Istre v. MiraMed Recovery Group, LLC et al

Filing 43

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of plaintiff Jason Istre for partial summary judgment of liability on the § 1692c(a) claim (Doc. 22) is sustained. IT IS FURTHER ORDERED that the cross-motion of defendant MRG for summary judgment (Doc. 25) is denied. Signed by Magistrate Judge David D. Noce on 3/9/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JASON ISTRE,
Plaintiff,
v.
MIRAMED REVENUE GROUP, LLC.,
Defendant.

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No. 4:14 CV 1380 DDN

MEMORANDUM AND ORDER
This action is before the court on the motions of plaintiff Jason Istre and defendant
Miramed Revenue Group, LLC (MRG) for summary judgment. (Docs. 22, 25.) The court
heard oral argument on February 9, 2014.
On July 3, 2014, plaintiff Jason Istre commenced this action in the Circuit Court of
Jefferson County, Missouri. Defendants removed this action to this court pursuant to 28
U.S.C. § 1441 for federal question jurisdiction. The Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq., upon which plaintiff's claims are based, grants
this court subject matter jurisdiction without regard to the amount in controversy. 15
U.S.C. § 1692k(d). Plaintiff alleges two claims for relief against defendant Miramed
Revenue Group (MRG): (1) MRG, a debt collector, attempted to collect a debt from
debtor plaintiff, after its agent knew plaintiff was represented by counsel, in violation of
FDCPA § 1692c(a)(2); and (2) MRG's agent used harassing, oppressive, abusive, and
unconscionable language in its attempt to collect the debt, in violation of FDCPA §§
1692d and 1692f.
Plaintiff seeks partial summary judgment that MRG is liable on his § 1692c(2)(a)
claim. MRG cross-moves for summary judgment on both of plaintiff's claims. Courts
must grant summary judgment when the pleadings and evidence demonstrate that no

genuine issue of material fact exists and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1052 (8th Cir. 2011) (en banc). A fact is
“material” if it could affect the ultimate disposition of the case, and a factual dispute is
“genuine” if there is substantial evidence to support a reasonable jury verdict in favor of
the nonmoving party. Rademacher v. HBE Corp., 645 F.3d 1005, 1010 (8th Cir. 2011).
The court must view the evidence in the light most favorable to the nonmoving party and
accord it the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378
(2007).

UNDISPUTED RECORD
The material facts are without genuine dispute. Defendant MRG is a debt collector
regulated by the FDCPA. Plaintiff is an individual consumer who incurred the debt at
issue for medical services received. MRG sent plaintiff a collection letter in December
2013 identifying itself as a debt collector seeking to collect the debt at issue in this case.
In June 2014, plaintiff hired a lawyer, C. Scott Brinkman, to represent him on this and
other debts. Sometime after that, plaintiff hired Richard Voytas, Esq., his current counsel
of record.
On whether or not defendant violated the Act, the undisputed material facts
involve a recorded telephone conversation in which plaintiff and MRG's agent
participated in June 2014. Plaintiff initiated the call to MRG from his lawyer’s office,
with counsel present. Both parties have, without objection, submitted audio recordings of
this conversation. The court has listened to both recordings which indicate the following:
[The recording begins with the MRG agent asking for plaintiff's debt identification
information and plaintiff providing it. Then the MRG agent states:
MRG:

Let me just keep you informed that all calls may be recorded
for quality . . . training purposes. This is an attempt to
collect the debt and any information obtained will be used for
that purpose. So, how can I help you today, sir?

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Istre:

I have about a -- I’m getting letters from ya’ll and I got about
twenty collectors all coming after me. I’m realistically not
going to be able to pay everyone what they want.

MRG:

OK.

Istre:

What happens if I just can’t pay? Do ya’ll garnish my wages?

MRG:

No, sir. We do not do that. We don’t garnish your wages. We
just notate the information and inform my client that you’re
unable to pay. But if you’re willing to take care of the bill, we
can give you a settlement on the bill and have it closed out.
We can offer you a discount, which you can afford to pay and
that would close out the collection and remove your name
from some of those notices.

Istre:

I can’t pay.

MRG:

All right. You wouldn’t be able to make small payments
either?

Istre:

No, sir.

MRG:

All right. So you’re unemployed?

Istre:

Yes, sir.

MRG:

You're unemployed?

Istre:

Yes, sir.

MRG:

All right. So, how long have you been unemployed, sir?

Istre:

Uhhh, I hired a lawyer to advise me on this debt.

MRG:

OK. All right, why do you have a lawyer involved in this
who helps you out? Is it some kind of debt [unintelligible]
program?

Istre:

He's advising me on my debt.

MRG:

So, how you going to go about this bill, sir?

Istre:

I don’t know.

MRG:

All right, sir. The bill is still outstanding. It is still about
4,266 dollars. You wouldn’t be able to make small payments
either?

Istre:

No, sir.

MRG:

Correct. So, we'll make a note of it, sir.
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Istre:

OK. You want my lawyer’s information?

MRG:

OK. Why you have an attorney? Are you filing for
bankruptcy something or was this in regards to . . . ?

Istre:

Ah, I don't know. I have twenty collectors coming at me. I
need advice. I have my lawyer to give me advice on all my
debt.

MRG:

All right. Just give me a minute. [Pause] All right. Can I
have your attorney's name?

Istre:

Yes, sir. It is Scott Brinkman. B-R- . . . . [unintelligible].

MRG:

You said his name is?

Istre:

His name is Scott Brinkman, B-R-I-N-K-M-A-N.

MRG:

I am sorry, sir. Your voice is breaking up. Can you spell that
out once again for me, please?

Istre:

B-R-I-N-K-M-A-N.

MRG:

All right. Brinkman, right?

Istre:

Yes, sir.

MRG:

All right. And the telephone number would be . . . ?

Istre:

[States phone number.]

MRG:

All right, sir. We'll contact your attorney, OK?

Istre:

All right. Thanks.

MRG:

Thank you. Bye.

[End of phone call.]

DISCUSSION
Plaintiff argues the MRG agent violated 15 U.S.C. §1692c(a)(2) by the words he
spoke after he was made aware that plaintiff was represented by legal counsel. MRG
argues that, because plaintiff’s attorney was present with plaintiff during this phone
conversation, plaintiff and his attorney consented to the MRG agent's continuing the
conversation as he did. Therefore, MRG argues that plaintiff's § 1692c(a)(2) claim lacks
the essential element that plaintiff and his attorney did not consent to the MRG agent's
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continued statements, after he learned of plaintiff's hiring a lawyer. Plaintiff counters that
MRG's consent defense is without merit, because the court previously concluded consent
was not at issue when it denied defendant’s motion to dismiss. Alternatively, plaintiff
argues that consent is an affirmative defense and that defendant waived it by failing to
sufficiently allege it in defendant’s answer.
Defendant cross-moves for summary judgment on plaintiff's second claim under
§§ 1692d and 1692f. Defendant argues that, because it did not violate § 1692c(a)(2), none
of the statements MRG's agent made during the June 2014 phone conversation was
“harassing, oppressive, or abusive” or an “unfair or unconscionable means to collect or
attempt to collect a debt,” as required by §§ 1692d and 1692f.

15 U.S.C. § 1692c(a)(2)
The FDCPA is generally concerned with the activities of debt collectors. 15
U.S.C. § 1692; McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 913 (8th Cir. 2014).
The FDCPA is a strict liability statute and a consumer need not show intent, only that a
violation occurred. Campbell v. Credit Prot. Ass’n., L.P., No. 4:12 CV 00289 AFG, 2013
WL 1282348, at *4 (E.D. Mo. 2013). By using an unsophisticated consumer standard, the
FDCPA protects all consumers. Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055
(8th Cir. 2002).
To establish a violation of the FDCPA a plaintiff must allege and prove: (1) the
plaintiff is a consumer; (2) the defendant is a debt collector; and (3) the defendant has
violated a provision of the FDCPA. Campbell, 2013 WL 1282348, at *4; Pace v.
Portfolio Recovery Assocs., LLC, 872 F. Supp. 2d 861, 864 (W.D. Mo. 2012). Only
element (3) is at issue here.
For element (3) plaintiff alleges defendant violated FDCPA § 1692c(a)(2), which
provides:
(a) Communication with the consumer generally.
Without the prior consent of the consumer given directly to the debt
collector or the express permission of a court of competent jurisdiction,
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a debt collector may not communicate with a consumer in connection
with the collection of any debt-***
(2) if the debt collector knows the consumer is represented by an
attorney with respect to such debt and has knowledge of, or can readily
ascertain such attorney’s name and address, unless the attorney fails to
respond within a reasonable period of time to a communication from the
debt collector or unless the attorney consents to direct communication
with the consumer; . . .
15 U.S.C. § 1692c(a).
In the factual circumstances of this case, the court need not decide whether
plaintiff or defendant has the burden of pleading and proving whether or not plaintiff
and/or his counsel consented to what MRG's agent is alleged to have done to violate the
Act.1 This is because the undisputed material facts establish that no consent by plaintiff
or his counsel occurred. The clear language of § 1692c(a) indicates that the required
consent must occur before the alleged violation occurred ("prior consent") and be express
-- not merely implied ("given directly to the debt collector"). Nothing in the record
indicates that the MRG agent knew or learned that plaintiff's counsel was listening to the
phone conversation before being advised by plaintiff that plaintiff was represented by
legal counsel on the debt.
The court disagrees with plaintiff's argument that the court's prior ruling took the
issue of consent out of the case. Rather, on defendants' earlier motion to dismiss for
failure to state a claim, the court ruled,
The court agrees with plaintiff that the mere fact [plaintiff] initiated the
phone call is not conclusive that he thereby consented to the debt collector
saying to plaintiff what plaintiff alleges. Without that consent by plaintiff,
once notified that he has legal representation, [defendant] may only ask for
the attorney's contact information before ending the call.

1
 There is authority that plaintiff bears the burden on this issue. See Montgomery v.

Shermeta, Adams & Von Allmen, P.C., 885 F. Supp. 2d 849, 854-55 (W.D. Mich. 2012);
Wright v. Ocwen Loan Serv., LLC, No. 12-14762, 2013 WL 5532687, at *6 (E.D. Mich.
Oct. 7, 2013).

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(Doc. 20 at 4.) That ruling did not take consent out of the case, but merely indicated that
plaintiff's allegations did not establish consent which, defendant argued and still argues,
bars plaintiff's § 1692c(a) claim.
Defendant's cross-motion for summary judgment defendant must be denied. The
court concludes by the requirements that any consent by plaintiff or his counsel to what
MRG's agent said must be expressed to defendant or its agent before the agent otherwise
violated the Act. No such expression of consent occurred.
Plaintiff's motion for partial summary judgment of liability on plaintiff's §
1692c(a) claim is sustained. Defendant's cross-motion for summary judgment on
plaintiff's § 1692c(a) claim is denied.

15 U.S.C. §§ 1692d and 1692f
The court has found that defendant violated § 1692c(a)(2). Plaintiff also alleges
defendant MRG is liable under §§ 1692d and 1692f which provide:
A debt collector may not engage in any conduct the natural consequence of
which is to harass, oppress, or abuse any person in connection with the
collection of a debt.
15 U.S.C. § 1692d.
A debt collector may not use unfair or unconscionable means to collect or
attempt to collect any debt.
15 U.S.C. § 1692f.
As stated in this court’s earlier ruling on the motion to dismiss, whether or not a
practice is harassing, abusive, false, misleading, or unfair is viewed from the eyes of the
unsophisticated consumer. Peters, 277 F.3d at 1055. Furthermore, such allegations are
highly fact intensive and are normally questions for the trier of fact at trial. Pratt v.
CMRE Fin. Servs., Inc., No. 4:10 CV 2332 CEJ, 2011 WL 1212221, at *2 (E.D. Mo.
Mar. 30, 2011) ; see also Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir.
1985).

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There is a genuine issue of fact as to how an unsophisticated consumer would
view the language of defendant’s agent after learning plaintiff retained an attorney on the
debt. Therefore, defendant’s cross-motion for summary judgment regarding §§ 1692d and
1692f is denied (Doc. 25).
For the reasons stated above,
IT IS HEREBY ORDERED that the motion of plaintiff Jason Istre for partial
summary judgment of liability on the § 1692c(a) claim (Doc. 22) is sustained.
IT IS FURTHER ORDERED that the cross-motion of defendant MRG for
summary judgment (Doc. 25) is denied.

/S/ David D. Noce
u
UNITED STATES MAGISTRATE JUDGE
Signed on March 9, 2015.

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