVN Michigan, Inc., 561 F.3d 623, 630 (6th Cir. 2009). As to the issue of
“double recovery” by way of prior settlement, the Court was only able to locate one case to help
guide in its analysis.
In Shamblin v. Obama for America, a plaintiff brought TCPA claims against three
defendants. One of the three defendants entered into a settlement with the plaintiff and agreed
to offer full monetary relief. Shamblin, 2015 WL 6123731, at *1. Thereafter, the remaining
defendants sought to settle with the plaintiff by agreeing to enter an injunction enjoining any
further violations of the TCPA. Id. The remaining defendants also sought to dismiss the case
because the plaintiff had been offered full relief under the TCPA. Relevant to the instant issue,
the Shamblin court noted as follows:
To [Plaintiff’s] credit, [she] appears to concede that she has been fully
compensated, monetarily, and is not entitled to any damages from the remaining
Defendants, as New Partners paid the full amount of statutory damages and
taxable costs available for the alleged violations of the TCPA.
Id. In so finding, the Shamblin court further noted that courts should preclude double recovery
by an individual. Id. at n.1 (quoting Gen. Tel. Co. v. EEOC, 446 U.S. 318, 333 (1980)).
The Court finds Shamblin instructive as to the instant issue. Like the plaintiff in
Shamblin, Plaintiff here has settled with Check N’ Go for the same alleged calls it seeks to hold
Defendants liable for now. To the extent that Plaintiff has been compensated for such calls, he
should not be permitted to recover again under the TCPA.
B.

Plaintiff is Entitled to Summary Judgment As To Some, But Not All, Of His
FDCPA Claims

The FDCPA was enacted in order “to eliminate abusive debt collection practices by debt

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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). The FDCPA is considered a
strict liability statute, Kistner v. Law Offices of Michael P. Margelefsky, 518 F.3d 433, 438 (6th
Cir. 2008), and a consumer need only prove that the debt collector violated “any provision” of
the Act to be entitled to damages. 15 U.S.C. § 1692k. Courts are required to analyze alleged
FDCPA violations “through the lens of the least sophisticated consumer.” Gionis v. Javitch,
Block & Rathbone LLP, 238 Fed. App’x 24, 28 (6th Cir. 2007). The least sophisticated
consumer “can be presumed to possess a rudimentary amount of information about the world and
a willingness to read a collection notice with some care.” Clomon v. Jackson, 988 F.2d 1314,
1319 (2d Cir. 1993).
In order for Plaintiff’s claims to fall within the purview of the FDCPA, the following
must be established: (1) that Plaintiff is a “consumer,” as defined under 15 U.S.C. § 1692a(3);
(2) that Plaintiff incurred a “debt,” as defined under 15 U.S.C. § 1692a(5); (3) that Defendants
are “debt collectors,” as defined under 15 U.S.C. § 1692a(6); and (4) that Defendants violated
one or more of the FDCPA’s prohibitions. Estep v. Manly Deas Kochalski, LLC, 942 F. Supp.
2d 758, 766 (S.D. Ohio Apr. 29, 2013) (internal citations omitted). It is undisputed for purposes
of summary judgment that Plaintiff is a “consumer” as defined by the FDCPA and that
Defendant PDL is a “debt collector” as defined by the FDCPA.
The following is disputed by the parties: (1) whether Plaintiff incurred a consumer debt;
(2) whether Defendant Belstadt, in his individual capacity, is a “debt collector;” (3) whether
Defendant Pfalzer is a “debt collector;” and (4) whether Defendants acted in violation of one or

24

more of the FDCPA’s prohibitions. The Court shall address each below.
1.

Plaintiff Incurred A Consumer Debt, As Is Required Under The FDCPA

“A threshold requirement for application of the FDCPA is that the prohibited practices
are used in an attempt to collect a ‘debt,’” as that term is defined by § 1692a(5). Zimmerman v.
HBO Affiliate Group, 834 F.2d 1163, 1167 (3d Cir. 1987). The FDCPA does not apply to debts
incurred for business purposes. Horton v. Trans. Union, LLC, 2015 WL 1055776, at *5 (E.D.
Pa. March 10, 2015). It is Plaintiff’s burden to establish that the obligation at issue was a
consumer debt, which is one incurred “primarily for personal, family or household purposes.”
Id.

To support the allegation that the debt at issue was a consumer debt, Plaintiff points to

his own declaration, which states that Plaintiff “borrowed money from Check ‘N Go for personal
purposes.” (Pl.’s Dec. at ¶ 6). Defendants dispute this by arguing that this “conclusory”
statement is insufficient to establish that the debt was consumer in nature. (Def.s’ Sur-Reply at
2; Def.s’ Resp. at 6). Defendants’ argument is without merit. Moreover, Plaintiff’s deposition
testimony establishes that Plaintiff borrowed money from Check ‘N Go to pay bills and to make
reparations to his personal car. (Ex. 10 to Def.s’ Resp., Pl. Dep. at 21-22). Accordingly, there is
no genuine issue of material fact as to whether Plaintiff incurred a consumer debt.
2.

Defendant Belstadt’s Individual Liability

Plaintiff seeks to hold Defendant Belstadt individually liable on his claims under the
FDCPA. Defendants argue that Defendant Belstadt is not a “debt collector” and is therefore not
subject to personal liability under the FDCPA. (Def.s’ Resp. at 14). Whether or not Belstadt is a
“debt collector” under the FDCPA is a question of law for the Court to resolve. Kistner, 518
F.3d at 435-38. The record contains factors that make this question somewhat of a close call.

25

With that in mind, the Court believes that the undisputed facts establish that Defendant Belstadt
is a “debt collector” for purposes of the FDCPA.
The FDCPA defines “debt collector” as “any person who uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6).
The Sixth Circuit has advised that a member of an LLC can be held personally liable
under the FDCPA so long as the employee individually qualifies as a “debt collector.” Kistner,
518 F.3d at 37-38 (holding “that subjecting the sole member of an LLC to individual liability for
violations of the FDCPA will require proof that the individual is a ‘debt collector,’ but does not
require piercing of the corporate veil”).
In Kistner, the Sixth Circuit determined that the defendant was subject to individual
liability on the basis of his general participation in the debt collection activities of the LLC. Id.
437. The court in Kistner explained that personal “liability is not premised solely on the fact that
[the defendant] works for, and is the sole member of, the Law Offices.” Id. at 438. Instead, the
defendant in Kistner had performed a number of acts that supported a finding that he “regularly
engaged, directly or indirectly, in the collection of debts.”
The Sixth Circuit’s finding rested upon the following undisputed facts: (1) the defendant
drafted the form letter that was sent to the plaintiff/debtor; (2) the defendant was one of only two
attorneys at the law firm; (3) the defendant was the only member of the LCC; (4) the defendant
negotiated terms with the mailing service provider used in the debt-collection practice; (5) the
defendant oversaw compliance with applicable collection laws and when the intervention by a

26

lawyer became necessary; and (6) the remittance voucher directed the plaintiff to make her check
payable to the defendant individually. Id. at 438.
The Kistner court cited Ditty v. CheckRite, Ltd., 973 F. Supp. 1320 (D.Utah 1997), as an
example of circumstances which give rise to individual liability. In Ditty, the district court
premised a finding of personal liability on the part of the sole member of a law firm on the
following grounds: (1) the defendant was the firm’s sole attorney; (2) the defendant was the
developer of the “covenant not to sue” practice; and (3) the defendant supervised all of the firm’s
collection activities. Ditty, 973 F. Supp. at 1336-37.
Here, the undisputed facts establish that Belstadt “regularly collect[ed] or attempt[ed] to
collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” First,
the Court notes that the collection activities at issue in this case were PDL’s primary source of
income. Notably, as PDL’s highest ranking official, Belstadt developed and implemented
policies and procedures for a company whose primary profit-generating activity was the
collection of debts. This is a significant distinction between this case and other cases, such as
Kistner, where the defendants were members of companies that did not solely engage in debt
collection.
Moreover, the fact that Belstadt did not personally collect debts is irrelevant where, as
here, the FDCPA explicitly includes in its definition of debt collector those individuals who
indirectly participate in debt collection activities. 15 U.S.C. § 1692a(6). Here, in addition to
establishing policies that PDL employees were required to follow, Belstadt’s day-to-day
activities included checking in with, and answering the questions of, employees (floor managers
and administrators) who were directly involved in PDL’s debt collection efforts. Belstadt also

27

testified that he and the floor managers answered questions from debt collectors regarding
compliance with the FDCPA. (Ex. 4 to Pl.’s Br. at 35). If there were any changes or updates in
the law, Belstadt would share that information with PDL employees if he “felt that it was
something that should be shared.” (Id. at 37-38). Belstadt also served as one of two primary
points of contact for PDL’s auto-dialing service, Global Connect.
Defendants’ argument against personal liability is focused primarily on the fact that
Plaintiff has “fail[ed] to connect any personal involvement of Defendant Belstadt to Plaintiff’s
alleged violations of the FDCPA.” (Def.s’ Resp. at 17). As noted earlier, however, Plaintiff
need not point to evidence establishing that Belstadt was directly involved in the alleged FDCPA
violations so long as the facts establish his general participation in PDL’s debt collection
activities. The Court concludes that Defendant Belstadt qualifies as a debt collector under the
FDCPA because he was regularly engaged, at least indirectly, in the collection of debts.
3.

Defendant Pfalzer’s Liability

Defendant Pfalzer is proceeding pro se in this matter. In her one-page response to
Defendants’ motion, Pfalzer disputes that she was a “debt collector” under the FDCPA.
(Pfalzer’s Resp. at PgID 2093). In so doing, Pfalzer asserts that she had no verbal
communication with Plaintiff. (Id.). Pfalzer additionally contends that she was only a salaried
employee with no financial interest in PDL.
Pfalzer need not have verbal communication with a debtor or a financial interest in the
debt collection agency to qualify as a “debt collector” under the FDCPA. Here, the undisputed
facts establish that, at all times relevant to the instant action, Pfalzer was an agent of Defendant
PDL – she served as administrative director of PDL. Pfalzer’s primary responsibilities at PDL

28

included sending debtor letters and processing debtor payments. Pfalzer testified that she
supervised the payment processing of all money that came into PDL and that she processed three
payments for Plaintiff’s account.
Under a plain reading of the FDCPA, Pfalzer’s responsibilities render her a “debt
collector” under the FDCPA.
4.

Alleged FDCPA Violations

In his motion, Plaintiff asserts that there can be no genuine dispute of material fact as to
whether or not Defendants have violated the following provisions of the FDCPA: (1) 15 U.S.C. §
1692g, by failing to send Plaintiff required notice within five days after their initial
communication; (2) 15 U.S.C. § 1692c(b), by communicating with individuals from Plaintiff’s
place of employment in connection with the collection of a debt; (3) 15 U.S.C. § 1692c(a)(1), by
communicating with Plaintiff at a place or time known or which should be known to be
inconvenient to Plaintiff; (4) 15 U.S.C. § 1692c(a)(3), by communicating with Plaintiff at his
place of employment when it should have been known that such communication was prohibited;
and (5) 15 U.S.C. § 1692d, by engaging in conduct the natural consequence of which is to
harass, oppress, or abuse Plaintiff.
a.

15 U.S.C. § 1692g

Plaintiff argues that Defendants PDL, Belstadt and Pfalzer violated 15 U.S.C. § 1692g by
failing to send him required written notice detailing his rights. (Pl.’s Am. Compl. at ¶ 47).
Defendants PDL and Belstadt advance two arguments against liability. First, Defendants assert
that the required notice was sent to Plaintiff. Second, Defendants argue that Plaintiff’s § 1692g
claim is barred by the applicable statute of limitations. Defendant Pfalzer’s one-page response

29

also advances an argument against liability.
Although a close call, the Court concludes that Defendants have failed to sufficiently
demonstrate a genuine issue of fact as to whether a letter was actually sent to Plaintiff.
However, the Court shall deny Plaintiff’s request for summary judgment because there exists a
genuine issue of fact as to whether Defendants’ violation of § 1692g(a) occurred within the
applicable limitations period. The Court shall address both of Defendants’ arguments below.
i.

Whether Defendants Sent The Required Notice

Section 1692g(a) of the FDCPA requires a debt collector to provide certain written notice
to a debtor within five days of the collector’s “initial communication with a consumer in
connection with the collection of any debt.” 15 U.S.C. § 1692g(a). This Section provides, in
pertinent part, that:
Within five days after the initial communication with a consumer in connection with the
collection of any debt, a debt collector shall, unless the following information is
contained in the initial communication or the consumer has paid the debt, send the
consumer written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the debt will be assumed to be
valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirtyday period that the debt, or any portion thereof, is disputed, the debt collector will obtain
verification of the debt or a copy of a judgment against the consumer and a copy of such
verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the
debt collector will provide the consumer with the name and address of the original
creditor, if different from the current creditor.

30

15 U.S.C. § 1692g(a)(1)-(5).
Plaintiff’s amended complaint alleges that Defendants violated § 1692g when they failed
to provide the required written notice following his first telephone conversation with PDL, which
allegedly took place on September 19, 2013.7 (Pl.’s Am. Compl. at ¶ 47). Plaintiff concludes
that there can be no dispute that Defendants violated § 1692g since the record is without any
evidence establishing that Defendants actually sent the required notice to Plaintiff.
Plaintiff testified that he “never received from PDL a written notice setting forth [his]
rights to dispute the debt...” (Pl.’s Dec. at ¶ 15). To further support his claim, Plaintiff points to
the deposition testimony of Defendant Pfalzer, an administrator at PDL. Pfalzer testified that
PDL only sent such letters to debtors upon request. (Ex. 4 to Pl.’s Reply, Pfalzer Dep. at 53).
Defendants counter that they are not required to prove that Plaintiff actually received the notice
under § 1692g. Instead, Defendants are only required to send the notice to Plaintiff.
It is true that “the plain language of the [FDCPA] only requires that the debt collector
send the notice, not show actual receipt by the debtor.” Mahon v. Credit Bureau, Inc., 171 F.3d
1197 (9th Cir. 1999); Crain v. Pinnacle Fin. Group, Inc., 2007 WL 3408540 (E.D. Mich. Nov.
14, 2007). Accordingly, to establish that the required notice was sent, Defendants may “provide
testimony that a letter was sent and not returned as undeliverable.” Mahon, 171 F.3d at 1201.
Defendants contend that PDL “discharged its obligation under § 1692g(a) by sending
written notice of Plaintiff’s debt to his last known address.” (Def.s’ Resp. at 9). In support,

7

When making this argument, Plaintiff’s complaint and briefs assert that the initial
communication occurred on or about October 2013. However, Plaintiff’s deposition testimony
and interrogatory answers establish that the first communication occurred on September 19,
2013.
31

Defendants point to the deposition testimony of Defendant Belstadt. Belstadt testified that initial
notice letters are generated whenever PDL receives a new batch of business. (Ex. 4 to Def.s’
Resp. at 39, 60, 63). An administrator at PDL would be responsible for sending out such letters.
Belstadt further testified that “the very first letter would have been sent when [Plaintiff’s]
account would have been loaded into the database,” which in this case was October 26, 2012.
(Ex. 5 to Def.s’ Resp. at 96). When asked what evidence there was that a letter was sent to
Plaintiff, Belstadt responded: “that’s the way the system works, that’s what it does.” (Id.).
Although Defendants contend that they sent the required notice, the Court is not
persuaded that they have sufficiently raised a factual dispute as to this point. First, contrary to
Defendants’ assertion, Belstadt did not “unequivocally” state that an initial letter was mailed to
Plaintiff. Instead, he testified that PDL’s system generates a letter whenever a new account is
loaded in the database. Based upon this, Belstadt concluded that a letter “would have been sent”
to Plaintiff in October 2012. Second, Defendants have failed to point to any evidence
establishing that the letter was sent to the proper address. Third, Defendants have not pointed to
any evidence establishing that the letter was not returned as undeliverable. Fourth, PDL’s
collection notes do not reflect the mailing of the required written notice. Fifth, Defendants have
not produced the testimony of the PDL agent who sent the letter to Plaintiff. Belstadt could only
testify that the letter would have been sent by “somebody in admin.” (Ex. 5 to Def.s’ Resp. at
101). And most fatal to Defendants’ position is Defendants’ failure to produce a copy of the
initial notice letter sent to Plaintiff. Instead, Defendants provide the Court with: (1) a copy of a
generic notice, which Defendants allege conforms with the requirements of § 1692g(a); and (2) a
copy of a settlement letter dated May 21, 2014. (Ex. 2 to Def.s’ Resp.),

32

To the extent that Belstadt’s testimony relates to Plaintiff, it is based on speculation as
opposed to personal knowledge. Defendants’ only evidence that defendants complied with §
1692g–testimony that Plaintiff would have been sent a letter in October 2012 because the system
generates such notices whenever a new account is placed with PDL–is insufficient to create a
triable issue of material fact. See Wysong v. City of Health, 260 F. App’x 848, 857 (6th Cir.
2008) (if specific facts are derived from deposition testimony, it must rest upon the deponent’s
personal knowledge).
ii.

Factual Dispute Exists As To Whether Defendants’ § 1692g(a)
Violation Occurred Within The Applicable Limitations Period

Although Plaintiff has established a violation of § 1692g, summary judgment is
inappropriate because a fact issue exists as to when the initial communication between the parties
first occurred. This is relevant because it affects whether or not Plaintiff’s claim under § 1692g
is timely. An action to enforce liability under the FDCPA must be brought “within one year
from the date on which the violation occurs.” 15 U.S.C. § 1692K(d). Plaintiff brought the
instant action against Defendants on June 3, 2014. Thus, in order for the violation to be timely,
it must have occurred on or after June 3, 2013.
In his interrogatory answers, Plaintiff states that he was first contacted by PDL on
September 19, 2013. If this is true, any violation resulting from Defendants’ failure to send the
required notice would have occurred within five days after September 19, 2013, and Plaintiff’s
claim would be timely.
Defendants, on the other hand, claim that PDL’s initial contact with Plaintiff occurred on
March 4, 2013. Defendants rely on PDL’s collection notes, (Ex. 6 to Def.s’ Resp. at 7-8), and on
Defendant Belstadt’s testimony interpreting the notes. If Plaintiff was first contacted on March
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4, 2013, any violation resulting from Defendants’ failure to send the required notice would have
occurred within five days after March 4, 2013. Plaintiff’s claim would be untimely because it
would have been filed nearly three months after the limitations periods had run.
Because there exists a factual dispute as to whether or not Plaintiff’s claim is timely,
summary judgment as to the § 1692g claim is inappropriate at this time.
b.

15 U.S.C. 1692c(b))

Plaintiff argues that Defendants PDL and Belstadt violated Section 1692c(b) of the
FDCPA by placing calls to Plaintiff’s employer in connection with the collection of a debt.
Section 1692c(b) prohibits debt collectors from communicating with parties other than the
consumer, as follows:
Except as provided in section 1692b of this title, 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 postjudgment
judicial remedy, a debt collector may not communicate, in connection with the
collection of any debt, with any person other than the 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.
15 U.S.C. 1692c(b) (emphasis added). The FDCPA defines “communication” as “the conveying
of information regarding a debt directly or indirectly to any person through any medium.” 15
U.S.C. § 1692a(2). “To convey information regarding a debt, a communication must at a
minimum imply the existence of a debt. Otherwise, whatever information is conveyed cannot be
understood as ‘regarding a debt.’” Brown v. Van Ru Credit Corp., 804 F.3d 740, 743 (6th Cir.
2015).
Plaintiff argues that the evidence overwhelmingly establishes that PDL repeatedly
contacted Plaintiff’s employer in violation of the FDCPA. The following relevant facts are

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undisputed:(1) PDL agents contacted and spoke to Plaintiff’s supervisors, in connection with the
collection of the Check ‘N Go loan, on more than one occasion; (2) PDL agent/Defendant
Hasson testified that he typically disclosed to anyone who answered a call, including a debtor’s
employer, that he is a debt collector working for PDL; (3) Hasson dialed Plaintiff’s work land
line and spoke to Plaintiff’s supervisor, Jason Fettig; (4) Hasson left Plaintiff a voice mail on
Plaintiff’s cellular phone stating: “I just spoke to Jason at your job, basically, almost got into
words with him trying to leave you a message over there. I’m not trying to jeopardize your job at
all, but I do need to . . . have some contact from you at some point;” (5) Hasson testified that he
could not recall any of his conversations with Plaintiff’s supervisor; (6) PDL agent/Defendant
Puglisi (a.k.a. Joe Kennedy) dialed Plaintiff’s work land line and spoke to Plaintiff’s supervisor,
Jason Fettig; and (7) a PDL agent called Plaintiff’s work land line, spoke to Jason Fettig and
threatened to report him to the Better Business Bureau.
Defendants do not deny that PDL agents contacted and spoke to Plaintiff’s supervisors.
Nor do Defendants dispute that the calls were made in connection with the collection of a debt.
Instead, Defendants argue that Plaintiff’s evidence “does not proffer that Defendant discussed
Plaintiff’s debt with these individuals.” (Def.s’ Resp. at 12). Defendants have a point.
Although Plaintiff’s evidence strongly suggests that PDL agents implied the existence of
a debt when they spoke to Plaintiff’s supervisors, there is not enough in the record to warrant the
conclusion that Plaintiff has established a violation of § 1692c(b) as a matter of law. The
substance of the third-party communications at issue remains unknown. For example, while
Hasson testified that he typically disclosed to employers the fact that he was a debt collector, he
also testified that he could not recall his conversations with Plaintiff’s supervisors. And while it

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remains undisputed that a PDL agent threatened to report Plaintiff’s supervisor to the Better
Business Bureau, the contents of the conversation are not known.
Because the Court cannot conclusively determine the content of PDL’s communications
with Plaintiff’s supervisors, it cannot conclude that Plaintiff has established a violation of §
1692c(b) as a matter of law. As such, the Court shall deny summary judgment as to the §
1692c(b) claim.
c.

15 U.S.C. § 1692c(a)(1) and 15 U.S.C. § 1692c(a)(3)

Plaintiff alleges that Defendants violated the FDCPA by communicating with Plaintiff at
a time or place known, or which should be known, to be inconvenient and despite knowing, or
having reason to know, that such communications were prohibited, in violation of 15 U.S.C. §
1692c(a)(1) and § 1692c(a)(3). In support, Plaintiff argues that although PDL agents received
actual knowledge from Plaintiff that the calls to his place of employment were inconvenient and
prohibited, Defendants continued to call Plaintiff at work.
Under 15 U.S.C. § 1692c, a debt collector may not communicate with a consumer in
connection with the collection of any debt, without the prior written consent of the consumer, at
any unusual time or place known or which should be known to be inconvenient to the consumer
(15 U.S.C. § 1692c(a)(1)) or at the consumer’s place of employment if the consumer’s employer
prohibits the consumer from receiving that type of communication (15 U.S.C. § 1692c(a)(3)).
Plaintiff’s claims under these sections are premised upon the following undisputed facts:
(1) On September 19, 2013, Plaintiff requested that he not be contacted Plaintiff at his place of
employment and asked that he be called on his cellular phone at 5 p.m.; (2) On December 4,
2013, Plaintiff advised a PDL agent that he was not permitted to receive phone calls at work; (3)

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PDL agents repeatedly contacted Plaintiff while at work despite Plaintiff’s requests that such
communications cease; and (4) PDL agents repeatedly dialed Plaintiff’s work land line and
spoke to Plaintiff’ supervisors despite Plaintiff stating that such communications were
prohibited.
Defendants advance several meritless arguments against liability. As to Plaintiff’s §
1692c(a)(1) claim, Defendants argue that “Plaintiff fails to produce evidence to support his
allegations that the calls were at an unusual time or place known, or which should be known, to
be inconvenient.” (Def.s’ Resp. at 10). Defendants contend that “Plaintiff’s evidence merely
shows that he told Defendant not to call him at all.” (Id.). In making this argument, Defendants
conveniently ignore Plaintiff’s interrogatory answers and the calls between Plaintiff and PDL
agents, wherein Plaintiff explicitly asked PDL agents to stop placing calls to Plaintiff at his place
of employment and/or while Plaintiff was at work.
Next, Defendants argue that “Plaintiff does not indicate that he informed PDL of the days
and times that he was at work.” (Id. at 11). This argument fails because it disregards the
undisputed fact that PDL agents knowingly placed calls to Plaintiff’s work land line, not just
Plaintiff’s cellular phone. This distinguishes the instant facts from cases where debt collectors
only placed calls to the debtor’s cellular phone during the presumptively reasonable hours of 8
a.m. and 9 p.m. C.f. Saunders v. NCO Financial Systems, Inc., 910 F. Supp. 2d 464 (E.D.N.Y.
2012) (finding that a debt collector did not violate the FDCPA by calling between 8 a.m and 9
p.m. and all calls were made to a cell phone number that debtor had provided to the creditor).
This argument also lacks merit for another reason. On several occasions, when Plaintiff was
contacted on his cellular phone while at work, Plaintiff advised that he was at work and would

37

have to return the call at a later time. This further supports Plaintiff’s claims because something
was said to put PDL agents on notice that something about their calls (made between the
presumptively reasonable hours of 8 a.m. through 9 p.m.) was inconvenient.
As to Plaintiff’s § 1692c(a)(3) claim, Defendants argue that “Plaintiff presents no
evidence that Plaintiff’s employer prohibited calls to its employees, or that if it had such a
policy, that the policy was communicated to Defendants.” (Def.s’ Resp. at 11). Again,
Defendants are ignoring the undisputed fact that Plaintiff advised PDL agents, on more than one
occasion, that he was not permitted to receive such calls at work. This is sufficient to put
Defendants’ agents on notice under Section 1692c(a)(3). See Horkey v. J.V.D.B. & Assoc., Inc.,
333 F.3d 769, 773 (7th Cir. 2003) (holding that consumer’s statement that she could not discuss
her debt at work was enough to put debt collector on notice that consumer’s employer prohibited
such communications at work).
Because there is no dispute that PDL agents repeatedly called Plaintiff at his place of
employment after Plaintiff specifically asked that he no longer be contacted there and after he
advised that he is not permitted to receive such calls, the Court shall grant summary judgment as
to the §§ 1692c(a)(1) and 1692c(a)(3) claims.
d.

15 U.S.C. § 1692d

Under 15 U.S.C. § 1692d, “a debt collector may not engage in any conduct the natural
consequences of which is to harass, oppress, or abuse any person in connection with the
collection of a debt.” Section 1692d lists examples of harassment, but courts have clarified that
this is not an all inclusive list. Plaintiff’s motion fails to specify which enumerated example his
claim is premised upon. Instead, Plaintiff merely argues that Defendants violated the FDCPA’s

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proscription against harassing and unfair conduct by continuing to contact Plaintiff despite
Plaintiff’s requests that such communications cease. (Pl.’s Br. at 16-17).
The Sixth Circuit has advised that “although the question of ‘whether conduct harasses,
oppresses, or abuses will [ordinarily] be a question for the jury . . . . Congress has indicated its
desire for the courts to structure the confines of § 1692d.’” Harvey v. Great Seneca Fin. Corp.,
453 F.3d 324, 330 (6th Cir. 2006) (quoting Jeter v. Credit Bureau, 760 F.2d 1168, 1179 (11th
Cir. 1985)).
Here, Plaintiff does not apply any law to the facts presently before the Court and
therefore fails to assist the Court in structuring the confines of § 1692d. Because Plaintiff fails to
cite a single analogous case to support his position, the Court is unduly burdened with the task of
researching whether the undisputed facts here establish liability as a matter of law. The Court
refuses to undertake this task. As such, the Court shall deny Plaintiff’s request for summary
judgment as to § 1692d of the FDCPA.
C.

Plaintiff’s MOC Claims
Like the FDCPA, Michigan’s Occupational Code regulates the practice of debt

collection. Plaintiff seeks summary judgment as to liability and statutory damages against
Defendant PDL and its managing agent, Defendant Belstadt, for several violations of Michigan’s
Occupational Code (“MOC”).
In his brief, Plaintiff argues that Defendants violated the following provisions of the
MOC: (1) M.C.L. §§ 339.915(I), 445.252 (I), which prohibits communicating information
relating to a debtor’s indebtedness to an employer or an employer’s agent; (2) M.C.L. §§
339.915(n), 445.252(n), which prohibits using a harassing, oppressive, or abusive method to

39

collect a debt; (3) M.C.L. §§ 339.918, 445.252(n), which requires a debt collector to provide a
notice detailing the consumer’s rights under the MOC; and (4) M.C.L. § 339.915(q), which
requires collection agencies to implement procedures and to avoid violations of the MOC.
1.

Plaintiff Is Not Entitled To Summary Judgment As To His Claims Under
M.C.L. §§ 339.915(I) and 339.915(n)

Plaintiff’s state-law claims are based entirely on the same underlying conduct as the
FDCPA claims, and all but one of these claims rest upon Michigan statutory provisions that
mirror their counterparts in the FDCPA. Thus, the Court shall treat the parallel state-law claims
in the same manner that it treated their FDCPA counterparts. Accordingly, the Court shall deny
summary judgment against Defendants PDL and Belstadt on the following claims: M.C.L. §§
339.915(I), and 339.915(n).
2.

Plaintiff Is Entitled To Summary Judgment As To His Claim Under M.C.L.
§ 339.918

However, the Court shall not deny summary judgment as to Plaintiff’s claim under §
339.918 because it is not subject to the same one-year statute of limitations applicable to § 1692g
of the FDCPA. Like § 1692g, § 339.918 requires that written notice detailing a debtors rights be
sent to a debtor “[w]ithin 5 days after the initial communication with a consumer in connection
with a collection of a debt.” M.C.L. 339.918(1). However, unlike Section 1692g, § 339.918 is
subject to Michigan’s “catch all” six year limitations period. Purnell v. Arrow Fin. Servs., LLC,
2009 WL 1508340, at *2 (E.D. Mich. May 29, 2009).
As the Court explained above, Defendants have failed to raise a genuine dispute of fact as
to whether written notice was actually sent to Plaintiff. Thus, the Court shall grant summary
judgment as to liability and statutory damages on this claim.

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3.

Plaintiff Is Not Entitled To Summary Judgment As To His Claim Under
M.C.L. § 339.915(q)

Plaintiff’s M.C.L. § 339.915(q) claim–that Defendants violated the MOC by failing to
implement a procedure designed to prevent a violation by an employee–does not mirror an
FDCPA provision and the facts underlying this claim are not the same as those underlying the
FDCPA claims. Thus, the Court must address this issue separately.
A violation of M.C.L. § 339.915(q) occurs when an employer “fail[s] to implement a
procedure designed to prevent a violation by an employee.” Plaintiff argues that the “well
documented failure of PDL to train its employees, provide a manual advising its employees of
the requirements of the FDCPA or Michigan law, and the refusal to implement any recognizable
disciplinary program to deter violations establishes that PDL has violated the MOC.” (Pl.’s Br.
at 20). In making this argument, Plaintiff does not support his position with any applicable case
law.
Moreover, Plaintiff’s argument discounts the following undisputed facts: (1) PDL
administers FDCPA examinations before a debt collector is allowed on the floor and passing the
exam is a condition of employment; (2) PDL randomly audits debt collection calls to ensure
compliance with the FDCPA; (3) Belstadt and floor managers answer all questions debt
collectors may have regarding compliance with the FDCPA; (4) Belstadt provides employees
with changes/updates in the law if he believes it is necessary; and (5) floor managers are verbally
instructed to include any alleged misconduct in an employee’s file.
Because Plaintiff has not properly supported his position with any substantive analysis,
the Court cannot conclude, as a matter of law, that Defendants failed to implement a procedure
designed to prevent violations by an employee. As such, the Court shall deny summary
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judgment as to M.C.L. § 339.915(q).
D.

Damages Under the TCPA, FDCPA & MOC
1.

TCPA

In his supplemental brief, Plaintiff clarifies that he seeks summary judgment as to
liability and statutory damages on his TCPA claim. The TCPA provides for recovery for the
greater of actual monetary losses, or $500 for each violation. In the event that a defendant acted
knowingly or willfully, the statute provides for recovery by the plaintiff of treble damages, or a
maximum fine of $1,500 for each violation. 47 U.S.C. § 227(b)(3).
The Court finds that Plaintiff is entitled to damages because Defendants PDL and
Belstadt willfully or knowingly violated the TCPA by continuing to send prerecorded calls to
Plaintiff’s cellular phone after Plaintiff had asked for all communications from PDL to cease.
Here, Plaintiff does not calculate the total amount of damages he seeks against
Defendants PDL and Belstadt for their violations of the TCPA. Plaintiff must therefore submit
his calculation for appropriate damages.
2.

FDCPA

In his supplemental brief, Plaintiff clarifies that he seeks summary judgment as to
liability and statutory damages on his FDCPA claims. Plaintiff requests a jury determination as
to the amount of actual damages. The FDCPA allows a successful plaintiff to recover actual
damages, reasonable attorney’s fees and additional damages up to $1,000. The statute requires
the Court in the case of an individual plaintiff to consider four factors in making its award
decision: the frequency, nature and persistence of the violations, and the extent to which the
violations were intentional. 15 U.S.C. § 1692k(b)(1).

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The Court finds that Plaintiff is entitled to damages against Defendants PDL and Belstadt
liable for violations of §§ 1692c(a)(1) and 1692c(a)(3) of the FDCPA. Plaintiff must therefore
submit his calculation for appropriate damages. As part of his calculations, Plaintiff shall
address and incorporate the above mentioned statutory factors.
3.

MOC

Plaintiff’s supplemental brief also clarifies that Plaintiff seeks summary judgment as to
liability and statutory damages on his claims under the MOC. Plaintiff also seeks enhanced
damages under the MOC. The MOC provides damages. See M.C.L. § 339.916(2) (“recovery
shall be in the amount of actual damages or $50.00, whichever is greater. If the court finds that
the method, act, or practice was a wilful violation, it may award a civil penalty of not less than 3
times the actual damages, or $150.00, whichever is greater...”).
The Court finds that Plaintiff is entitled to damages against Defendants PDL and Belstadt
for violations of M.C.L. 339.918. Plaintiff must therefore submit his calculation for appropriate
damages.
CONCLUSION & ORDER
For the foregoing reasons, Plaintiff’s partial motion for summary judgment is DENIED
IN PART and GRANTED IN PART.
Plaintiff’s motion is DENIED as follows:
C

The Court shall DENY summary judgment against Defendants PDL, Belstadt and
Pfalzer as to § 1692g of the FDCPA because a material dispute of fact exists as to
whether such a claim is timely;

C

The Court shall DENY summary judgment against Defendants PDL and Belstadt
as to § 1692c(b) and § 1692d of the FDCPA and as to M.C.L. § 339.915(I) and §
339.915(n) of the MOC; and

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C

The Court shall DENY summary judgment against Defendants PDL and Belstadt
for violating M.C.L. § 339.915(q) of the MOC

Plaintiff’s motion is GRANTED as follows:
C

The Court shall GRANT summary judgment as to Count I on the issue of liability
and statutory damages against Defendant PDL Recovery and Defendant Belstadt
for willful violations of § 227(b)(1)(A)(iii) of the TCPA;

C

The Court shall GRANT summary judgment on the issue of liability and statutory
damages against Defendants PDL and Belstadt for violations of § 1692c(a)(1) and
§ 1692c(a)(3) of the FDCPA; and

C

The Court shall GRANT summary judgment on the issue of liability and statutory
damages against Defendants PDL, Belstadt and Pfalzer for violations of M.C.L. §
339.918 of the MOC.

PLAINTIFF IS THEREFORE ORDERED to submit his calculations for appropriate
damages, consistent with this Opinion & Order, no later than three weeks from the date in
which this Opinion & Order is issued. Additionally, because the Court finds merit in
Defendants’ double recovery argument, the parties are ordered to appear for a status conference
as to this issue on April 4, 2017 at 2 p.m
IT IS SO ORDERED.

Dated: February 23, 2017

s/Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on February 23, 2017, the foregoing document was served on counsel of
record via electronic means and upon Mara Pfalzer via First Class mail at the address below:
Mara Pfalzer
919 Bennett Road
Angola, NY 14006

s/J. McCoy
Case Manager
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