Gelakoski v. Colltech, Incorporated
ORDER granting in part 8 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 1/10/2013. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-498(DSD/AJB)
Brianna R. Sadler, Esq. and Madgett Law, LLC, 3637 Togo
Road, Suite 417, Wayzata, MN 55391, counsel for
Matthew R. Doherty, Esq., Ryan J. Trucke, Esq. and
Brutlag, Hartmann & Trucke, PA, 3555 Plymouth Boulevard,
Suite 117, Minneapolis, MN 55447, counsel for defendant.
This matter is before the court upon the motion for summary
judgment by defendant Colltech, Incorporated (Colltech).
a review of the file, record and proceedings herein, and for the
following reasons, the court grants the motion in part.
Colltech to collect a debt from plaintiff Chase Gelakoski.
November 10, 2010, Dakota Electric Company assigned a debt to
Costello Aff. ¶ 4.
On November 19, 2010, Colltech sent
an initial communication letter to Gelakoski.
Id. ¶ 10; id. Ex. A,
Thereafter, during a February 10, 2011, phone conversation,
Gelakoski stated that the debt had been paid in full.
Id. ¶ 8.
response, a Colltech representative offered to send Gelakoski an
itemized statement outlining the still pending debt. Id. Colltech
sent the statement on April 26, 2011.
Gelakoski disputes that
Colltech sent the initial communication letter or the itemized
In total, Colltech called Gelakoski nine times in an
attempt to collect the debt.
Id. ¶ 12.
On January 25, 2012, Gelakoski filed suit in Minnesota court,
alleging violations of the Fair Debt Collection Practices Act
(FDCPA); the Telephone Consumer Protection Act (TCPA); and common
Colltech timely removed, and moves for summary judgment.
Standard of Review
“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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
This exhibit has a list of seventeen character alpha-numeric
sequences. See Costello Aff. Ex. A, at 2. The first entry reads
At oral argument, Colltech explained
that the first six digits of this sequence are a date, the letters
“AL” are a code for “A Letter” and the last nine digits are
Gelakoski’s account number.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
A party asserting that a genuine dispute
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
Fed. R. Civ. P.
If a plaintiff cannot support each essential element
of a claim, the court must grant summary judgment because a
necessarily renders all other facts immaterial.
Celotex, 477 U.S.
Gelakoski argues that Colltech violated the FDCPA by (1)
failing to provide notice as required by 15 U.S.C. § 1692g(a) and
(2) engaging in false and misleading practices in violation of 15
U.S.C. § 1692e(10).
Under the FDCPA, a debt collector must, within five days of
the initial communication, provide the debtor:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt
(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
thirty-day 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
(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
communication with Colltech was a December 2010 phone call and that
he did not receive the required notice within five days.
responds that its first contact with Gelakoski was an initial
communication letter sent on November 19, 2010.
See Costello Aff.
Moreover, Colltech explains that the initial communication
letter satisfied the requirements of § 1692g(a).
In support, Gelakoski notes that the purported letter has a
typewritten date of May 2, 2012, that has been scratched out and
replaced with the handwritten date of November 19, 2010.
Costello Aff. Ex. B. Colltech explains, however, that May 2, 2012,
was the date that the letter was reprinted and that the “debtor
account history” confirms that the initial communication letter was
sent on November 19, 2010.
See Costello Aff. ¶ 10; id. Ex. A, at
2 (providing “111910” date entry).
Although Gelakoski disputes
requires only that notice be sent, and a collection agency “need
not establish actual receipt by the debtor.”
Gray v. Four Oak
Court Ass’n, 580 F. Supp. 2d 883, 888 (D. Minn. 2008) (citation and
internal quotation marks omitted).
Viewing these facts in the
light most favorable to Gelakoski, the court concludes that no
reasonable juror could find that Colltech failed to send the
initial communication letter on November 19, 2010.
As a result,
Colltech complied with the notice requirement of § 1692g(a), and
summary judgment as to this claim is warranted.
False or Misleading Practices
It is a violation of the FDCPA for a debt collector to use
“any false representation or deceptive means to collect or attempt
to collect any debt.”
15 U.S.C. § 1692e(10).
that Colltech violated this provision by (1) failing to send an
itemized bill, (2) stating that non-payment would be reported to
credit agencies; and (3) calling from a blocked phone number.
Gelakoski argues that Colltech failed to send an itemized
statement after promising to do so.
Colltech responds that the
debtor account history shows an entry for “042611,” indicating that
an itemized statement was sent on April 26, 2011.
¶ 8; id. Ex. A, at 2.
Gelakoski provides no evidence to rebut this
presumption, and the court concludes that no reasonable juror could
find that Colltech failed to send an itemized statement on April
As a result, Colltech did not make a false or misleading
statement in reference to the itemized statement.
Credit Bureau Reporting
Gelakoski next argues that he disputed the alleged debt and
that Colltech improperly threatened to report him to a credit
Colltech responds that Gelakoski never disputed
the debt as fraudulent.
When a debt is disputed, the collection agency must note this
fact when reporting the debt to a consumer reporting agency.
15 U.S.C. § 1681s-2(a)(3).
Gelakoski, however, introduces no
admissible evidence that Colltech asserted its right to report the
In opposition to Colltech’s motion, Gelakoski submitted a
recording of a purported phone call between the parties. Pl.’s Ex.
This recording, however, was not accompanied by an
authenticating affidavit or noticed on ECF.
On a motion for
summary judgment, “documents must be authenticated by and attached
to an affidavit made on personal knowledge setting forth such facts
Moreover, Colltech states that Gelakoski never disputed the debt as
Costello Aff. ¶ 8.
Viewing these facts in the light
most favorable to Gelakoski, the court concludes that no reasonable
juror could find that Colltech engaged in false or misleading
practices by explaining its right to report the debt.
Blocked Phone Number
Gelakoski next argues that Colltech used a deceptive practice
by calling from a blocked phone number.
alleges that Colltech “routinely blocked its number when contacting
Plaintiff on his cell phone.”
Compl. ¶ 35.
Colltech responds that
it never called Plaintiff’s cellular number.
Costello Aff. ¶ 6.
Gelakoski conceded as much, explaining that he has a “Google Voice
account that is routed to [his] cellular phone.”
Moreover, Gelakoski’s affidavit presents no evidence that
Colltech blocked its phone number.
As a result, no reasonable
as would be admissible in evidence or a deposition that meets the
requirements of Fed. R. Civ. P. 56(e). Documents which do not meet
those requirements cannot be considered.” Stuart v. Gen. Motors
Co., 217 F.3d 621, 636 n.20 (8th Cir. 2000) (citations omitted).
The court, therefore, does not consider the content of the
The court notes that informing a debtor “that failure to pay
could adversely affect [his] credit reputation” does not constitute
a false representation under the FDCPA.
Wade v. Reg’l Credit
Ass’n, 87 F.3d 1098, 1100 (9th Cir. 1996).
juror could find that Colltech blocked its number while calling
Therefore, summary judgment as to the FDCPA claim is
III. TCPA Claim
Under the TCPA, it is unlawful for any debt collector “to make
any call ... using any automatic telephone dialing system.”
U.S.C. § 227(b)(1)(A).
Gelakoski argues that Colltech contacted
him using an auto-dialer.
Specifically, Gelakoski explains he
“believe[s] that [his] phone numbers were dialed automatically.”
See Gelakoski Aff. ¶ 13.
Gelakoski, however, provides no support
for this allegation other than this conclusory assertion. Colltech
explains, however, that it does not own an auto-dialer.
Aff. ¶ 9.
As a result, no reasonable juror could find that
Colltech called Gelakoski from an auto-dialer.
judgment as to the TCPA claim is warranted.
State Law Claims
The court has already dismissed the FDCPA and TCPA claims, the
claims for which original jurisdiction existed. The court must now
consider whether to exercise supplemental jurisdiction over the
remaining state law claims. See 28 U.S.C. § 1367(c)(3); Johnson v.
City of Shorewood, Minn., 360 F.3d 810, 819 (8th Cir. 2004).
the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine - judicial economy, convenience,
fairness, and comity - will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Dodson v. Univ.
of Ark. for Med. Scis., 601 F.3d 750, 756 (8th Cir. 2010) (per
curiam) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
Based on consideration of the pendent jurisdiction
supplemental jurisdiction over the state-law claims.
the court dismisses Gelakoski’s remaining state-law claims without
Accordingly, based on the above, IT IS HEREBY ORDERED that:
Defendant’s motion to dismiss [ECF No. 8] is granted in
Practices Act and Telephone Consumer Protection Act are dismissed
with prejudice; and
LET JUDGMENT BE ENTERED ACCORDINGLY.
January 10, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
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