Brenner v. American Education Services (AES)

Filing 74

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment, (Doc. No. 31), is granted. IT IS FURTHER ORDERED that all other pending motions are denied, as moot. A separate judgment is entered this same date. 31 Signed by District Judge Henry E. Autrey on 1/8/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSHUA SETH BRENNER,

)
)
Plaintiff,
)
)
vs.
)
)
AMERICAN EDUCATION SERVICES, )
)
Defendant.
)

Case No. 4: CV1631 HEA

OPINION, MEMORANDUM AND ORDER
Plaintiff has filed this pro se action against Defendant claiming his rights
under Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. and
the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 had been
violated by Defendant. The matter is before the Court on Defendant’s Motion for
Summary Judgment, (Doc. No. 31).1
Facts and Background
Plaintiff’s First Amended Complaint alleges that Defendant purchased
certain student loans and engaged in harassing actions in its effort to collect the
loans. Further, Plaintiff claims Defendant called his cell phone number on

1

Plaintiff has filed a “Memorandum in Support of Plaintiff’s Motion for Summary
Judgment, but has not filed a Motion for Summary Judgment, nor has he filed an Opposition to
Defendant’s Motion. As such, the Court construes Plaintiff’s Memorandum as his Opposition to
the pending motion for summary judgment.

numerous occasions without his consent in violation of the TCPA. Plaintiff seeks
damages for each telephone call and seeks treble damages for willful violations.
In its Statement of Uncontested Facts, Defendant establishes that American
Educational Services, (AES), is a fictitious name used by Pennsylvania Higher
Education Assistance Agency, a state-agency of the Commonwealth of
Pennsylvania. In relation to Plaintiff’s private student loans, the record establishes
that AES acted as the loan servicer for certain student loans originated
by various private student loan lenders between December 17, 2004 and August l,
2007. These loans have since been charged off the AES system. AES began
servicing the loans prior to them becoming delinquent or in default.
Plaintiff expressly provided his cell phone number on numerous documents
sent to AES throughout the servicing of his private student loans. In particular,
the forbearance forms Plaintiff completed contained an agreement that AES was
authorized to use an automated telephone dialing system. Moreover, the forms
included language which informed Plaintiff that he did not have to include his
telephone number.
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 the inferences
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Woods v. DaimlerChrysler
Corp., 409 F.3d 918, 921 (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 show 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 (8th 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 adduce 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 nonmoving party must articulate and substantiate specific facts showing
a genuine issue of material fact. “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 Life 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 return a verdict

for the nonmoving party” on a factual issue. 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);” Putnam v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003). A plaintiff may not merely point to unsupported self-serving
allegations, but must substantiate allegations with sufficient probative evidence
that would permit a finding in the plaintiff’s favor. Wilson 62 F.3d at 241 (8th Cir.
1995); Smith v. International Paper Co., 523 F.3d 845,848 (8th Cir. 2008). “The
mere scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. 242 at 252; Davidson & Assoc. v. Jung, 422 F.3d 630, 638 (8th
Cir. 2005); Smith, 523 F.3d at 848.
DISCUSSION
FDCPA
Plaintiff claims that AES violated the FDCPA when it attempted to collect
on his loans. The FDCPA, however, specifically excludes Defendant from its
coverage by reason of the fact that AES began servicing the loans prior to any
delinquency or default.

The FDCPA excludes:
any person collecting or attempting to collect any debt owed or due or
asserted to be owed or due another to the extent such activity . . . concerns a debt
which was not in default at the time it was obtained by such person.
15 U.S.C. § 1692a(6)(F)(iii). It is undisputed that AES serviced the loans prior to
any delinquency or default, and as such, the FDCPA is inapplicable to it and it is
entitled to judgment as a matter of law on Plaintiff’s FDCPA claim.
TCPA
Plaintiff also claims Defendant violated the TCPA by using an automated
telephone dialing system to contact him for the collection of the loans without his
consent. To the contrary, as Defendant correctly argues, Plaintiff, on numerous
occasions submitted letters to Defendant wherein he voluntarily provided his cell
phone number. Additionally, Plaintiff completed forbearance forms in which
Plaintiff agreed to the exact type of communications of which he now complains.
Significantly, the forbearance request was not contingent upon Plaintiff agreeing to
the automated system, yet Plaintiff specifically did so. Plaintiff is not now entitled
to seek damages for actions taken by Defendant to which he agreed. Summary
Judgment is therefore appropriate on Plaintiff’s TCPA claim.
Conclusion
Based upon the foregoing analysis, Plaintiff has failed to withstand the
challenge to his claims, and therefore, Defendant is entitled to judgment as a matter

of law.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment, (Doc. No. 31), is granted.
IT IS FURTHER ORDERED that all other pending motions are denied, as
moot.
A separate judgment is entered this same date.
Dated this 8th day of January, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE