Dodd v. Delta Outsource Group, Inc.
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Partial Summary Judgment (ECF No. 18) is DENIED. 18 Signed by District Judge Jean C. Hamilton on 8/25/16. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DELTA OUTSOURCE GROUP, INC.,
No. 4:15CV1744 JCH
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Partial Summary Judgment, filed
July 20, 2016. (ECF No. 18). The motion is fully briefed and ready for disposition.
Plaintiff Jeff Dodd, a resident of St. Charles County, Missouri, allegedly owes a debt
arising from an UMB Bank credit card account.
(Petition (hereinafter “Complaint” or
“Compl.”), ¶¶ 4, 5). Defendant Delta Outsource Group (“Delta”) is a Missouri corporation
engaged in the collection of debts from consumers using the mail and telephone. (Id., ¶¶ 6, 7).
Delta thus is a “debt collector” as defined by the Fair Debt Collections Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq. (Id., ¶¶ 1, 7).
Sometime in September, 2015, Plaintiff’s account with UMB Bank was placed with
Delta’s office for collection. (Compl., ¶ 9). On or about October 2, 2015, Delta called Plaintiff
at work and attempted a debt collection communication. (Id., ¶ 11; Plaintiff’s Statement of
Uncontroverted Material Facts (“Plaintiff’s Facts”), ¶ 1). According to Plaintiff, Delta failed to
disclose that it was a debt collector attempting to collect a debt during the October 2, 2015,
phone call. (Compl., ¶ 14; Plaintiff’s Facts, ¶ 2). Plaintiff maintains Delta again failed to
disclose that it was a debt collector during its second debt collection communication on October
7, 2015. (Compl., ¶ 15; Plaintiff’s Facts, ¶¶ 3, 4).
On or about October 16, 2015, Plaintiff filed his Complaint in the Circuit Court of St.
Charles County, Missouri. (ECF No. 4).1 Plaintiff’s Complaint purports to be “an action for
statutory damages brought by an individual consumer for violations of the Fair Debt Collections
Practices Act, 15 USC 1692 et Seq. (“FDCPA”), which prohibits debt collectors from engaging
in abusive, deceptive, and unfair practices.” (Id., ¶ 1). Specifically, Plaintiff maintains Delta
committed violations of the FDCPA including, but not limited to, communicating with a third
person in connection with the collection of a debt without the prior consent of the consumer, in
violation of 15 U.S.C. §§ 1692b(2), 1692c(b); failing to disclose in a collection communication
that the communication is from a debt collector in an attempt to collect a debt, in violation of 15
U.S.C. § 1692e(11); and contacting a consumer at his place of employment after having reason
to know that the employer prohibits such communication, in violation of 15 U.S.C. §
1692c(a)(3). (Id., ¶ 18).
As stated above, Plaintiff filed the instant Motion for Partial Summary Judgment on July
20, 2016, claiming he is entitled to judgment as a matter of law with respect to his claim arising
out of the two telephone calls in which Delta failed to disclose that it was a debt collector
attempting to collect a debt. (ECF No. 18).
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
Defendant removed Plaintiff’s Complaint to this Court on November 23, 2015, on the basis of
federal question jurisdiction. (ECF No. 1).
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.
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.
“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 Delta’s conduct of failing to disclose it was a
debt collector attempting to collect a debt during the two telephone calls it placed to Plaintiff
violated 15 U.S.C. § 1692e(11), which provides in relevant part as follows:
A debt collector may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt. Without limiting the general
application of the foregoing, the following conduct is a violation of this section:…
The failure to disclose in the initial written communication with the consumer
and, in addition, if the initial communication with the consumer is oral, in that
initial oral communication, that the debt collector is attempting to collect a debt
and that any information obtained will be used for that purpose, and the failure to
disclose in subsequent communications that the communication is from a debt
As support for his motion, Plaintiff provides recordings of the two collection calls between
Plaintiff and Delta.
On this basis Plaintiff moves for summary judgment as to liability,
maintaining that because the FDCPA is a strict liability statute, Delta’s failure to identify itself as
a debt collector necessarily constitutes a violation of § 1692e(11). (Plaintiff’s Memorandum in
Support of Motion for Partial Summary Judgment, PP. 3-4).
In response to Plaintiff’s motion, Delta asserts it may not be held liable because Plaintiff
interrupted the representative from Delta in both phone calls, thereby preventing him from
making the required disclosures. (Defendant’s Memorandum of Law in Opposition to Plaintiff’s
Motion for Partial Summary Judgment, PP. 3-5). Delta posits that at the very least, Plaintiff’s
actions during the calls and admissions during his deposition create a genuine issue of material
fact as to whether Delta violated the FDCPA in its communications with him. (Id.).
Upon consideration, the Court agrees that a question of fact remains as to whether Delta
violated the FDCPA with its telephone communications. In other words, the Court agrees with
the reasoning of the Court in Lauer v. Credit Control Services, in which the District Court for the
District of Utah held that the FDCPA does not entitle a plaintiff “to disrupt a collection call,
prevent the debt collector from making the required identifications and disclosures, end the call,
and through his own actions create a violation of the FDCPA on the part of the debt collector.”
Lauer, 2015 WL 5824941, at *6 (D. Utah Oct. 6, 2015). See also Id. (quoting 15 U.S.C. §
1692e(11) (emphasis added)) (“The FDCPA penalizes ‘the failure to disclose in subsequent
communications that the communication is from a debt collector,’ but it does not reward a
debtor’s actions to prevent that disclosure.”). It remains for the finder of fact to determine
whether Plaintiff’s actions here prevented Delta from making the required disclosures, and thus
created the alleged violation. Plaintiff’s Motion for Partial Summary Judgment will therefore be
IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial Summary Judgment
(ECF No. 18) is DENIED.
Dated this 25th Day of August, 2016.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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