Johnson v. LVNV Funding Sherman Aquisitions et al
Filing
49
DECISION AND ORDER denying 28 Motion for Summary Judgment; granting 35 Motion for Summary Judgment; denying 37 Motion for Summary Judgment; denying 46 Motion to Appoint Counsel ; denying 46 Motion. Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 12/1/2011. (JMB)
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
GABRIEL JOHNSON,
Plaintiff,
DECISION AND ORDER
10-CV-467A
v.
CAPITAL MANAGEMENT SERVICES,
KEITHA BARBER,
TONI MOREHEAD, and
W ES CALDW ELL,
Defendants.
I.
INTRODUCTION
Plaintiff Gabriel Johnson (“Plaintiff”), who is proceeding pro se, commenced
this action against, inter alia, Defendants Capital Management Services (“CMS”) and
CMS Collectors Keitha Barber (“Barber”), Toni Morehead (“Morehead”), and W es
Caldwell (“Caldwell”),1 alleging violations of various provisions of the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692-1692p (“FDCPA”).
The claims in Plaintiff’s amended complaint (Docket No. 4) arise out of several
telephonic communications between Plaintiff and Defendants concerning what
Plaintiff asserts is an invalid credit card debt.
1
CMS and CMS Collectors will be referred to collectively as “Defendants” herein.
Currently before the Court are Plaintiff’s motions for summary judgment with
regard to his two remaining claims in the amended complaint against Defendants
(Docket Nos. 28, 37), as well as his second motion to appoint counsel (Docket No.
46).
Defendants have filed an opposition to Plaintiff’s motion and have crossmoved for summary judgment on the basis that the undisputed facts do not give rise
to CMS’ liability under the FDCPA (Docket No. 35).
The Court has deemed the motions submitted on papers pursuant to Rule
78(b) of the Federal Rules of Civil Procedure. For the reasons that follow, Plaintiff’s
motions for summary judgment and appointment of counsel are denied and
Defendants’ cross-motion for summary judgment is granted.
II.
BACKGROUND
Plaintiff’s amended complaint alleges that CMS violated the FDCPA when
Defendants refused to validate a debt, and that CMS Collectors harassed and
verbally abused him and made misrepresentations to him regarding the subject debt.
Plaintiff’s allegations arise from a series of telephone conversations occurring
on June 15 and June 16, 2010. The following facts are not in dispute.
On or about June 14, 2010, Plaintiff had an account with Resurgent Capital
Services (“Resurgent”) that was assigned to CMS for collection. CMS called Plaintiff
approximately three times on June 14, 2010. The following day, June 15, 2010,
Plaintiff called back the number belonging to CMS and spoke with CMS Collectors,
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who advised Plaintiff of his collection account with CMS, the name and identity of the
original creditor, the current owner of the debt, and the amount of the debt owed.
Plaintiff stated that he intended to dispute the debt, and was advised by CMS
Collectors that the collection efforts would continue until CMS received notice of a
dispute at their office.
Following Plaintiff’s threats to sue CMS, he was transferred to approximately
four different representatives until he was ultimately informed that his collection
account had been closed pursuant to a “cease and desist” order placed by CMS
after Plaintiff’s threat of an FDCPA lawsuit. CMS made no further efforts to collect
on the subject debt after June 15, 2010. On June 16, 2010, CMS marked the
account as “disputed,” and Plaintiff’s file was recalled by Resurgent.
During these conversations, Plaintiff told CMS collectors that he was a debt
collector himself, understood his rights under the FDCPA, understood his obligations
to properly dispute a debt, and had already filed one lawsuit against LVNV Funding
for $300,000. Plaintiff recorded all of the aforementioned calls.
III.
DISCUSSION
A.
Summary Judgment–General Principles
Federal Rule of Civil Procedure 56 provides that summary judgment is
warranted where the “pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
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matter of law.” Fed. R. Civ. P. 56(c). “In reaching this determination, the court must
assess whether there are any material factual issues to be tried while resolving
ambiguities and drawing reasonable inferences against the moving party, and must
give extra latitude to a pro se plaintiff.” Thomas v. Irvin, 981 F. Supp. 794, 798
(W .D.N.Y. 1997) (Skretny, J.) (internal citations omitted).
A “genuine issue” exists “if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under
governing law.” Id.
In deciding a motion for summary judgment, the evidence and the inferences
drawn from the evidence must be “viewed in the light most favorable to the party
opposing the motion.” Addickes v. S.H. Kress, 398 U.S. 144, 158–59 (1970). “Only
when reasonable minds could not differ as to the import of evidence is summary
judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function
of the court is not “to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
B.
The Fair Debt Collection Practices Act
The FDCPA was enacted to “protect consumers from ... unfair, harassing, and
deceptive debt collection practices without imposing unnecessary restrictions on
ethical debt collectors.” Monahan v. NRA Grp., No. 10–CV–00638, 2011 W L
3901877, at *2 (D. Conn. Sept. 6, 2011) (quoting S. Rep. No. 95–382, at 1 (1977)).
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The FDCPA establishes a general prohibition against the use of “false,
deceptive, or misleading representations by any means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. Section 1692e(10) contains a “catch-all”
provision that prohibits “[t]he use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information concerning a
consumer.” 15 U.S.C. § 1692e(10); see Cloman v. Jackson, 988 F.2d 1314,1320 (2d
Cir. 1993).
Likewise, under 15 U.S.C. § 1692d, “a debt collector may not engage in any
conduct the natural consequence of which is to harass, oppress, or abuse” a debtor
in connection with the collection of a debt. 15 U.S.C. § 1692d. Such prohibited
conduct includes obscene or profane language, or other language “the natural
consequence of which is to abuse the hearer.” 15 U.S.C. § 1692d(2).
Finally, § 1692g proscribes collection activities which have the effect of
contradicting or overshadowing a consumer’s rights to dispute the debt, and requires
debt collectors to send consumers a written notice “within five days after the initial
communication with a consumer in connection with the collection of any debt.” 15
U.S.C. § 1692g(a)(1–5).
C.
Parties’ Motions for Summary Judgment
Plaintiff has moved for summary judgment with respect to three claims in his
amended complaint labeled “F,” “G,” and “H.” See Pl. First Mot. for Summ. J.
(Docket No. 28) and Pl. Second Mot. for Summ. J. (Docket No. 37).
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Plaintiff’s Claim “F” asserts that CMS Collectors Morehead, Barber, and
Caldwell harassed and verbally abused Plaintiff in contravention of the FDCPA,
although Plaintiff does not cite to any specific statutory component of the FDCA that
was allegedly violated by the CMS Collectors. Plaintiff seeks to have the
aforementioned defendants “banned from collections” and has requested $28,000
in damages. Am. Compl. at 15-19.
Claims “G” and “H” allege the same violations as Claim “F,” but against former
defendants Resurgent, Monarch Recovery Management, and LVNV Funding, who
have previously been dismissed from this action pursuant to a settlement
agreement. Accordingly, those claims will not be considered by the Court on this
motion.
Reading Plaintiff’s motion papers and amended complaint liberally, the Court
presumes that Plaintiff seeks summary judgment with regard to Claim “I,” which
alleges “harassment, misinformation, and violations [of the FDCPA] and
inconvenience” by CMS, apparently based on its alleged refusal to validate Plaintiff’s
debt. Am. Compl. at 19-23.
CMS and its Collectors have cross-moved for summary judgment with regard
to the same issues on the basis that the evidence does not support any claim for
CMS’ liability under the FDCPA. Because both sides have addressed the same
subject matter and the facts in this case are undisputed, the Court has evaluated
both parties’ motions together and finds that no triable issues of fact exist on this
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record, and the evidence does not establish actionable claims against CMS under
the FDCPA.
1.
Local Rule 56
As CMS initially points out, Plaintiff’s motions for summary judgment are
deficient under the Local Rules of Civil Procedure because they do not include
accompanying statements of facts. Local Rule of Civil Procedure 56(a)(1) requires
that a motion for summary judgment be accompanied by a statement of undisputed
facts citing to admissible evidence. “Failure to submit such a statement may
constitute grounds for denial of the motion.” Local Rule 56(a)(1).
It is well-settled that one’s status as a pro se litigant “does not excuse his
non-compliance with the Local Rules.” Vanbrocklen v. U.S. Transp. Sec. Admin., No.
08-CV-312, 2009 W L 1449042, at *2 (N.D.N.Y. May 21, 2009) (citing Faretta v.
California, 422 U.S. 806, 834, n.46 (1975) (“The right of self-representation is not a
license . . . not to comply with relevant rules of procedural and substantive law.”) and
Edwards v. INS, 59 F.3d 5, 8 (2d Cir. 1995) (“W hile a pro se litigant’s pleadings must
be construed liberally, . . . pro se litigants generally are required to inform
themselves regarding procedural rules and to comply with them.”)).
The Local Rules are not unfamiliar to Plaintiff in light of the fact that he has
previously litigated another case in this Court. See Johnson v. Creditors Fin. Grp.,
10-CV-286(A). Additionally, his familiarity with the Local Rules is evident by the fact
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that in connection with this motions, he complied with Local Rule 7(a) by filing with
the Court a supporting memorandum of law and affidavits.
Even if Plaintiff’s motions were not subject to dismissal for his disregard of the
Local Rules, his claims would fail as a matter of law.
2.
Harassment and Verbal Abuse Claim
Plaintiff’s claim “F” asserts harassment, abuse and general, unspecified
“violations” of the FDCPA by CMS Collectors Morehead, Barber, and Caldwell. Am
Compl. at 18-19; Pl. Memo at 2-3.
As stated earlier, § 1692d prohibits “any conduct the natural consequence of
which is to harass, oppress, or abuse” a debtor. 15 U.S.C. § 1692d. Such prohibited
conduct includes: (1) the use of threat or use of violence, (2) the use of obscene or
profane language, (3) the publication of a list of consumers who allegedly refuse to
pay debts, (4) the advertisement for sale of any debt to coerce payment of the debt,
(5) causing a telephone to ring or engaging any person in telephone conversation
repeatedly or continuously with intent to annoy, abuse, or harass any person at the
called number, and (6) the placement of telephone calls without meaningful
disclosure of the caller’s identity. 15 U.S.C. § 1692d(1–6).
Here, Plaintiff does not specify which portion of Section 1692d was allegedly
violated, nor does he state any factual allegations against CMS with respect to his
claims of harassment. The Court does, however, have the benefit of a written
transcript and audio recording of the telephone conversations upon which Plaintiff
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has based his allegations. Simply put, the transcript provided in this case belies
Plaintiff’s claims.
According to the complaint, debt collectors at CMS attempted to reach Plaintiff
by phone on three occasions on June 14, 2010, but did not leave a message. The
following day, Plaintiff dialed back the number to determine the source of the phone
calls, and reached CMS. He then had a series of conversations with CMS Collectors
Morehead, Barber, and Caldwell.
The transcript indicates that the Plaintiff first spoke with CMS Collector
Morehead. After verifying Plaintiff’s phone number and address, Morehead stated
that she was calling to attempt to collect a debt in reference to a Visa credit card
issued by Credit One Bank. Def. Exh. B (Docket No. 35-3) at 3. Morehead
proceeded to advise Plaintiff of the balance of the account, when the collection
account was placed with CMS, who currently owned the account, and asked Plaintiff
how he would be “taking care of it today.” Id. Plaintiff stated that he did not recall a
Credit One bank Visa card, and Morehead transferred Plaintiff to another collector,
Keitha Barber. Id. at 4.
Plaintiff initially indicated to Barber that he would dispute the account because
he “ha[d] no idea of” it. Pl. Exh. B at 5. Barber then asked Plaintiff who else would
have had access to his personal information in order to open an account in his name
and subsequently make payments on it. Plaintiff stated that he did not like Barber’s
“dogmatic attitude,” to which Barber responded: “Really, that sounds like a personal
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problem, my main concern is this account, and to get it resolved . . . you’re stalling
right now.” Pl. Exh. B at 5-6. After requesting to speak with a supervisor, Plaintiff’s
call was transferred.
W hile Barber’s collection efforts were discernibly more aggressive than
Morehead’s, nothing that transpired during this conversation between Barber and
Plaintiff can be said to amount to a violation of § 1962d. Plaintiff has provided no
law in support of his contention that Barber’s statements to him rise to the level of
“harassment,” as that term is used in Section 1692d. By way of contrast, Section
1692d lists six nonexclusive examples of harassing conduct, which include the use
or threat of violence, the use of profane or threatening language, publicly advertising
debts or debtors, and making abusive and repeated telephone calls. In the Court’s
view, none of the conduct alleged by the Plaintiff is similar in seriousness to any of
these examples. Indeed, “[a]ny attempt to collect a defaulted debt will be unwanted
by a debtor.” Harvey v. Great Seneca Fin., 453 F.3d 324, 330–31 (6th Cir. 2006).
Finally, the last CMS Collector to speak with Plaintiff was W es Caldwell, who
represented himself as Barber’s “manager.” Caldwell also made repeated attempts
to “resolve” the account with Plaintiff, who maintained that he wished to dispute the
debt. Caldwell advised Plaintiff that, “If you want to dispute the account Mr. Johnson
there is no need for us to continue this conversation, I told you what you need to do
to go ahead and dispute this . . . Until we receive something in this office, the
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collection terms will continue . . .” Def. Exh. B at 6-8. W hen Plaintiff threatened to
commence an FDCPA lawsuit, he was connected with a supervisor.
Plaintiff fails to identify any evidence to support his conclusion that any of the
CMS Collectors’ conduct was intended to harass, oppress, or abuse him in any way.
There are no allegations, let alone any evidence, that CMS Collectors used obscene,
profane, or abusive language, and the Court cannot detect any other possible
violation of § 1692d on this record. W hile the Collectors’ conduct may have been
annoying to Plaintiff, “Section 1692d is meant to protect debtors from oppressive and
outrageous conduct, but not from every negative consequence of debt collection.”
Monahan v. NRA Grp., No. 10-CV-00638, 2011 W L 3901877, at *2 (D. Conn. Sept.
6, 2011) (citing Bieber v. Assoc. Collection Servs., 631 F. Supp. 1410, 1417 (D. Kan.
1986) (“Some inconvenience or embarrassment to the debtor is a natural
consequence of debt collection.”). Finally, it is worth noting that it was Plaintiff who
initiated the phone calls on June 15, 2010 and made repeated attempts to contact
CMS after CMS had ceased its collection efforts.
Likewise, to the extent that Plaintiff seeks to allege a violation of 15 U.S.C.
§ 1692e arising out of his conversation with CMS Collector Caldwell, see Pl. Aff.
(Docket No. 41), ¶ IV, who identified himself as a manager but was in fact a debt
collector, such an assertion is insufficient to state a violation of the FDCPA.
Section 1692e prohibits debt collectors from using false, deceptive, or
misleading representations to collect a debt:
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A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt. W ithout limiting the general
application of the foregoing, the following conduct is a
violation of this section . . . (10) The use of any false
representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a
consumer.
15 U.S.C. § 1692e(10).
W hile there is an issue of fact as to whether Caldwell was a “manager” or a
debt collector, it immaterial to this action. Even if Caldwell misrepresented his
position, and such misrepresentation constitutes a violation of company policy, there
is still nothing on this record giving rise to an infringement of 1692e(10). Plaintiff also
does not attempt to argue how Caldwell’s conduct amounts to a deceptive practice
for purposes of the statute. Rather, it appears that Plaintiff merely seeks to air his
dissatisfaction with CMS’ efforts at collecting an allegedly invalid debt, which is not
actionable in this proceeding. See Bleich v. Revenue Maximization Grp., 233 F.
Supp. 2d 496, 500 (E.D.N.Y. 2002) (“[T]he allegation that the debt sought to be
collected is not owed, standing alone, cannot form a basis for a ‘false and misleading
practices’ claim under the FDCPA.”)
The Court concludes that because the undisputed evidence demonstrates that
Plaintiff has not established a violation of the FDCPA, Defendants are entitled to
summary judgment on Plaintiff’s claim of harassment and verbal abuse as set forth
in Claim “F” of the amended complaint.
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2.
Debt Validation Claim
Plaintiff also contends in Claim “I” that CMS erroneously labeled his account
as “cease and desist” after he verbally informed them that he would be disputing the
debt. Pl. Mem. (Docket No. 38) at 5.
The FDCPA requires a debt collector to provide written notice of the debt and
the consumer’s right to dispute it within five days of the collector’s initial
communication with the consumer.2 See 15 U.S.C. § 1692g(a). Further, Section
1692g provides:
If the consumer notifies the debt collector in writing within
the thirty-day period described in subsection (a) that the
debt, or any portion thereof, is disputed, or that the
consumer requests the name and address of the original
creditor, the debt collector shall cease collection of the
debt, or any disputed portion thereof, until the debt
collector obtains verification of the debt or any copy of a
judgment, or the name and address of the original creditor,
and a copy of such verification or judgment, or name and
address of the original creditor, is mailed to the consumer
by the debt collector.
See 15 U.S.C. § 1692g(b).
Here, Plaintiff did not make a written request to dispute the debt as described
in the procedure above. Although a consumer may dispute a debt orally, only a
written dispute or request for verification will trigger a debt collector’s duty to halt
2
The transcripts of the recordings indicate that Plaintiff called CMS the day after his
account was placed in collections. Accordingly, the written notice described in 1692g(a) had not
yet been sent to Plaintiff. That day, a CMS supervisor verbally advised Plaintiff how he could
dispute the debt in writing and provided addresses for both CMS and Resurgent. Def. Exh. B at
15-16.
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collection activities or send verification of the debt by mail. Ong v. Am. Collection
Enter., No. 98-CV-5117, 1999 W L 51816, at *3 (E.D.N.Y. Mar. 15, 1999); see also
Young v. Credit Bureau of Lockport, No. CIV-86-1121E, 1989 W L 79054, at *1-2
(W .D.N.Y. July 17, 1989), amended on other grounds, 729 F. Supp. 1421
(W .D.N.Y.1989) (Elfvin, J.). Because Plaintiff made only a verbal request to dispute
the debt, there was no affirmative duty by CMS to provide verification to Plaintiff, and
therefore CMS could not have been in violation of the FDCPA for failing to take such
action.
In any event, notwithstanding Plaintiff’s failure to invoke the written procedure
set forth in 15 U.S.C. § 1692g(b), it is undisputed that CMS ceased collection of the
debt upon Plaintiff’s verbal notification to CMS Collectors that he wished to dispute
the debt. W hether Plaintiff’s account was labeled “cease and desist” or “disputed”
does not matter, because CMS did more than it was required to do under the
FDCPA by halting collection efforts. See, e.g., Jang v. A.M. Miller, 122 F.3d 480 (7th
Cir. 1997) (“Section 1692g(b) . . . gives debt collectors two options when they
receive [written] requests for validation. They may provide the requested validations
and continue their debt collecting activities, or they may cease all collection
activities.”); Smith v. Transworld Sys., 953 F.2d 1025, 1031 (6th Cir. 1992) (debt
collector does not violate the FDCPA when it ceases collection activity after receiving
a request for validation; debt collector need not first send validation before ceasing
collection activity).
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It is uncontested that CMS ceased its collection efforts upon Plaintiff’s verbal
notification that he wished to dispute the debt, which, under the FDCPA, it was fully
entitled to do. Because CMS’ action in placing a “cease and desist” notation on
Plaintiff’s account following his verbal notice of dispute does not constitute a violation
under the statutory framework of the FDCPA, Plaintiff is not entitled to summary
judgment on his claim that his right to dispute and seek verification of the debt was
violated by CMS. Defendants’ cross-motion for summary judgment is therefore
granted with respect to Claim “I.”
For all of the foregoing reasons, the Court finds that Plaintiff is not entitled to
summary judgment on his remaining claims against Defendants in the amended
complaint, which is dismissed in its entirety, and summary judgment is warranted for
CMS in this action.
E.
Plaintiff’s Second Motion to Appoint Counsel
In light of the Court’s decision granting summary judgment to Defendants,
Plaintiff’s motion to appoint counsel is denied as moot.
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IV.
CONCLUSION
For all of the foregoing reasons, the Court:
(1)
Denies Plaintiff’s Motions for Summary Judgment (Docket Nos. 28, 37);
(2)
Denies Plaintiff’s Second Motion to Appoint Counsel (Docket No. 46);
(3)
Grants CMS’ Cross-Motion for Summary Judgment (Docket No. 35);
The Clerk of the Court shall close this case.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: December 1, 2011
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