BRANNIGAN v. HARRISON
Filing
44
OPINION. Signed by Judge John Michael Vazquez on 4/24/18. (sr, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD BRANNIGAN,
Plaintiff
Civil Action No. 15-2991
V.
OPINION
MICHAEL HARRISON,
ATTORNEYATLAW
Defendant.
John Michael Vazguez, U.S.D.J.
This case arises from Defendant Michael Harrison’s (‘Defendant” or “Harrison”) attempts
to collect payment for a medical debt from Plaintiff Richard Brannigan (“Plaintiff’ or
“Brannigan”). Plaintiff alleges that, in attempting to collect payment, Defendant violated the Fair
Debt Collection Practices Act, 15 U.S.C.
§ 1692 etseq. (“FDCPA”). Both parties have moved for
summary judgment pursuant to Federal Rule of Civil Procedure 56. D.E. 35, 36. The Court
reviewed all submissions made in support and in opposition to the motions,1 and considered the
In this Opinion, Plaintiffs Amended Complaint (D.E. 30) will be referred to as “Am. Compl.”
Plaintiffs brief in support of her motion for summary judgment (D.E. 36) will be referred to as
“P1. Brf.” Defendant’s brief in opposition (D.E. 39) will be referred to as “Def Opp.” Plaintiffs
reply brief(D.E. 42) will be referred to as “P1. Rep.” Defendant’s brief in support of his motion
for summary judgment (D.E. 35) will be referred to as “Def. Brf.” Plaintiffs brief in opposition
(D.E. 38) will be referred to as “P1. Opp.” Defendant’s reply brief(D.E. 41) will be referred to
as “Def. Rep.”
motions without oral argument pursuant to L. Civ. R. 78.1(b). For the reasons stated below,
Defendant’s motion for summary judgment is GRANTED in part and Plaintiffs motion for
summary judgment is DENIED.
I.
FACTS AND PROCEDURAL HISTORY
A. FACTUAL BACKGROUND
On June 4, 2013, New Century Imaging LLC (“Nd”), an outpatient radiology facility in
New Jersey, performed a Magnetic Resonate Imaging (“MRI”) on Plaintiff. P1. Brf., Plaintiffs
Statement of Undisputed Material Facts (“P1. SOMF”)
¶ 2; D.E.
36-4. After receiving this MRI,
Plaintiffs insurance company denied coverage. Def. Brf., Defendant’s Statement of Undisputed
Material F acts (“Def. SOMF”) ¶ 6; D.E. 35-1. NCI then retained Defendant Michael Harrison, an
attorney whose law firm’s business is largely the collection of medical debts. P1. $OMF
¶ 3-4.
NCI asked Defendant to attempt to collect $1,175 from Plaintiff for the MRI and to consider filing
a law suit to effectuate that collection. Def. SOMF
¶ 7.
Defendant claims to have first attempted to collect the debt by mailing Plaintiff multiple
letters. On February 10, 2014, Defendant sent Plaintiff a letter, indicating the amount due for the
MRI and informing Plaintiff that NCI had referred the outstanding bill to Defendant’s law firm for
collection. Def. $OMF
¶ 8.
After receiving no response, Defendant mailed additional letters on
March 18,2014;Aprll2l,2014;April3O,2014;June 1,2014;andJulyl3,2014. Id. ¶10. These
letters all purportedly informed Plaintiff that Defendant was a debt collector and that he was
attempting to collect a debt from Plaintiff. Id. Plaintiff never responded; he indicates that does
not recall receiving these letters. Id.
to illness. Id.
¶
¶ 10 fn. 3.
Plaintiff sometimes suffers from memory loss due
5. Defendant, on behalf of NCI, then filed suit against Plaintiff in New Jersey
Superior Court on January 9, 2015. P1. SOMF
¶ 5.
2
The January 21, 2015 Phone Call
On January 21, 2015, Plaintiff called Defendant’s law firm. P1. SOMF
¶
6. Before
speaking with anyone, Plaintiff heard the following recording: ‘Thank you for calling the Law
Office of Michael Harrison. Our office may be attempting to collect a debt. Any information
obtained may be used for that purpose. This call may be monitored. Please remain on the line and
a representative will be with you shortly.” Def. SOMF
¶
13. Joy Peloso,2 a non-attorney who
manages Defendant’s legal department, answered Plaintiffs call. P1. SOMF
¶
13; Def SOMF
¶
14. After verifying Plaintiffs identity, Peloso described the debt owed to NCI, including the
referring physician and the insurance company that had been billed. Def. SOMF
¶
15. When
Plaintiff stated that he did not understand why his insurance denied coverage, Peloso called NCI’s
billing office and ascertained that “the reason for the denial was benefit maximum for the time
period ha[d] been reached.” P1. Brf., Declaration of Lawrence Hersh, Ex. A, Transcript of
Recorded Phone Calls (“Phone Transcript”) at 6 ln. 22-23; D.E. 36-3.
The following conversation then ensued:
Brannigan: That’s ridiculous. Yeah, I don’t remember any of it.
Because like you said, I’ve had so many MRI’s.
Peloso: Yeah. I mean, if you want to call Blue[the insurance
company], you can certainly call Blue and fight it out with them if
you think it was denied improperly. You know, I can give you—
Brannigan: I don’t have the strength.
strength anymore to fight.
Really, I don’t have the
2
The parties’ moving papers spell the agent’s name as Joy “Peloso,” while the deposition
testimony reflects it as Joy “Puloso.” The Court will use the parties’ spelling.
Defendant agrees that the court reporter obtained by Plaintiff to transcribe the recorded phone
call accurately transcribed the calls, with one minor typographical error on page 18, ln 18. Def.
Opp.; Defendant’s Response to Plaintiffs Statement of Undisputed Material Facts; D.E. 39-1.
3
Peloso: I’m sorry. Well, the only thing I can do at this point is try
and work this out with you. You know, obviously, my client wants
to get paid for what they did. So I don’t know, you know—
Brannigan: Well, I don’t—is it the client or is it the collection
agency?
Peloso: No, it’s the client. We represent New Century.
payment that comes in goes to New Century
Any
Brannigan: Right. Because I actually told {NCI’s billing office]—
that I said I would pay them, if I owe. You know, I need proof that
I owe, because like I said I’ve had so many MRI’s.
Peloso: Yeah.
Brannigan: I said I would pay them. They said they won’t—no
longer accept money.
Peloso: No, they won’t because they’re no longer handling the
account. We are. So because the account has basically been turned
over to Michael Harrison now for collection, payment comes here.
Id. at 7 ln. 3-18 & 8 ln. 9-19. Peloso also offered to attempt to obtain for Plaintiff an explanation
of benefits regarding the coverage denial. Peloso added that if Plaintiff sent payment to Harrison’s
law firm, the money would go to NCI. Id. at 9 ln. 4-8.
Plaintiff and Peloso then began discussing the settlement of the debt owed:
Plaintiff: And what can we do as far as lowering the payment
because I don’t have that kind of money.
Peloso: Right.
Brannigan: I’m on Medicaid and everything else.
Brannigan: Living at home. I have no assets, so suing me would be
basically pointless.
Peloso: Right. Well, the suit is there. That’s happened, but
—
Brannigan: Right, I know, but I can answer it and fight it and I don’t
want to go through all of that. I would prefer
—
4
Peloso: Right.
Brannigan: —you know, if it is a legitimate claim, then—
Peloso: Yeah. It was done. I mean, do you know what I mean? But
this is what I need. I need from you an offer to settle this.
Id. at 9 in. 9-14, 20-25 & 10 in. 1-7. In response, Plaintiff indicated that he would pay $500 that
day to settle the debt. Peloso promised to relay that offer. Id. at 9 in. 19-21.
However, rather than the phone call ending, the following colloquy took place:
Brannigan: I mean, I don’t have to write an answer to the Court, but
if I have to, I will.
Peloso: Well, I’m going to tell you what’s going to happen if you do
that.
Brannigan: Sure.
Peioso: Because I go through this like day in and day out.
Brannigan: Right.
Peloso: First of all, it’s going to cost you $30 to do that.
Braimigan: Right.
Peloso: Then the Court is going to put it down for trial, because
that’s automatic. You file an answer, we get a trial. Then, this
office, in response to your answer, which is going to be I had
insurance or whatever, we’re going to respond with a motion which
basically sets forth our reasons why you owe money.
Brannigan: Right.
Peloso: Service was rendered. Claim went to Blue. They denied.
And I think we can all see where this is going to go. So I don’t even
want to see you—I’d rather you pay my client then send $30 to the
Court. Your number is [redacted].
Brannigan: Correct.
Peloso: I’m now going to call my client.
5
Brannigan: Right.
Id. at 11 in. 9-25 & 12 in. 1-9. Peloso informed Plaintiff that he would hear from her within the
next few days regarding NCI’s response to his settlement offer. Def. SOMF
¶ 25.
The January 29, 2015 Phone Calls4
During these two unrecorded calls, Peioso informed Plaintiff that NCI would accept $700
for settlement of the $1,175 debt, paid in two to three installments. Def. SOMF
¶ 27.
Plaintiff
responded by telling Peloso that he was not feeling well and would call her back. Id. Later that
day, Plaintiff called Defendant’s law firm, listened to the recorded disclosure, and then spoke with
Peloso. Id.
¶J 27-28.
Plaintiff countered with $600 in a single payment. Id.
¶ 27.
The February 4, 2015 Voicemail
Peloso conveyed Plaintiffs counteroffer to NCI.
She then left Plaintiff the following
voicemail:
This message is for Richard. This is Joy [Peloso] from Attorney
Michael Harrison calling you regarding New Century Imagine.
Please call me at 973-361-9271. Thank you.
Phone Transcript at 14 in. 1-4.
The February 6, 2015 Phone Call
Two days later, Plaintiff called Defendant’s law firm and again listened to the recorded
disclosure. Another agent of Defendant’s law firm, Michael Steinberg, answered. Def SOMF
¶
39. Plaintiff asked to speak with Peloso:
Brannigan: Hi, Mike. Can I speak with Joy?
Steinberg: Sure. May I ask who is calling?
Brannigan: This is Richard Brannigan.
Plaintiff has no knowledge of the facts concerning the January 29, 2015 calls. P1. Opp.,
Plaintiffs Response to Defendant’s Statement of Undisputed Material Facts ¶J 26-28; D.E. 3$-i.
6
Steinberg: Okay. Will she know what it’s regarding?
Brannigan: Yeah.
Steinberg: Hold on one minute.
Id. at 15 ln. 8-14.
Peloso picked up the call and informed Plaintiff that NCI accepted his offer of $600 made
in a single payment. Plaintiff then asked if NCI had proof that he agreed to pay for the MRI.
Specifically, Plaintiff wanted to know if there was an existing contract since he could not
remember having the MRI done. When Peloso said she had no contract to send to Plaintiff,
Plaintiff responded that it was okay. Peloso told Plaintiff to call her if he had any concerns. See
Id. at 15-17.
The February 10, 2015 Phone Call5
During this unrecorded call, Plaintiff called Defendant’s law firm, listened to the recoded
disclosure, and then spoke with Peloso. Def SOMG.
¶J 36-3 8. Plaintiff informed Peloso that he
would pay the $600 via a check through Defendant’s website. Id.
The February 12, 2015 Phone Call
On February 12, 2015, Plaintiff called Defendant’s law firm, listened to the recorded
disclosure, and then spoke with Steinberg. Def. SOMF
¶ 39. The following conversation then
occurred:
Steinberg: This is Mike. May I help you?
Brannigan: Hi, Mike. This is Richard Brannigan. I paid my bill last
night. I was just wondering when the case will be dismissed.
Steinberg: Do you have a docket number?
Plaintiff has no knowledge of the facts concerning the February 10, 2015 call. P1. Opp.,
Plaintiffs Response to Defendant’s Statement of Undisputed Material Facts ¶11 36-38; D.E. 38-1.
7
Brannigan: No, I don’t. Wait.
Steinberg: Or account number.
Brannigan: Account number, yes, I do have the account number. It
is NCP500012617.
Steinberg: You paid it online?
Brannigan: Yes.
Steinberg: Okay. As soon as the payment is applied then we send a
letter to the Court dismissing the case and you get a copy in the mail.
Brannigan: How long does that usually take?
Steinberg: I don’t do—I don’t process the online payments so I don’t
have, like, an exact answer. But I would say probably within a week.
Brannigan: All right. Because I have to submit a letter by the 23rd,
so it would have to be done by then.
Steinberg: No, you don’t have to send a letter to the Court. That’s
only if you wish to schedule a trial date. So you don’t have to submit
a response because we’re not going to Court.
Brannigan: Okay. All right. Thank you very much, Mike.
Steinberg: Sure. No problem.
Brannigan: Have a good day.
Steinberg: You too.
Phone Transcript at 14 ln. 1-4.
The February 18, 2015 Phone Call
The final phone call between Plaintiff and Defendant’s law finn took place on February
18, 2015.6 Def. SOMF
¶
44. Plaintiff called Defendant’s law finn, listened to the recorded
6
Defendant states that this phone call took place sometime between February 15-19th, 2018.
Def. SOMF. ¶ 44. Plaintiff supplies, and Defendant does not contest, that the phone call took
8
disclosure, and then spoke with Steinberg about the pending state court case. Id.
¶J 44-45.
Plaintiff
and Steinberg, in relevant part, discussed the following:
Bramiigan: All right. I called the Court. They said my case still
wasn’t dismissed. Do you have information on that?
Steinberg: What’s your docket number?
Brannigan: It’s DC-000169-15.
(Pause)
Steinberg: Okay. For New Century Imaging?
Brannigan: Right.
Steinberg: You made the payment online.
Brannigan: Correct.
Steinberg: Okay, It was just applied to your account this past Friday.
So that’s why it hasn’t been dismissed yet. But I’ll go ahead and
adjust off the remaining balance because it was a settlement for the
$600.
Brannigan: Correct.
Steinberg: And we’ll get the letter filed with the Court and you’ii
receive a copy by mail.
Brannigan: Okay, because it only has until Monday. So I’m going
to have to file—I’m sorry.
Steinberg: No, no, no. You—Monday is only what is for filing a
Court date. You’ve paid the settlement, so you don’t need to file a
response because there’s no need to go to Court. So if you do that,
all you’re doing is wasting more money on your part because there’s
no further action being taken on our end because you paid the
balance.
Brannigan: Right, but I don’t know that. That’s the problem. So if
it’s not dismissed by then—I’m sorry?
place on February 18, 2015. P1. SOMF ¶ 11. Regardless, the exact date makes no difference to
the outcome in this case.
9
Steinberg: If you file—I mean, you can certainly go ahead and do
that, but I’m just telling you right now, it’s a complete waste of your
time and money because all we’ll be doing is sending a letter to the
Court saying that we had a settlement that you already paid and to
cancel the trial date. So you would actually elongate the process of
dismissing the case. But it’s entirely up to you, whatever you feel
is necessary and I’ll make a note on the account.
Brannigan: Okay. Do you think it will get there anytime soon? I
mean, if it was applied Friday, it should probably be there pretty
soon, right? The letter?
Steinberg: I’m not even sure—no, normally Mr. Harrison has an
office policy that we have to wait a 30 day period and stay the legal
action upon receipt of a settlement payment if it’s not in the form of
a bank check or money order. I’ll ask him if I can dismiss it sooner.
And he may let me, that’s certainly fine. I just have to get his
authorization first.
Brannigan: Okay. All right. Thank you very much.
Steinberg: Sure, no problem.
Phone Transcript at 20 ln. 11-25; pg. 21 in 1-25; pg. 22 ln. 1-9.
The Parties’ Actions Following these Conversations
On february 19, 2015, Defendant submitted a letter to the state court, asking the court to
dismiss the matter “as the bill has been paid in full.” Def. Brf., Ex. J; D.E. 35-12. The parties
dispute what occurred next. Defendant claims that the state court informed him that Plaintiff had
filed an answer to Defendant’s complaint and, therefore, the parties now needed to file a jointly
signed stipulation of dismissal. Def. SOMF
¶ 52. Defendant alleges that this caused a delay in
the dismissal of the lawsuit until sometime afier March 31, 2015. Id. Plaintiff disagrees. P1. Opp.,
10
Plaintiffs Response to Defendant’s Statement of Undisputed Material Facts
¶
52; D.E. 38-1.
Plaintiff does not allege that he ever filed an Answer.7
Defendant Harrison’s Work Policies and Procedures
Defendant provides his employees, including Peloso and Steinberg, with a copy of written
out policies and procedures on a yearly basis. Def. SOMF
¶ 54.
Defendant’s written policies, in
relevant part, include: (1) generally providing information to the debtor or his spouse only after
verifying his identity; (2) a script for any voicemail left by employees, which includes that that the
call is from a debt collector for the purpose of collecting a debt; (3) requiring employees, at the
beginning of any phone call they initiate, to always identify themselves as a debt collector
attempting to collect a debt; (4) always being polite and calm on the phone; (5) never misleading
or saying anything untrue to the debtor; (6) never telling the debtor how to respond to Defendant’s
law firm’s actions; and (7) only offering a debtor a settlement if the amount has been approved by
the client or an office attorney. Def. Brf., Ex. K; D.E. 35-13.
B. PROCEDURAL HISTORY
On April 28, 2015, Plaintiff filed his initial Complaint. D.E. 1. On February 23, 2016, the
case was reassigned to the undersigned. D.E. 14. On January 18, 2017, Plaintiff filed an Amended
Complaint. D.E. 30. In his Amended Complaint, Plaintiff alleges one count: a FDCPA violation.
Am Compl.
¶J
16-18. Plaintiff claims that on several occasions Defendant’s agents, Peloso and
Steinberg, made misleading statements to Plaintiff that violated the FDCPA. On May 4, 2017.
The Court notes that either party could easily have attached an exhibit proving or disproving
this fact. However, for the purposes of these summary judgment motions, this fact is immaterial.
11
On June 15, 2017, Defendant and Plaintiff both moved for summary judgment. D.E. 35,
36. The parties opposed each other’s motion and filed replies to support their respective motions.
DiE. 38, 39, 41 & 42.
II.
SUMMARY JUDGMENT STANDARD
A moving party is entitled to summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the nonmoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino v. Indits. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence
and decide the truth of the matter but rather “to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
12
withstand a properly supported motion for summary judgment, the nonmoving party must identif,’
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.s. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 52$ (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.5. at 250-51.
LAW AND ANALYSIS
III.
A. FDCPA
The FDCPA “creates a private right of action against debt collectors who fail to comply
with its provisions.” Grtthb v. Green Tree Servicing, LLC, No 13-07421, 2014 WL 3696126, at
*4 (D.N.J. July 24, 2014). The FDCPA was enacted by Congress in 1977 with the purpose of
eliminating “abusive, deceptive, and unfair debt collection practices” by debt collectors. 15 U.S.C.
§ 1692a. “As remedial legislation, the FDCPA must be broadly construed in order to give full
effect to these purposes.” Caprio
V.
Healthcare Revenue Recovery Gip., LLC, 709 F.3d 142, 14$
(3d Cir. 2013). To that end, “[l]ender-debtor communications potentially giving rise to claims
under the FDCPA should be analyzed from the perspective of the least sophisticated debtor.”
Rosenau
V.
Unifund Corp., 539 F.3d 218, 221 (3d Cir. 200$) (quoting Brown v. Card Sen’. Ctr.,
464 F.3d 450, 454 (3d Cir. 2006)). “[A]lthough this standard protects naive consumers, it also
‘prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a
quotient of reasonableness and presuming a basic level of understanding and willingness to read
13
with care.” Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir. 2000) (quoting United
States v. Nat’lfin. Servs., Inc., 98 F.3d 131, 136 (4th Cir. 1996)).
To succeed on an FDCPA claim, a plaintiff must demonstrate that “(1) she is a consumer,
(2) the defendant is a debt collector, (3) the defendant’s challenged practice involves an attempt to
collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a provision of the FDCPA
in attempting to collect the debt.” Douglass v. Convergent Otttsottrcing, 765 F.3d 299, 303 (3d
Cir. 2014).
The FDCPA defines a consumer as “any natural person obligated or allegedly
obligated to pay any debt.”
§ 1692a(3). A debt collector is “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of which
is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.” 15 U.S.C.
opposed to ‘debt collectors’
--
§ 1692a(6). “Creditors
--
as
generally are not subject to the EDCPA.” Follice v. Nat’l Tax
funding, L.P., 225 f.3d 379, 403 (3d Cir. 2000). “The statute does not apply to persons or
businesses collecting debts on their own behalf,” Staub v. Harris, 626 F.2d 275, 277 (3d Cir. 1980),
“[b]ecause creditors are generally presumed to restrain their abusive collection practices out of a
desire to protect their corporate goodwill,” Pollice, 225 F.3d at 403. instead, “[the FDCPA] is
directed to those persons who are engaged in business for the principal purpose of collecting
debts.” ]d.
The parties do not dispute that under the statute Plaintiff is consumer, Defendant is a debt
collector, or that Defendant was attempting to collect a debt from Plaintiff Thus, the first three
elements of a FDCPA cause of action are satisfied. The critical question is whether Defendant
violated a provision of the FDCPA in collecting the debt owed to NCI. The parties each seek
summary judgment concerning the following sections of the fDCPA: Section l692d(6), Section
14
1692e, Section 16929e(3), Section 16929e(l 1), and Section 1692f Defendant adds that he is
entitled to summary judgment on the bonct fide error defense pursuant to Section 1692k(c).
Section 1 692d, “Harassment or Abuse,” in relevant part, part provides:
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. Without limiting the
general application of the foregoing, the following conduct is a
violation of this section:
(6) Except as provided in section 1692b of this title,
the placement of telephone calls without meaningful
disclosure of the caller’s identity.
15 U.S.C.
§ 1692d.
Section 1692e, “false or Misleading Representations,” in relevant part, provides:
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:
(3) The false representation or implication that any
individual is an attorney or that any communication
is from an attorney.
(11) 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 fbr that purpose,
and the failure to disclose in subsequent
communications that the communication is from a
debt collector, except that this paragraph shall not
apply to a formal pleading made in connection with
a legal action.
15 U.S.C.
§ 1692e.
Section 1 692f “Unfair Practices,” provides that “[a] debt collector may not use unfair or
unconscionable means to collect or attempt to collect any debt. 15 U.S.C.
15
§ 1692f.
Finally, Section 1692k, “Civil Liability,” provides:
(c) Intent. 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 errol-.
15 U.S.C.
§ 1692k,
B. LEGAL ANALYSIS
Plaintiff claims that Defendant’s agents violated the FDCPA over the course of five
communications with Plaintiff. The communications were in 2015 on January 2 1st, February 4th,
February 12th, and February 18th.
The Court will address the arguments concerning each
communication in turn.
1. The January 21st Phone Call
Plaintiff argues that during the January 21 St phone call, Peloso violated FDCPA Sections
1962e, 1962e(3), and 1962f. First. Plaintiff argues that Defendant violated Section 1962e when
Peloso “attempted to dissuade Plaintiff from exercising his rights to file an Answer to the
Complaint by using false, deceptive and misleading statements.”
P1. Brf. at 15; D.E 36.
Specifically, Plaintiff argues that Peloso took advantage of knowing that Plaintiff was poor and
sick, in order to convince him that filing an Answer was costly, would require his attendance at a
trial, and that he would lose. Id. further, Plaintiff alleges that Peloso’s statement to Plaintiff that
any payment sent to Defendant would go to NCI was materially false. Id. at 17.
Second, Plaintiff claims that Defendant violated both Sections 1 962e and 1 962e(3) when
Peloso gave Plaintiff the impression that she is an attorney and provided him with legal advice.
Id. at 19-24. Plaintiff points out that Defendant’s recorded disclosure stated that Plaintiff had
reached a law office and that a representative would be with him shortly. Id. at 21. Under the
16
least sophisticated consumer standard, Plaintiff asserts that it was reasonable to assume that the
person who answered his call was an attorney. Id. at 22. Plaintiff argues that this assumption
became more reasonable in light of the conversation that followed, during which Peloso used a
first person pronoun while describing a legal process to Plaintiff. Id.
Third, Plaintiff states that Defendant violated Section 1692f because “much of Defendant’s
conduct was unfair and unconscionable” during communications with Plaintiff. Id. at 2$. In
support, Plaintiff again claims that Peloso’s attempts to dissuade Plaintiff from filing an answer,
her misrepresentation that all money paid to Defendant went to Nd, her misrepresentation of the
legal process of the state court action, and her providing legal advice was unfair and
unconscionable conduct in violation of Section 1 692f. Id.
In contrast, Defendant moves for summary judgnient that the January 21st phone call did
not violate Section 1692e(3). Defendant asserts that it was unreasonable for Plaintiff to think that
Peloso was an attorney since she never claimed to be and the recorded disclosure stated that a
“representative” not “attorney” would be with the caller shortly. Def. Brf. at 15; D.E. 35.
Defendant further argues that Peloso never gave Plaintiff legal advice in violation of
Section 1 692f. Defendant first argues that neither the unauthorized practice of law nor a violation
of the Rules of Professional Conduct state a FDCPA cause of action. Defendant cites to several
case in support, including Cohen v. Wolpoff& Abramson, LLF, No. CIV.A.0$-1084, 2008 WL
4513569, at *1 (D.N.J. Oct. 2, 2008). Defendant next argues that Section 1692f is meant as a
“catchall provision” for FDCPA violations when no other specific provision applies, citing All v.
Portfolio Recovery Assocs., LCC, No. CIV. 13-4531, 2014 WL 1767564, at *4 (D.N.J. May 2,
2014). Def. Opp. at 29. To that end, Defendant asserts that Plaintiffs arguments under Section
1692f fail as a matter of law. Id.
17
Alternately, Defendant argues that if the Court finds that Peloso violated the FDCPA
during the January 21St phone call, he is still entitled to summary judgment under Section
1692k(c).
In support, Defendant asserts that any violation of the FDCPA by Peloso was
unintentional and contrary to Defendant’s express written policy and procedures. Def. Brf. at 21.
a. Section 1692e
As noted above, Section 1692e prohibits a debt collector from using any false, deceptive,
or misleading representations or means in connection with collecting a debt. Here, the question is
how the least sophisticated debtor, not the individual Plaintiff, would view the allegedly false
statements. Jensen v. Fressler & Fressler, 791 F.3d 413, 420 (3d Cir. 2015). The Third Circuit
has reasoned that the FDCPA’s purpose of protecting consumers “is best served by a definition of
‘deceive’ that looks to the tendency of language to mislead the least sophisticated recipients of a
debt collector’s [communications].” Id. (alteration in original). Thus, the Third Circuit has held
that a debt collector “is responsible for its [communication’s] content and for what the least
sophisticated debtor would have understood from it.” McLaughlin v. Phelan Hallinan & $chmieg,
LLP, 756 F.3d 240, 246 (3d Cir. 2014) (alteration in original). A communication will be found
deceptive if, under the least sophisticated debtor standard, the communication “can be reasonably
read to have two different meanings, one of which is inaccurate.” Jensen, 791 F.3d at 420. Further,
“[w]hile it is impossible to know whether a statement is misleading or deceptive without reference
to the person being misled or deceived—here, the least sophisticated debtor—the same is not true
of falsity; a statement is either true or false.” Id. Nevertheless, any allegedly false or misleading
statements are only actionable if they are material. Id. at 421 (holding that “a statement in a
communication is material if it is capable of influencing the decision of the least sophisticated
debtor”). Moreover, a debt collection communication should be considered in context, meaning
1$
within the context of the communication as a whole. Thtis v. Allied Interstate, LLC, $82 F.3d 422,
430 (3d Cir. 2018) (holding that any debt collection letters “when read in their entirety, must not
deceive or mislead the least-sophisticated debtor”); Caprio v. Healthcare Revenite Recovery Grp.,
LLC, 709 F.3d 142, 149 (3d Cir. 2013) (finding that “even the ‘least sophisticated debtor’ is
expected to read any notice in its entirety”); Campttzano-Burgos v. Midland Credit Mgmt., Inc.,
550 F.3d 294, 300 (3d Cir. 2008) (“Viewed as a whole, the settlement offers are not deceptive.”).
The Court listened to the January 21st call and carefully reviewed the complete
conversation. Peloso was always polite, professional, and cordial; she was never abusive or
harassing. Further, Plaintiff ignores that Peloso first told Plaintiff that he had the right to contest
the insurance company’s decision, to which he replied that he did not “have the strength to fight”
with his insurance company over the merits of the claim.
Directly contrary to Plaintiffs
characterization, Peloso expressly informed Plaintiff that he had the ability to contest the claim;
Plaintiff said that he did not want to. In response, Peloso explained that all she could do at that
point was attempt to “work this out” with Plaintiff. Plaintiff then informed Peloso that he had
already told the Nd billing department that he “would pay them.” Plaintiff next expressed his
disinterest in litigating the claim, telling Peloso, “I can answer and fight it and I don’t want to go
through all of that.” In fact, Plaintiff warned Peloso that he was judgment proof, indicating that “I
have no assets, so suing me would be basically pointless.” Thus, looking at (and listening to) the
entire conversation, provides an important backdrop to the portion of the conversation concerning
the answer. In light of this context, a reasonable jury could conclude that Plaintiff was not misled
or deceived by Peloso’s later statements concerning the answer because he had already informed
her that he was not going to contest the merits of the debt and that he was going to settle.
19
At the same time, Peloso’s statements as to filing an answer are not unassailable. When
Plaintiff asked Peloso whether he needed to file an answer, she could have merely stated that she
was not a lawyer and, even if she were, she could not give him legal advice. She could have also
indicated that Plaintiff had the right to file an answer and that Defendant’s firm would then contest
the matter in court. Instead, Peloso said, “[w]ell, I’m going to tell you what’s going to happen if
you do that.” She then told Plaintiff he would need to pay $30 to file an answer. While this
statement is accurate, it omits (as Plaintiff points out) that Plaintiff may have been able to avoid
the fee if he qualified for informapaitperis status. Peloso further indicated that once an answer is
filed, the matter is set for trial. Again, while this statement may be accurate (assuming that the
vicinage scheduled trial dates on the filing of an answer), it also omitted other steps, such as
discovery and motion practice. Of greater concern, Peloso ended her description of the process
stating, “[a]nd I think we can all see where this is going to go. So I don’t even want to see you—
I’d rather you pay my client then send $30 to the Court.” The statement that “I think that we can
all see where this is going to go[,]” could be reasonably interpreted under the least sophisticated
debtor standard as an indication that Plaintiff was going to lose his court case. Thus, a reasonable
jury could conclude that Peloso went too far in her statements regarding the answer and, in doing
so, violated Section 1 692e. Genuine issues of material fact, therefore, remain regarding whether
Peloso made deceptive or misleading statements concerning Plaintiffs filing of an answer.8
the Court finds that genuine issues of material fact remain here, it notes that the cases
Plaintiff cites in support of his 1 692e claim are distinguishable. for example, Plaintiff cites to
Easterling v. Collecto, Inc., 692 F.3d 229, 232 (2d Cir. 2012), to support his 1692e claims.
However, in Easterling, the Second Circuit found a Section 1962e violation when the collection
letter misleadingly stated “ACCOUNT INELIGIBLE FOR BANKRUPTCY DISCHARGE” and
“Your account is NOT eligible for bankruptcy discharge and must be resolved.” Id. The
Easterling court found such language misleading because the loan at issue was only
presumptively nondischargable in bankruptcy. Id. at 231. Here, Peloso did not make similar
8i
20
Plaintiff also alleges that Peloso made materially false statements concerning Defendant’s
fee arrangement with NCI. Plaintiff takes issues with Peloso’s statement that “[w]e represent New
Century. Any payment that comes in goes to New Century.” Plaintiff points out that, in reality,
Defendant pays NCI two-thirds of whatever payment he obtains and retains one-third for himself
P1. Brf at 16. Therefore, Plaintiff claims that this statement led him to believe that Defendant
“was just doing its job, and did not stand to gain financially from any payments that Plaintiff
made.” Id. at 17. Plaintiff, however, fails to provide the Court with any authority indicating that
fee arrangements between a debt collector and his client can form the basis of a false or misleading
claim.
Neither Peloso nor anyone on behalf of Defendant ever gave Plaintiff the impression that
Defendant was working at an hourly rate or for free. In fact, it seems that Defendant’s $200 share
would be an inadequate amount ifbased on an hourly charge. Plaintiff clearly knew that Defendant
was a debt collector working for NCI, so the least sophisticated debtor would have known (or
should have known) that Defendant was being paid for his work. While Plaintiff quibbles with
the wording of Peloso’s answer, the substance was clear if Plaintiff paid the agreed settlement
-
amount to Defendant’s law firm, the debt owed to NCI would be extinguished. The amount of the
settlement was Plaintiffs business; NCI and Defendant’s fee arrangement was not. Therefore, the
Court denies Plaintiffs motion for summary judgment as to fee arrangement communication
violating Section 1692e.
statements as to the nature of Plaintiffs debt. The Fastening case is neither controlling nor
illustrative of the statements at issue here.
21
b. Section 1692e(3)
The Court finds that genuine issues of material fact exist regarding Plaintiffs claim that he
believed that Peloso was an attorney. The critical question is whether the least sophisticated debtor
could reasonably have thought that Peloso was an attorney, when, in fact, she was only Defendant’s
agent. See Rosenau, 539 F.3d at 223. A false representation, or an implication, that a non-attorney
debt collector is an attorney is enough to violate Section 1692e(3). Id.
The parties agree that the first time Plaintiff called Defendant’s law firm he heard a
recorded disclosure that stated he had reached “the Law Office of Michael Harrison” and that a
“representative” would be with him shortly. Peloso then answered the call and discussed the debt
owed to NCI. Peloso never informed Plaintiff that she was not an attorney. Plaintiff, further,
alleges that the substance of this discussion with Peloso, where she used the pronoun “we” to
describe the legal actions that Defendant’s law firm would take if Plaintiff filed an answer, implied
she was an attorney.
In support, Plaintiff points to the Third Circuit’s decision in Rosenan, 539 f.3d at 219.
There, the plaintiff alleged that a collection letter violated Section 1 692e(3), because the letter
stated that it was from the defendant’s legal department. Id. at 220. The Third Circuit agreed that
the letter could be a possible violation, noting that none of the employees in the defendant’s legal
department were lawyers. Id. (“It is possible that the phrase ‘Legal Department’ could imply to
the least sophisticated debtor that a lawyer was involved in drafling or sending the letter.”).
Therefore, the Circuit held that at the plausibility stage, the plaintiff had stated a claim upon which
relief might be granted. Id. at 224.
Defendant asserts that Rosenait is distinguishable because it dealt with a letter signature
rather than a phone call. Further, the case was at the plausibility, rather than summary judgment,
22
stage. Def.
Opp. at 15.
Relying on the recorded disclosure, Defendant argues that since Plaintiff
heard that he would speak with a representative, Plaintiff cannot reasonably claim that he thought
an attorney answered. Id. at 17.
Both parties move for summary judgment on this issue. Both parties have presented
sufficient evidence to enable a jury to reasonably find for either side. A reasonable jury could
agree with Plaintiff, that he believed that he was speaking with an attorney because the recording
identified a law firm and a representative. Plaintiff could also prevail because Peloso described
the litigation process and referred to what “we,” i.e. the firm collectively, would do. On the other
hand, a reasonable jury could also find for Defendant because the recording never identified the
representative as a lawyer and Peloso never stated that she was an attorney. Both Plaintiff and
Defendant’s motions for summary judgment as to the January 21st phone call violating Section
1692e(3) are denied.
c. Section 1 692f
The Court finds that the January 21st phone call did not violate Section 1 692f as a matter
of law. At the outset, the Court notes that Plaintiff barely addresses Defendant’s argument that a
Section 1 692f claim must be dismissed when Plaintiff relies on another provision. Plaintiff simply
asserts, in summary fashion, that there was additional “other” conduct at issue that violated Section
1692f. P1. Opp. at 10; P1. Rep at 11. Plaintiff fails to identify the “other” conduct.
Plaintiffs conclusory assertions are insufficient to create a genuine issue of material fact.
Section 1 692f “cannot be the basis for a separate claim for conduct that is already explicitly
addressed by other sections of the FDCPA.” A/i, 2014 WL 1767564, at *4 (internal quotation
omitted). “Accordingly, ‘[c]ourts have
...
routinely dismissed
§ 1692f claims when a plaintiff does
not identify any misconduct beyond that which [he] assert[s] violate[s] other provisions of the
FDCPA.” Id. (quoting Corson, 2013 WL 4047577, at *7)). Plaintiff bases hisl692f claims on
the same conduct of Defendant that he alleges violated 1692e and 1692e(3). He fails to identify
additional improper conduct.
Therefore, the Court grants Defendant’s motion for summary
judgment the January 21st phone call did not violate Section 1 692f.9
d. Section 1 692k(c)
Finally, as noted above, Section 1 692k(c), “provides that a debt collector is not liable in an
action brought under the Act if she can show ‘the violation was not intentional and resulted from
a bonafide error notwithstanding the maintenance of procedures reasonably adapted to avoid any
such error.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010)
(quoting 15 U.S.C.
§ 1692k(c)). Further the bonafide error defense does not apply to mistakes of
law, that is, a FDCPA violation resulting from an incorrect legal interpretation of the FDCPA.
Datthertv. NRA Grp., LLC, $61 F.3d 382, 394 (3d Cir. 2017) (citing Jennan, 559 U.S. at 577). It
only applies in cases of clerical or factual mistakes. Id. (citing Jerman, 559 U.S. at 587).
To avail himself of this defense, a defendant must establish that “(1) the alleged violation
was unintentional, (2) the alleged violation resulted from a bonafide error, and (3) the bona flUe
error occurred despite procedures designed to avoid such errors.” Beck v. Maximus, Inc., 457 F.3d
291, 297—98 (3d Cir. 2006) (citations omitted). A debt collector must prove each element by a
preponderance of the evidence. Rush v. Portfolio Recovery Assocs. LLC, 977 F. Supp. 2d 414,
428 (D.N.J. 2013). The first element is a “subjective test that requires a credibility determination
concerning the debt collector’s assertions that the ensuing FDCPA violation was unintentional.”
Because the Court grants Defendant’s motion for summary judgment on this basis, the Court
does not reach Defendant’s argument that the unauthorized practice of law and a violation of the
Rules of Professional Conduct do not state a cause of action under the FDCPA.
24
Agostino v. Quest Diagnostics, Inc., No. CIV.A. 04-4362, 2011 WL 5410667, at *4 (D.N.J. Nov.
3, 2011) (citing Johnson v. Riddle, 443 F.3d 723, 728—29 (10th Cir.2006)). The second and third
elements “are objective and require an inquiry into whether any precautions were actually
implemented, and whether such precautions ‘were reasonably adapted to avoid the specific error
at issue.” Id. (quoting Johnson, 443 F.3d at 729).b0
Here, genuine issues of material fact exist as to whether the bona fide error defense is
available to Defendant. To prove the first element, Defendant points the Court to Joy Peloso’s
deposition.
In her deposition, Peloso testified that as a non-attorney debt collector she could not
provide debtors with legal advice. Def. Brf., Ex. D, Deposition of Joy Peloso (“Peloso Dep.”) at
44 ln. 3-25 & 45 in. 1; D.E. 35-6. She further testified that she never provided Plaintiff with legal
advice. Plaintiff, however, argues that Peloso intentionally dete;Ted Plaintiff from filing an answer
and gave him legal advice. P1.
Opp.
at 13. Plaintiff argues that Peloso’s statements concerning
Plaintiffs filing of an answer can only be construed as intentional. Id.
Because the first element of the bonafide error test requires the Court to make a credibility
determination, it is inappropriate for the Court to address at the summary judgment stage. When
the first element is not contested, a court may be able to determine the applicability of the defense
at the summary judgment stage. But here the parties contest whether Peloso intentionally violated
the FDCPA. Therefore, the Court declines to grant summary judgment on the bona fide error
defense and, so, will not address the second and third elements. Notwithstanding this, Defendant
can raise the bonafide error defense at trial.
10
The Court notes that Plaintiff cites to the case of Agostino Quest Diagnostics, inc. for the
proposition that the bona fide error defense involves questions of fact for the jury. P1. Opp. at
11. In fact, Agostino addresses questions of fact in the summary judgment standard of review
section not the section on a bonafide error defense.
-
25
2. February 4th Voicemail
Plaintiff argues that Peloso’s voicemail on february 4th violates Sections 1692e(1l) and
Section 1 692f of the FDCPA because Peloso failed to indicate that that the call was from a debt
collector. P1. Brf. at 24-27. Plaintiff relies heavily on Wong v. Green Tree Servicing, LLC, 2014
WL 4418077, at *1 (D.N.J. Sept. 5, 2014). Plaintiff also claims that Peloso’s “failure to disclose”
was unfair and unconscionable conduct in violation of Section 1 962f. Id. at 28.
Defendant, on the other hand, argues that he is entitled to summary judgment finding that
the February 4th voicemail did not violate FDCPA Sections 1692e(11), 1692d(6), and 1692f.
Defendant claims that the voicemail did not violate 1692e(11) because Plaintiff already knew that
Defendant was a debt collector for whom Peloso worked. Id. at 10-13. Moreover, Defendant
argues that the voicemail sufficiently disclosed that the voicemail was from a debt collector.
Defendant cites primarily to Davis v. Hollins Law, 832 F.3d 962, 963 (9th Cir. 2016). Defendant
also argues that Peloso did not violate Section 1692d(6) when she lefi the voicemail for the same
reasons that Peloso did not violate Section 1692e(1 1). Def Brf. at 5-8; D.E. 35. Finally, as above,
Defendant argues that Section 1 692f is meant as a “catch-all provision” for FDCPA violations
when no other specific provision applies. Def. Opp. at 29. To that end, Defendant asserts that
Plaintiffs arguments under Section 1692f fail as a matter of law. Id. Alternately, Defendant
argues that if the Court finds that the voicemail violated the FDCPA, he is nevertheless entitled to
summary judgment under Section 1692k(c), the bonafide error defense.
a. Section 1692e(11)
As noted, Plaintiff relies on Wong, 2014 WL 4418077, at *1. In Wong, the defendant debt
collection service attempted to collect fees owed on a personal mortgage by leaving two voicemails
for the plaintiff. 2014 WL 4418077, at *1. The first voicemail stated, “This message is for Jerry
26
Wong, Jerry this is Daniel from Greentree [sic], sir I need a call back from you today, my number
is 877—808—0048 my direct extension is $6428 give me a call back at your earliest convenience sir
I will be in the office until 8, thank you, have a good one.” Id. (alteration in original). The second
voicemail indicated, “This message is for Jerry Wong, my name is Calandra I’m calling from
Greentree [sic] please give me a call at 855—892—8914.” Id. (alteration in original).
The trial
judge denied the defendant’s motion to dismiss as to Section 1962e(1 I). Id. at 5. The court in
Wong found that the plaintiff had plausibly plead a Section 1962e(1 1) violation because the
defendant argued, without evidence, that the plaintiff was aware that Greentree was debt collection
service. However, the district court noted that the defendant cited several non-controlling cases,
which suggested that at the motion for summary judgment stage a different determination could
be reached. Id. at 5 fn. 4. Finding such an argument premature, the court did not address it. Id.
Defendant counters that, while not binding, the Ninth Circuit’s decision in Davis is more
relevant. $32 F.3d at 962. In Davis, the plaintiff obtained a credit card and subsequently failed to
pay the card’s balance. Id. at 964. The debt was referred to Hollins Law, the defendant’s law firm
and debt collection agency. Id. at 964-65. The defendant’s agent called and spoke with the
plaintiff about the debt. Afler not hearing back from the plaintiff, the agent called and spoke with
the plaintiffs wife. Id. at 965. The following month another agent began working on the case.
The new agent emailed with the plaintiff regarding settlement offers. Id. Five days afier the
plaintiff sent the agent an email, the agent left the plaintiff a voicemail. It provided: “Hello, this
is a call for Michael Davis from Gregory at Rollins Law. Please call sir, it is important, my number
is 866-513-5033. Thank You.” Id. at 966. The plaintiff later filed suit against the defendant
alleging, among other things, that the voicemail violated Section 1692e(l 1).
27
The Ninth Circuit held that the voicemail did not violate Section 1 692e( 11). The Circuit
concluded that “given the extent of the prior communications, that the voicemail message’s
statement that the call was from ‘Gregory at Hollins Law’ was sufficient to disclose to a debtor
with a basic level of understanding that the communication at issue was ‘from a debt collector.”
Id. at 967 (citing 15 U.S.C.
§ 1692e (11)). Indeed, the Circuit went on to say that “any other
interpretation of [the defendant’s agent’s] voicemail message would be ‘bizarre or idiosyncratic.”
Id. (citing 15 U.S.C.
§ 1692e).
The Court agrees with Defendant’s position. Although Davis is not controlling, the Ninth
Circuit’s reasoning is persuasive. Like Davis, Peloso’s february 4th voicemail came after Peloso
and Plaintiffhad already communicated on several occasions. Plaintiff spoke with Peloso, at some
length, about the debt owed to NCI on January 21St. Plaintiff then had two more conversations
with Peloso about the NCI debt on January 29th. On both the January 21st call and one of the
January 29th calls, Plaintiff heard the recorded disclosure, which unambiguously indicated that
Plaintiff had reached the law finn of Michael Harrison, which was attempting to collect a debt.
Less than a week later, Peloso left Plaintiff the February 4th voicemail, which indicated:
“This message is for Richard. This is Joy [Peloso] from Attorney Michael Harrison calling you
regarding New Century Imagine. Please call me at 973-361-9271. Thank you.” Similar to the
voicemail in Davis, Peloso provided her name, her employer’s name, and the matter about which
she was calling. Plaintiff already knew the he allegedly owed NCI payment, that the Law Office
of Michael Harrison was attempting to collect the debt, and that Peloso was working on the matter.
All of this information would have made it clear to the least sophisticated debtor that the February
4th voicemail was from a debt collector. To find otherwise, stretches credulity and enters into the
28
“bizarre and idiosyncratic” as the Davis court observed.
Therefore, Defendant’s motion for
summary judgment as to the february 4th voicemail violation of Section 1692e(11) is granted.
b. Section 1692d(6)
The february 4th voicemail also did not violate Section 1692d(6). Similar to Section
1 692e, Section 1 692d prohibits a debt collector from using harassing, oppressive, or abusive
conduct to collect a debt. Further, Section 1692d(6), like Section 1692e(1 1), prohibits a debt
collector from making telephone calls without disclosing his identity. However, 1692d(6) adds
the qualification that the prohibition is for phone calls placed without meaning/id disclosure of the
debt collector’s identity.
The Third Circuit has not addressed what constitutes meaningful disclosure of a caller’s
identity under Section 1692d(6). Defendant relies on Pisarz v. GC
Servs.
Ltd. P’ship, 2017 WL
1102636 (D.N.J. Mar. 24, 2017). In Fisarz, the court acknowledged that while there was “no Third
Circuit case addressing the necessity for a debt collector to identify itself in either a voicemail or
answering machine message under this FDCPA provision, numerous district courts have
determined that a debt collector’s failure to reveal itself as a collection agency when leaving
messages violates the FDCPA.” Fisarz, 2017 WL 1102636, at *6 (citations omitted). The court
in Fisarz then concluded that meaningful disclosure meant disclosing sufficient information so
that the recipient was not misled as to the purpose of the call. Id.
For the same reasons that there was not a Section 1692e(11) violation, the Court finds no
Section 1 692d(6) violation. Plaintiff had several, prior substantive conversations with Peloso
about the debt owed to NCI.
Before the voicemail, Plaintiff was aware of Peloso’s name,
Defendant’s law firm’s name, that Defendant’s law firm was attempting to collect a debt, and the
name of the entity to whom he potentially owed payment. Therefore, Peloso’s February 4th
29
voicemail, in which she disclosed her name, Defendant’s law firm name, and that she was calling
in regards to the NCI matter meaningful disclosed Defendant’s identity as a debt collector.
Defendant’s motion for summary judgment as to the February 4th voicemail violation of Section
1692d(6) is granted.
c. Section 1692f
The Court also finds that the February 4th voicemail did not violate Section 1 692f. Plaintiff
again fails to identify additional conduct of Defendant that differs from the conduct Plaintiff relies
on for a violation Section 1692e(1l). As discussed, Section 1692f “cannot be the basis for a
separate claim for conduct that is already explicitly addressed by other sections of the FDCPA.”
All, 2014 WL 1767564, at *4 (internal quotation omitted).
routinely dismissed
“Accordingly, ‘[c]ourts have
§ 1 692f claims when a plaintiff does not identify any misconduct beyond that
which [he] assert[sj violate[s] other provisions of the FDCPA.” Id. (quoting Corson, 2013 WL
4047577, at *7)). Therefore, as to the February 4th voicemail, the Court grants Defendant’s motion
for summary judgment under Section 1 692f’1
d. Section 1692k(c)
Because the Court grants Defendant’s motion summary judgment as to the February 4th
voicemail under Sections 1692e(1 1), 1692d(6), and 1692(f), Defendant’s Section 1692k(c)
argument is moot.
3. February 12 & 18th Phone Calls
Finally, Defendant claims that he is entitled to summary judgment because Steinberg did
not violate Sections 1692e(3) or 1692f of the FDCPA as a matter of law. Defendant first asserts
As noted above, because the grants Defendant’s motion for summary judgment on this basis,
the Court does not reach Defendant’s argument that the unauthorized practice of law and a
violation of the Rules of Professional Conduct do not state a cause of action under the FDCPA.
30
that there was no reasonable or rational basis for Plaintiff to assume that Steinberg was an attorney
in violation of Section 1 692e(3) for substantially the same reasons argued as to Peloso being
viewed as a lawyer. P1. Brf at 15-16.
Defendant next argues that no dispute of material fact remains as to whether Steinberg
violated Section 1 692f. Defendant claims that Steinberg did not give Plaintiff legal advice during
either the February 12th or 18th phone call. Moreover, for the same reasons that Defendant argues
that Peloso did not violate Section 1 692f during the prior communications, Defendant argues
Steinberg did not violate Section 1 692f.
Namely, Defendant again asserts that neither the
unauthorized practice of law nor a violation of the Rules of Professional Conduct state a cause of
action under the FDCPA. Moreover Defendant also again claims that Section 1 692f is meant as a
“catch-all provision” for FDCPA violations when no other specific provision applies, citing All,
2014 WL 1767564, at *4
Def. Opp. at 29. To that end, Defendant asserts that Plaintiff’s
arguments under Section 1 692f fail, here too, as a matter of law. Id. Alternately, Defendant argues
that if the Court finds that Steinberg violated the FDCPA during either phone call, he is still entitled
to summary judgment under Section l692k(c), the bonafide error defense. Def. Brf. at 21.
a. Section 1692e(3)
For similar reasons that the Court denied summary judgment as to the same issue involving
Peloso, the Court finds that genuine issues of material of fact remain regarding the alleged
violations of Section 1 692e(3) vis-à-vis Steinberg. Plaintiff does not address Defendant’s motion
as to Steinberg violating Section 1692e(3). Even though Plaintiff fails to oppose Defendant’s
claim, the Third Circuit has cautioned that “the movant for summary judgment has the burden of
demonstrating the absence of genuine issues of material fact
.
.
.
and even if the opposing party
fails to file contravening affidavits or other evidence, summary judgment must still be
31
‘appropriate’ and will be denied where the movant’s own papers demonstrate the existence of
material factual issues.” Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 790 (3d Cir.
1978) (internal citations omitted).
As found above in addressing Peloso’s alleged violations of Section 1692e(3), here, a
reasonable jury could conclude that the recorded disclosure and Steinberg’s communications with
Defendant implied to the least sophisticated debtor that Steinberg was an attorney. Steinberg’s
comments as to the answer were more benign than Peloso’s; Steinberg essentially told Plaintiff
that he could file an answer if he wanted but that Plaintiff did not need to if he had already paid
the settlement amount. Yet, this factual difference with Peloso’s comments is not sufficient to
preclude Plaintiff from taking the issue to trial. On the other hand, a reasonable jury could find
that nothing in the February 12th or 18th phone calls created the implication that Steinberg was a
lawyer. Therefore, Defendant’s motions for summary judgment as to the February 12th or 18th
phone calls violating Section 1692e(3) is denied.
b. Section 1692f
The Court again finds that the February 12th and 18th phone calls did not violate Section
1692f as a matter of law. Plaintiff again fails to assert additional conduct of Defendant that differs
from the conduct Plaintiff already identified to support the other FDCPA violations. Therefore,
as to the February 12th and 18th phone calls, the Court grants Defendant’s motion for summary
judgment under Section 1692f.’2
12
As noted above, because the grants Defendant’s motion for summary judgment on this basis,
the Court does not reach Defendant’s argument that the unauthorized practice of law and a
violation of the Rules of Professional Conduct do not state a cause of action under the FDCPA.
32
c. Section 1692k(c)
Finally, as discussed above, Section 1 692k(c), “provides that a debt collector is not liable
in an action brought under the Act if she can show ‘the violation was not intentional and resulted
from a bonafide error notwithstanding the maintenance of procedures reasonably adapted to avoid
any such error.”Jerman, 559 U.S. at 576 (quoting 15 U.S.C.
§ 1692k(c)). Here, Defendant is not
entitled to summary judgment under Section 1 692k(c). Defendant has not sufficiently alleged by
a preponderance of the evidence the first element of Section 1692k(c). Defendant instead focuses
on Peloso’s communication with Plaintiff during the January 21st phone call and February 4th
voicemail. He does not allege specific facts to establish that if Steinberg violated Section 1692e(3),
the violation was unintentional. Defendant, therefore, falls short on carrying his burden of proof.
In addition, because the first element of the bona fide error defense requires a credibility
determination, it is unlikely that Defendant would be entitled to summary judgment even if he had
specifically addressed Steinberg as opposed to Peloso. Consequently, the Court denies Defendant
summary judgment pursuant to Section 1692k(c) as to the february 12th and 18th phone calls.
IV.
CONLCUSION
For the reasons stated above, Defendant’s motion for summary judgment (D.E. 35) is
GRANTED in part. Plaintiffs motion for summary judgment (D.E. 36) is DENIED. An
appropriate Order accompanies this Opinion.
Dated: April 24, 2018
John’Michael Vazque’f.D.J.
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