Curtis v. Financial Recovery Services, Inc.
OPINION,MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the motion of Plaintiff for summary judgment, [Doc. No. 5 ] is denied.IT IS FURTHER ORDERED that the cross-motion of defendant for summary judgment [Doc. No. 11 ) is denied. Signed by District Judge Henry Edward Autrey on 03/23/2016. (CLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FINANCIAL RECOVERY SERVICES.,
No. 4:15CV1018 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Cross Motions for Summary Judgment,
[Doc. No.’s 5 and 11]. For the reasons set forth below, the motions are denied.
Facts and Background
On June 1, 2014, Plaintiff commenced this action in the Circuit Court of the
City of St. Louis, 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 one claims for relief
against Defendant: (1) Defendant, 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) Defendant’s agent used oppressive,
deceptive and unfair collection tactics in its attempt to induce Plaintiff to forego her
attorney representation collect the debt, in violation of FDCPA §§ 1692d and 1692f.
Plaintiff seeks summary judgment that Defendant is liable on her claims.
Defendant cross-moves for summary judgment on both of Plaintiff's claims.
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.
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 (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 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. AThe 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)); A>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 Aa reasonable jury could return a verdict for the
nonmoving party@ on the question. Anderson, 477 U.S. at 248; Woods, 409 F.3d at
To survive a motion for summary judgment, the Anonmoving 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 his or her favor. Wilson v. Int=l Bus. Mach. Corp., 62 F.3d 237,
241 (8th Cir.1995). AThe 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). AMere allegations, unsupported by 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). ASimply 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).
Congress enacted the FDCPA Ato 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 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 Acease 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).
The material facts are without genuine dispute. Defendant is a debt collector
regulated by the FDCPA. Plaintiff is an individual consumer who incurred the credit
card debt at issue. On April 14, 2015.Defendant sent Plaintiff a collection letter
identifying itself as a debt collector seeking to collect the debt at issue in this case.
Shortly after the letter, Plaintiff hired a lawyer, to represent her on this and other
On whether or not defendant violated the Act, the undisputed material facts
involve a recorded telephone conversation in which Plaintiff and Defendant’s agent
participated in May 2015. Plaintiff initiated the call to Defendant.
The transcript of the recording is set out in the record:
Defendant: This call is recorded. This is Lane Taylor, how can I help you?
Plaintiff: Hi. I was calling in regards to a letter I received.
Defendant: Okay, your name?
Plaintiff: Paulette Curtis.
Defendant: Okay, Paulette. Last four digits of your Social [redacted]?
Defendant: Okay. This is Lane Taylor at FRS. This is a communication
with a debt collector attempting to collect on a debt. Any information
obtained is used for that purpose. Looks like you got a letter in regards to
the LVNV Funding Credit One Bank file that was placed in our pre-legal
department. Balance is $1,284.96. How can I help you out today?
Plaintiff: Well, I was calling because I’m not sure I can take care of this
balance. So, I wanted to let you know I’ve hired a lawyer to help me on this
Defendant: Okay. And that attorney’s name?
Plaintiff: The attorney’s name?
Plaintiff: Scott Brinkman.
Plaintiff: Brinkman, yes ma’am.
Defendant: Okay. Alrighty, so there’s no payment plan or anything you
wanted to work out with us; you wanted to just go the route with an
Defendant: Okay. Do you have a phone number for this –
Plaintiff:– I do, its –
Defendant: – for Scott?
Defendant: Okay, Scott [sic] Breckman, 314-932-1067.
Plaintiff: Yes, but the last name is Brinkman.
Defendant: Like B-r-e-c-k?
Plaintiff: B-r-i n as in Nancy, k as in Kangaroo, Brinkman.
Defendant: Okay, perfect, Brinkman. Alright, perfect. Thanks for calling to
let us know, Paulette.
Plaintiff: Thank you.
Plaintiff argues the 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.
Defendant argues that it is clear that the statement was merely a confirmation of
Plaintiff’s statement that she was represented by an attorney and that the statement
was clearly not an effort to continue collection efforts. Defendant also argues that it
is entitled to the bona fide error defense.
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),
(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, a debt collector
may not communicate with a consumer in connection with the collection of
(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 motions for summary judgment
by Defendant and by Plaintiff must be denied. Plaintiff’s interpretation of the
conversation is that Defendant attempted to collect the debt and failed to abide by
the Act by saying nothing after Plaintiff advised it that she was represented.
Defendant’s interpretation of the conversation is that Defendant’s agent was merely
confirming that she was represented by counsel and was not an attempt to collect the
debt. Clearly, there is a genuine dispute 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, the cross-motions for summary
judgment are denied.
For the reasons stated above,
IT IS HEREBY ORDERED that the motion of Plaintiff for summary
judgment, [Doc. No. 5] is denied.
IT IS FURTHER ORDERED that the cross-motion of defendant for
summary judgment [Doc. No. 11) is denied.
Dated this 23rd day of March, 2016.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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