Ploch v. Client Services, Inc.

Filing 11

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff Arric Plochs Motion for Summary Judgment [ECF No. 6] is GRANTED. IT IS FURTHER ORDERED that Plaintiff shall submit briefing regarding damages within 14 fourteen days of this Order. De fendant will have 7 seven days to respond to Plaintiffs damages briefing, and Plaintiff will have an additional 7 days to reply to Defendants response. 6 ( Response to Court due by 4/15/2013.) Signed by District Judge Henry E. Autrey on 4/1/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARRIC PLOCH,
Plaintiff,
v.
CLIENT SERVICES, INC.,
Defendant.

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No. 4:12CV0518 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Arric Ploch’s Motion for
Summary Judgment [ECF No. 6]. Defendant Client Services, Inc.(“CSI”) filed a
Memorandum in Opposition to Plaintiff’s motion [ECF No. 9], to which Plaintiff
replied [ECF No. 10]. For the reasons set forth below, Plaintiff’s motion is
granted.
Factual Background1
Plaintiff Arric Ploch is a current resident of St. Charles County, Missouri.
Defendant CSI is a Missouri corporation; the principal business purpose of CSI is
the collection of debts, and CSI regularly attempts to collect debts alleged to be

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The Court’s recitation of the facts is drawn from the Plaintiff’s Statement of
Uncontroverted Facts in Conjunction With His Motion for Summary Judgment [ECF no. 6-1]. It
appears to the Court that Defendant’s Answer and Affirmative Defenses [ECF No 8] is intended
to be his response to Plaintiff’s Statement of Uncontroverted Facts.

due to another. CSI is engaged in the collection of debts from consumers using the
mail and telephone. Plaintiff previously filed suit in St. Charles County against
Defendant CSI for violations of the Fair Debt Collections Practices Act
(“FDCPA”) and Telephone Consumer Protections Act (“TCPA”) in their attempts
to collect a debt stemming from a Target Visa account. Defendant dealt
exclusively with Plaintiff’s counsel on the previous suit to reach a settlement
agreement, and Defendant knew Plaintiff was represented by counsel with respect
to the debt. On February 15, 1012, the St. Charles County suit was dismissed.
Beginning on February 17, 2012, however, Defendant telephoned Plaintiff
multiple times in an attempt to collect the Target debt. On or about February 20,
2012, Plaintiff called Defendant and informed them that he was still represented
by counsel on this matter. During said call, Defendant communicated to Plaintiff
that the correspondence was regarding the same Target debt from the previous
litigation. Additionally, Defendant sent Plaintiff a collection letter in another
attempt to collect the Target Debt. This letter was dated February 17, 2012.
Summary Judgment Standard
The standard for summary judgment is well settled. In determining whether
summary judgment should issue, the Court must view the facts and inferences from
the facts in the light most favorable to the nonmoving party. Matsushita Elec.
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Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005); Littrell v. City of
Kansas City, Mo., 459 F.3d 918, 921 (8th Cir. 2006). The moving party has the
burden to establish both the absence of a genuine issue of material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8 th Cir. 1996). Once the
moving party has met this burden, the nonmoving party may not rest on the
allegations in his pleadings but by affidavit or other evidence must set forth specific
facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e);
Anderson 477 U.S. at 256; Littrell , 459 F.3d at 921. “The party opposing
summary judgment may not rest on the allegations in its pleadings; it must ‘set forth
specific facts showing that there is a genuine issue for trial.’” United of Omaha
Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir.2006) (quoting Fed.R.Civ.P.
56(e)); “‘Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.’ Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).” Hitt v. Harsco Corp., 356 F.3d
920, 923 (8th Cir. 2004). An issue of fact is genuine when “a reasonable jury could

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return a verdict for the nonmoving party” on the question. Anderson, 477 U.S. at
248; Woods, 409 F.3d at 990.
To survive a motion for summary judgment, the “nonmoving party must
‘substantiate his allegations with sufficient probative evidence [that] would permit a
finding in [his] favor based on more than mere speculation, conjecture, or fantasy.’
Wilson v. Int’l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)(quotation
omitted).” Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003).
The nonmoving party may not merely point to unsupported self-serving allegations,
but must substantiate allegations with sufficient probative evidence that would
permit a finding in the his or her favor. Wilson v. Int’l Bus. Mach. Corp., 62 F.3d
237, 241 (8th Cir.1995). “The mere existence of a scintilla of evidence in support
of the [nonmoving party’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S.
242 at 252; Davidson & Associates v. Jung, 422 F.3d 630, 638 (8th Cir. 2005).
Summary Judgment will be granted when, viewing the evidence in the light most
favorable to the nonmoving party and giving the nonmoving party the benefit of all
reasonable inferences, there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Samuels v. Kansas City Mo. Sch.
Dist., 437 F.3d 797, 801 (8th Cir. 2006). “Mere allegations, unsupported by

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specific facts or evidence beyond the nonmoving party’s own conclusions, are
insufficient to withstand a motion for summary judgment.” Thomas v. Corwin, 483
F.3d 516, 526-7(8th Cir. 2007). “Simply referencing the complaint, or alleging that
a fact is otherwise, is insufficient to show there is a genuine issue for trial.”
Kountze ex rel. Hitchcock Foundation v. Gaines, 2008 WL 2609197, 3 (8th Cir.
2008).
Discussion

Congress enacted the FDCPA “to eliminate abusive debt collection
practices by debt 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. § 1692e.
The FDCPA requires that an entity collecting a debt make certain
disclosures to the person from whom it attempts to collect a debt. These
disclosures include: (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 thirty-day
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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. FDCPA, 15
U.S.C. § 1692g(a).
In the event the consumer notifies the debt collector, in writing, within
thirty days that the debt at issue is disputed, the debt collector is required by the
FDCPA, § 1692g(b), to “cease collection of the debt, or any disputed portion
thereof, until the debt collector obtains verification of the debt or a copy of a
judgment.” The FDCPA does not require that an independent investigation of the
validity of a debt referred for collection be conducted. Jenkins v. Heintz, 124 F.3d
824, 828 (7th Cir.1997). Further, the FDCPA prohibits debt collectors from
communicating with consumers represented by counsel without prior consent from
counsel or from the consumer. FDCPA, §1692c(a)(2).

Plaintiff contends that Defendant violated the FDCPA when Defendant
contacted Plaintiff, who was represented by counsel, regarding the Target Visa
account debt. Plaintiff alleges that Defendant knew he was represented by counsel
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with respect to the debt and that no consent had been given by Plaintiff or his
counsel to the Defendant to contact Plaintiff. Plaintiff seeks statutory damages in
the amount of $1,000, actual damage for mental anguish and emotional distress in
the amount of $1,000 and attorneys’ fees.
Defendant opposes Plaintiff’s position and has filed its own affirmative
defense. See ECF No. 8. Defendant contends that CSI’s communications following
the conclusion of the initial lawsuit between it and Plaintiff was the result of a
bona fide error. To qualify for the bona fide error defense, a debt collector must
show: (1) the presumed FDCPA violation was not intentional; (2) it must show
that the presumed FDCPA violation resulted from a bona fide error; and (3) it
must show that it maintained procedures reasonably adapted to avoid any such
error. 15 U.S.C. §1692k(c); Kort v. Diversified Collections Services, Inc., 394
F.3d 530, 537 (7th Cir. 2005). Based on the Affidavit of Edward Little2 [ECF No.
9-1], CSI did not intend to contact Plaintiff regarding the debt following
settlement of the lawsuit. Upon review of Defendant’s Memorandum in
Opposition to Plaintiff’s Motion for Summary Judgment [ECF No 9], Defendant’s
Answer and Affirmative Defenses [ECF No. 8] and Little’s Affidavit [ECF No. 91], Defendant has failed to offer any specific facts detailing how or why the
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Edward Little is the Chief Information Officer of Defendant CSI.
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multiple correspondences were unintentional. Instead, Defendant merely offers
self-serving, conclusory statements that the correspondences were unintentional
without explaining any facts that caused the multiple calls and letter. As such,
Defendant CSI has failed to meet the first element of the bona fide error defense.
The Court will assess damages after briefing on the matter is complete.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Arric Ploch’s Motion for
Summary Judgment [ECF No. 6] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall submit briefing regarding
damages within [14] fourteen days of this Order. Defendant will have [7] seven
days to respond to Plaintiff’s damages briefing, and Plaintiff will have an
additional [7] days to reply to Defendant’s response.
Dated this 1st day of April, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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