Wagner v. RJM Acquisitions, LLC

Filing 46

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs Motion for Partial Summary Judgment (ECF No. 29 ) is DENIED. Plaintiffs Motion for Partial Summary Judgment on liability must be denied as well, as RJM may not be held liable should it ultimately prevail on its bona fide error defense. See 15 U.S.C. § 1692k(c). IT IS FURTHER ORDERED that Defendants Motion for Summary Judgment (ECF No. 31 ) is DENIED. Signed by District Judge Jean C. Hamilton on 2/19/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONNA WAGNER,

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Plaintiff,
v.
RJM ACQUISITIONS, LLC,
Defendant.

No. 4:13CV2466 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Partial Summary Judgment, filed
December 18, 2014, and Defendant’s Motion for Summary Judgment, filed December 19, 2014.
(ECF Nos. 29, 31). The motions are fully briefed and ready for disposition.
BACKGROUND
At some point in late 2011 or early 2012, Plaintiff Donna Wagner placed an order for
skin care cosmetics with the Meaningful Beauty Company, paying in full with her credit card.
(ECF No. 29-2, PP. 7-9). Meaningful Beauty then sent Plaintiff two additional shipments of
cosmetics that Plaintiff did not order. (Id., P. 8). Plaintiff marked the products “did not order,”
and returned them to Meaningful Beauty. (Id.).
On or about December 12, 2012, Defendant RJM Acquisitions, LLC (“RJM”), a debt
collector, became involved in this matter, when it purchased a Meaningful Beauty Skin Care
Products account opened in the name of Donna Wagner from Guthy-Renker LLC (“Guthy”).
(ECF No. 29-1, ¶ 5; ECF No. 38, ¶¶ 1, 2).

The address provided by Guthy was 1110

Schumacher Road, Fenton, MO, 63026, an address at which Plaintiff has resided for fifteen
years. (ECF No. 38, ¶¶ 3, 4).

On February 19, 2013, RJM sent a collection letter to Plaintiff at the Schumacher
address. (ECF No. 38, ¶ 5; ECF No. 29-5). When Plaintiff did not respond to the letter1, RJM
sent a second letter on September 4, 2013. (ECF No. 38, ¶¶ 6, 8; ECF No. 29-6). Plaintiff did
not respond to the September, 2013, letter either. (ECF No. 38, ¶ 9).2
In furtherance of its business RJM utilizes third-party vendors TransUnion and Experian,
skip trace services that provide address move updates. (ECF No. 38, ¶ 12). According to RJM,
the procedure is as follows: RJM inputs the information that it received from the creditor into
TransUnion and Experian; TransUnion and Experian electronically provide RJM with an
updated address, if one is found, and the name associated with the updated address; and RJM’s
database automatically is updated with the new information. (Id., ¶¶ 13, 14). If RJM receives a
new address and the “characteristics match,” it then sends a collection letter to the new address.
(Id., ¶ 15).
On or about September 21, 2013, through TransUnion and/or Experian, RJM obtained the
following address for Plaintiff: 1347 W. Lark Industrial Dr., Fenton, MO, 63026. (ECF No. 38,
¶ 16). RJM sent a collection letter to the Lark address on October 22, 2013. (Id., ¶ 17; ECF No.
29-3). As with the two prior letters, this letter was addressed solely to Plaintiff, and bore the
notation “Personal and Confidential” on the outside of the envelope. (ECF No. 38, ¶ 18).
According to Plaintiff, the Lark address is her father’s business address, and she has
never resided or worked at that address. (ECF No. 29-1, ¶¶ 8-10). Plaintiff’s father received the
letter at the Lark address, opened and read it, and thus learned about the alleged debt. (Id., ¶ 16).
Shortly thereafter, Plaintiff’s father visited Plaintiff’s home with the letter in hand, and asked if
Plaintiff was suffering financial difficulties. (Id., ¶ 17). Plaintiff maintains this encounter (and
1
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Plaintiff claims she never received the February 19, 2013, collection letter. (ECF No. 38, ¶ 7).
Again, Plaintiff claims she did not receive the September, 2013, letter. (ECF No. 38, ¶ 10).
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the fact that RJM had disclosed the debt to her father) caused her great embarrassment, anxiety
and stress. (Id., ¶ 18; ECF No. 2, ¶ 12).
On October 30, 2013, Plaintiff called RJM, and informed its representative that the Lark
address was one for her father’s place of employment. (ECF No. 38, ¶¶ 19, 21).3 Plaintiff
further informed the representative that she did not purchase the products that formed the basis
of the debt. (Id., ¶ 22). RJM notated its file that Plaintiff did not owe the debt, and ceased all
collection efforts at that time. (Id., ¶¶ 23, 24).
On or about November 6, 2013, Plaintiff filed her Petition for Damages (“Complaint”) in
the Circuit Court of Jefferson County, Missouri. (ECF No. 2).4 Plaintiff’s Complaint purports to
be “an action for statutory and actual damages brought by an individual consumer for violations
of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), which prohibits
debt collectors from engaging in abusive, deceptive and unfair practices.” (Id., ¶ 1).
As stated above, the parties filed competing Motions for Summary Judgment on
December 18, and 19, 2014. (ECF Nos. 29, 31).
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment 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 judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The substantive law determines which facts are critical and which are irrelevant. Only disputes
over facts that might affect the outcome will properly preclude summary judgment. Anderson v.
3

The parties agree this was the first and only time Plaintiff contacted RJM, and that RJM never
placed a phone call to Plaintiff. (ECF No. 38, ¶¶ 20, 25).
4
RJM removed Plaintiff’s Complaint to this Court on December 10, 2013, on the basis of federal
question jurisdiction. (ECF No. 1).
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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party
must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material
fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson,
477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its
pleadings. Anderson, 477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255. The Court’s function is not to weigh the evidence, but to determine
whether there is a genuine issue for trial. Id. at 249.
DISCUSSION
“The FDCPA was designed to protect consumers from the ‘abusive, deceptive and unfair
debt collection practices’ of debt collectors.”

Worch v. Wolpoff & Abramson, L.L.P., 477

F.Supp.2d 1015, 1018 (E.D. Mo. 2007), citing 15 U.S.C. § 1692 et seq. “In order to establish a
violation of the FDCPA, a plaintiff must demonstrate that 1) plaintiff has been the object of
collection activity arising from a consumer debt; 2) the defendant attempting to collect the debt
qualifies as a debt collector under the Act; and 3) the defendant has engaged in a prohibited act
or has failed to perform a requirement imposed by the FDCPA.” O’Connor v. Credit Protection
Ass’n LP, 2013 WL 5340927, at *6 (E.D. Mo. Sep. 23, 2013) (citations omitted); see also
McHugh v. Valarity, LLC, 2014 WL 6772469, at *2 (E.D. Mo. Dec. 1, 2014). In the instant case,
only the third element is at issue. Plaintiff avers RJM’s conduct of sending a collection letter to

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her father’s place of business, which he then opened, violated 15 U.S.C. § 1692c(b), which
provides in relevant part as follows:
[W]ithout 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.
On this basis Plaintiff moves for summary judgment as to liability, leaving only the question of
damages to be determined at trial. (See ECF No. 29).
In partial response to Plaintiff’s motion5 (and as the basis for its own Motion for
Summary Judgment), RJM asserts it may not be held liable because it is protected by the bona
fide error defense set forth in 15 U.S.C. § 1692k(c), as follows:
A debt collector may not be held liable in any action brought under this
subchapter if the debt collector shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona fide error notwithstanding
the maintenance of procedures reasonably adapted to avoid any such error.
(See ECF No. 35, PP. 5-8). Section 1692k(c) “serves as a complete defense and relieves
defendant of liability.” Rogers v. Medicredit, Inc., 2013 WL 2403661, at * 2 (E.D. Mo. May 31,
2013) (citations omitted). “To avail itself of this defense, [RJM] must show by a preponderance
of the evidence that: (1) the alleged violation was not intentional; (2) the alleged violation
resulted from a bona fide error; and (3) [RJM] maintained procedures reasonably adapted to
avoid any such error.” Id., citing 15 U.S.C. § 1692k(c). With respect to the first element, RJM
“must only show that the violation was unintentional, not that the communication itself was
unintentional.” Thomas v. Consumer Adjustment Co., Inc., 579 F.Supp.2d 1290, 1294 (E.D. Mo.

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RJM also maintains it did not violate the FDCPA in the first instance. (See ECF No. 35, PP. 35).
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2008) (citation omitted).
Here, RJM asserts the violation was unintentional, as it was unaware the Lark address
was anything other than Plaintiff’s place of residence until Plaintiff contacted RJM to dispute the
debt on October 30, 2013. (ECF No. 35, PP. 5-6). RJM further maintains the violation resulted
from a bona fide error, as it believed the debt was real and was entitled to rely on information
provided by the creditor in forming said belief, and that it had in place procedures reasonably
adapted to avoid the type of violation at issue here. (Id., PP. 6-8).
Upon consideration, the Court finds fact questions remain with respect to whether the
alleged violation was intentional, whether it resulted from a bona fide error, and whether RJM
had in place procedures reasonably adapted to avoid the alleged error at issue here. See Rogers,
2013 WL 2403661, at * 2; Worch, 477 F.Supp.2d at 1020. Under these circumstances, RJM’s
Motion for Summary Judgment must be denied.6
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial Summary Judgment
(ECF No. 29) is DENIED.

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Plaintiff’s Motion for Partial Summary Judgment on liability must be denied as well, as RJM
may not be held liable should it ultimately prevail on its bona fide error defense. See 15 U.S.C. §
1692k(c).
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IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (ECF
No. 31) is DENIED.

Dated this 19th Day of February, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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