May v. Asset Acceptance, LLC
Filing
43
DECISION AND ORDER GRANTING in part and DENYING in part Defendant's 26 Motion for Summary Judgment. Signed by William M. Skretny, Chief Judge U.S.D.C. on 3/28/2013. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LEO MAY,
Plaintiff,
v.
DECISION AND ORDER
11-CV-525S
ASSET ACCEPTANCE LLC,
Defendant.
I. INTRODUCTION
Plaintiff, Leo May, brings this action alleging that Defendant, Asset Acceptance LLC
(“Asset”), violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq.
(“FDCPA”) and the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).
Presently before this Court is Asset’s motion for summary judgment. (Docket No. 26.) For
the following reasons, that motion is granted in part and denied in part.
II. BACKGROUND
A.
Facts1
The parties agree that Asset “is in the business of purchasing charged-off accounts
from credit originators and other sellers” and that, in 2006, Asset purchased May’s
defaulted Providian credit card account carrying an unpaid balance of $10,000. (Def.’s
Stmnt., ¶¶ 1-4; Docket No. 30.) The parties, however, have divergent views of the more
pertinent facts. May asserts that, despite his requests that they stop and his indication that
the debt was exempt from collections, Asset made several harassing phone calls in an
1
This Court has accepted facts in each party’s statem ent of undisputed facts (referred to as “Pl.’s
Stm nt.” and “Def.’s Stm nt.” respectively) to the extent that they have not been controverted by the
opposing party. See L. R. Civ. P. 56(a)(2) (statem ents not specifically controverted are deem ed adm itted).
1
attempt to collect the outstanding debt. (Pl.’s Stmt., ¶ 10; Docket No. 39.) He further claims
that a representative from Asset once falsely informed him that Asset had filed a lawsuit
against him and had sent a sheriff to his home. (Id.) Finally, he asserts that Asset failed to
correct an Experian credit report that falsely reported the past-due date as 2010 instead
of 2006. (Id., ¶ 19.)
Asset paints a different picture. It contends that it made a single, legal telephone call
to May, and that it never threatened legal action or suggested that May should expect a
sheriff at his home. (Def.’s Stmnt., ¶¶ 10–13.) It also repudiates any responsibility for the
incorrect credit report and disputes the import of his exempt status.
B.
Procedural History
May filed his complaint in this Court on June 21, 2011. (Docket No.1.) On August
22, 2011, Asset filed its answer. (Docket No. 5.) After discovery, Asset filed the present
motion for summary judgment on May 9, 2012. (Docket No. 26.) Briefing on this motion
concluded on July 12, 2012, at which time this Court took the motion under consideration.
III. DISCUSSION
A.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment if 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.” A fact is “material” only if
it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A “genuine”
dispute exists “if the evidence is such that a reasonable jury could return a verdict for the
non-moving party.” Id. In determining whether a genuine dispute regarding a material fact
2
exists, the evidence and the inferences drawn from the evidence “must be viewed in the
light most favorable to the party opposing the motion.” Adickes v. S. H. Kress & Co., 398
U.S. 144, 158–59, 90 S. Ct.1598, 1609, 26 L. Ed. 2d 142 (1970) (internal quotations and
citation omitted).
“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) (citation
omitted). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is any
evidence in the record from which a reasonable inference could be drawn in favor of the
opposing party, summary judgment is improper.” Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) (citations omitted). 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.
TCPA Violation
In his complaint May alleges that Asset violated the TCPA, which prohibits, among
other things, calls to cell phones made with an automated dialing system and calls to
residences using an artificial or prerecorded voice. 47 U.S.C. § 227. But May offers no
evidence in support of this claim; in fact, he does not even address Asset’s arguments for
dismissal. He has, in other words, abandoned this claim and it will therefore be dismissed.
See, e.g., Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (“Federal
courts may deem a claim abandoned when a party moves for summary judgment on one
ground and the party opposing summary judgment fails to address the argument in any
way.”)
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C.
FDCPA Violations
May also maintains that Asset violated the FDCPA. Congress intended the FDCPA
to provide a remedy to consumers against unfair and abusive debt collection practices. The
FDCPA states: “It is the purpose of this subchapter to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively disadvantaged, and to promote
consistent State action to protect consumers against debt collection abuses.” 15 U.S.C.
§ 1692(e). May asserts that Asset violated several provisions of the FDCPA, including
Sections 1692d, 1692d(5),1692e,1692e(2), 1692e(10), and 1692f. The substance of these
claims – including the Experian credit report, the allegedly improper phone calls, and the
exempt status of his debt – will be discussed below.
1.
Experian report
May stopped making payments on his Providian credit card in 2006. But a June
2010 Experian credit report incorrectly identified the subject debt as “past due as of May
2010.” (June 22, 2010 Experian Report; attached as Ex. “C” Kimmel Decl.; Docket No. 383.) May contends that this error adversely affected his credit score. He further argues that
Asset should be liable for this error because it “verified” the Experian report in February
2010. In support of this contention, May points to the Experian report itself, which indicates
that “[t]his item was verified and updated on Feb 2010.” (Sic). May therefore appears to
assume that it was Asset who verified the account, and he contends that this constitutes
a “false and misleading statement” in violation of Sections 1692e, 1692e(2), and 1692e(10)
of the FDCPA. But there are several shortcomings with this theory of liability.
First, there is no evidence demonstrating it was Asset who verified the account in
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February 2010. For its part, Asset claims it was not responsible for that verification. May
asks this Court to assume that it was Asset based on a cryptic notation on the report. But
it is May’s burden to elicit some evidence supporting his claim. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (“One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported
claims . . . .”). He offers none.
Second, May provides no support for his argument that Asset’s alleged verification
can serve as a violation of the FDCPA. Instead, May relies on an ambivalent statement,
in gratis dictum, from the Northern District of Illinois. The court in Kohut v. Trans Union
LLC, wrote that “if a collection agency knowingly reports inaccurate information to a
consumer reporting agency in violation of the F[air] C[redit] R[eporting] A[ct], it is unclear
(because this issue is not before the court) whether the collection agency could also be
liable under §§ 1692e and 1692e(10) of the FDCPA for using false, deceptive, or
misleading means to collect a debt.” No. 04 C 2854, 2004 WL 1882239, at *3 (N.D. Ill. Aug.
11, 2004) (parenthesis in original).2 Although the court raises the possibility of FDCPA
liability, this is not a precedential finding on which May can rely.
Finally, even assuming, first, that Asset did verify the account, and second, that
these facts could support a claim under the FDCPA, it would be barred by the statute of
limitations. An action to enforce liability created under the FDCPA must be commenced
within one year of the violation. 15 U.S.C. § 1692k(d). May filed this action on June 21,
2011; thus his claim must have accrued on or after June 21, 2010. But the verification,
2
May does not allege that Asset violated the Fair Credit Reporting Act, 15 U.S.C. § 1681.
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which served as the alleged violation, occurred sometime in February 2010, well before
that date. Whatever claim May might have must therefore must be dismissed as time
barred.
2.
Numerous calls, and threats of a lawsuit and the sheriff
May’s most salient accusation is that he received a phone call in which, in May’s
words, “the guy said who he was, from Asset Acceptance. He said, has the sheriff's office
been to your door yet? Or today I think. Something like that. And I said no. He says, well,
we're -- we filed in court against you, and if the sheriff hasn't been there today, he'll be
there shortly.” (May Dep. at 35; Docket No. 38-1.) May also generally alleges that Asset
called him numerous times in an effort to harass and annoy him.
In support of its motion, Asset argues that May’s claim regarding potential legal
action should be dismissed because it was not identified in May’s complaint and, in any
event, is time barred. Additionally, Asset argues that this Court should depart from the
general rule that resolutions of credibility should be left to the jury and conclude that no
reasonable jury could credit May’s verison of the events.
As initial matter, although May did not raise the allegation regarding legal action and
the sheriff in his complaint, and although he is not entitled to amend his complaint though
his deposition or opposition to summary judgment, see Gomez v. City of New York, No. 09
CIV. 620, 2012 WL 1514868, at *4 (E.D.N.Y. Apr. 30, 2012), “an issue presented for the
first time in a motion for summary judgment may be considered and treated as an
amendment of the complaint,” Neri v. Coughlin, No. 92 CIV. 7890 (SS), 1993 WL 464687,
at *7 (S.D.N.Y. Nov. 9, 1993) (Sotomayor, J.) (emphasis added). Since Asset received
notice of this claim at May’s deposition and because it was able to respond to it in its reply
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memorandum, this Court finds that Asset has suffered no undue prejudice – it will consider
the issue as properly submitted. See id.; 10A Wright & Miller, et al., Federal Practice &
Procedure § 2722 (3rd ed. 2012) (“In addition to the pleadings, Rule 56(c) expressly
provides that the court may make use of depositions on a summary-judgment motion.”).
So considered, this Court must also reject Asset’s contention that the claim is time
barred. May is unable to precisely identify the date when he received the call about
potential legal action and the sheriff. Asset suggests that it might have occurred outside
the limitations period. But May’s most concrete statement places the call in August of 2010,
which would be within the limitations period. (May Dep., at 48.) Although Asset contends
that it placed only one call (on September 2, 2009, outside the limitations period), May
obviously disputes this contention. The factual dispute precludes summary judgment on
this ground. See Overall v. Estate of Klotz, 52 F.3d 398, 403 (2d Cir. 1995) (“Because the
statute of limitations is an affirmative defense, the defendant bears the burden of
establishing by prima facie proof that the limitations period has expired since the plaintiff's
claims accrued”); Estate of Mantle v. Rothgeb, 537 F. Supp. 2d 533, 540–41 (S.D.N.Y.
2008) (denying motion for summary judgment because question of fact existed regarding
whether plaintiff’s action was barred by the statute of limitations).
May’s version of the events is indeed suspect, however. Aside from the Experian
report, May’s lone factual FDCPA allegation in his complaint is that Asset “made repeated
telephone calls to Plaintiff’s cellular telephone, leaving voice messages on his answering
machine.” (Compl., ¶ 26.) This representation is repeated in response to Asset’s written
discovery requests. (See Docket No. 28-3.) Despite the fact that his complaint is based on
various phone calls and messages, May admitted at his deposition that Asset did not leave
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any messages on his phone:
Q. Did Asset Acceptance, in any of those other cell phone
calls, leave a message on an answering machine?
A. No, not to my recollection. . . .
Q. Okay. And then on May 3, your complaint, let's turn the
page to page 6 and look at paragraph 26.
A. Yup. Done.
Q. And is it a true statement that Asset Acceptance left voice
mail messages on your answering machine?
A. No, not to my recollection.
(May Dep., at 40, 60.) May also alleged in his complaint that Asset placed calls using an
automated telephone dialing system or a prerecorded voice, in violation of the TCPA. But
at his deposition, May testified that he spoke only with “human beings,” and that he had
no knowledge that Asset used an automated dialing system. (May Dep., at 53–54.) Further,
May is unable to state precisely when or exactly how many phone calls he received from
Asset, stating only that he is sure that he must have received numerous phone calls
because they prompted him to write several letters to Asset. May also relies exclusively on
his testimony; the only other evidence is contradictory: as noted above, Asset’s business
records show that Asset placed only one call to May, on September 2, 2009. (Proctor
Decl., ¶ 8; Docket No. 29.)
Generally, “[c]redibility assessments, choices between conflicting versions of the
events, and the weighing of evidence are matters for the jury, not for the court on a motion
for summary judgment.” Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997). There is no
question that the parties have presented conflicting version of events, and as such,
summary judgment would generally be improper. But Asset argues that this Court should
employ an exception to that rule. The Second Circuit has recognized such an exception
where, despite the presence of conflicting versions of events, summary judgment would
8
remain proper if there is “nothing in the record to support plaintiff's allegations other than
plaintiff's own contradictory and incomplete testimony.” Jeffreys v. City of New York, 426
F.3d 549, 555 (2d Cir. 2005). This Jeffreys exception is, however, a “narrow” one and
“district courts should not engage in searching, skeptical analyses of parties' testimony in
opposition to summary judgment.” Rivera v. Rochester Genesee Reg'l Transp. Auth., 702
F.3d 685, 693 (2d Cir. 2012). In fact, “if there is a plausible explanation for discrepancies
in a party's testimony, the court considering a summary judgment motion should not
disregard the later testimony because an earlier account was ambiguous, confusing, or
simply incomplete.” Jeffreys, 426 F.3d at 555 n. 2.
Although May’s assertions are sometimes contradictory and inconsistent, this Court
finds that the inconsistencies are not so contradictory as to enable it to encroach on the
jury’s provenance of credibility determination. Throughout the pendency of this case, May
has alleged that Asset has made numerous harassing phone calls in violation of the
FDCPA. And, although not present in the complaint, May has never contradicted his
statement that Asset once threatened to send a sheriff to his home. This is unlike the
plaintiff in Jeffreys, whose “account of the incident at his deposition differed on all points
from several accounts that [he] gave shortly after the incident happened.” Rivera, 702 F.3d
at 695. “As another district court has put it, the plaintiff's story in Jeffreys was ‘spectacularly
outlandish’” and “[t]he Jeffreys court itself stated that it would require a ‘suspension of
disbelief’ for a jury to credit the plaintiff's allegations.” Moore v. Casselberry, 584 F. Supp.
2d 580, 586 (W.D.N.Y. 2008) (quoting Brown v. City of Oakland, No. C03-1141, 2006 WL
1760747, at *8 (N.D. Cal. June 27, 2006); Jeffreys, 426 F.3d at 555). Moreover, the plaintiff
in Jeffreys contradicted himself on his principal allegation – that the police threw him out
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of a third story window (he initially said that he jumped out). Jeffreys, 426 F.3d at 551–52.
Here, there is no question that May’s complaint differs from his deposition testimony,
but it does not “differ on all points.” And May never contradicted himself on the foundational
allegations of his claim. Though he retracted his statement regarding voice messages and
abandoned his TCPA claim, on the larger issues, including the frequency of the calls and
the accusation regarding the sheriff, May has been consistent. Though his testimony is
largely self-serving and unsupported by other evidence – such as call logs – it is up to the
jury to determine whether to believe him.3 See, e.g., Moore, 584 F. Supp. 2d at 587 (“In
short, although the credibility of plaintiff's testimony concerning the alleged assault is
certainly inconsistent with other evidence and is subject to serious question, it is not so
blatantly false that the Court may simply reject it as a matter of law”); Johnson v. Niehus,
No. CV 105-125, 2007 WL 1185675, at *9 (S.D. Ga. Apr. 18, 2007) (although “Plaintiff's
testimony . . . [wa]s difficult to square with the evidence of record,” that testimony was “not
so outrageous or implausible that no reasonable juror could believe . . . his testimony”).
Although this Court will not weigh the credibility of May’s allegation, it still must
determine whether, if credited, the allegations would constitute a violation fo the FDCPA.
The alleged threat regarding a potential lawsuit and a visit from the sheriff would constitute
such a violation. Section 1692e(5) of the FDCPA prohibits a threat of legal action that “is
not intended to be taken.” Similarly, Section 1692e(4) prohibits “[t]he representation or
implication that nonpayment of any debt will result in [] arrest . . . unless such action is
3
Asset notes that May has not presented any evidence – particularly in the form of a call history –
from his cellular provider. Even if this docum entation exists and even if May has an ongoing duty to
provide it (as Asset argues), Asset’s recourse is a m otion to com pel, not a grant of sum m ary judgm ent. To
date, Asset has filed no such m otion, and May is entitled to rely on his own testim ony.
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lawful and the debt collector or creditor intends to take such action.” Finally, Section
1692e(7) prohibits “[t]he false representation or implication that the consumer committed
any crime . . . .” Asset does not contend that it actually intended to file a lawsuit. To be
sure, no lawsuit was commenced and no sheriff appeared. As such, the claims relevant
to this accusation are viable.
The same is true regarding the number of calls May received. May contends that
Asset violated Sections 1692d and 1692d(5) by calling him numerous times. Section 1692d
provides that “[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.” Section 1692d(5) further prohibits a debt collector from “causing a telephone to ring
. . . repeatedly or continuously with intent to annoy, abuse, or harass.” Although May is
unable to identify the number of calls he received, this does not compel a conclusion, as
Asset argues, that it did not intend to harass or annoy May. See e.g., Moore v. Firstsource
Advantage, LLC, 07-CV-770, 2011 WL 4345703 (W.D.N.Y. Sept. 15, 2011) (genuine issue
of material fact exists where plaintiff alleges multiple calls despite no clarification about the
frequency with or pattern in which the calls were made). In addition to his testimony that
Asset continued to call him after he requested that the calls cease, he also alleges that
Asset once called him back within “minutes” after hanging up the phone. (May Dep., at
44–45). This is also a viable claim under Section 1692d; indeed “[a] jury must determine
the motivation behind this call and whether it violated the FDCPA.” Moltz v. Firstsource
Advantage, LLC, No. 08-CV-239S, 2011 WL 3360010, at *3 (W.D.N.Y. Aug. 3, 2011) (jury
may infer intentional harassment when a collector immediately recalled a debtor); see
Conover v. BYL Collection Services, LLC, No. 11-CV-6244P, 2012 WL 4363740, at *6
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(W.D.N.Y. Sept. 21, 2012) (“[H]arassment may be found where a debt collector
immediately phones a debtor after the debtor has hung up or continues to call after the
debtor has requested that the debt collector stop calling.”).
May’s Section 1692f claim, however, must be dismissed. Section 1692f simply
“allows the court to sanction improper conduct that the FDCPA fails to address
specifically.” Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643, 667 (S.D.N.Y. 2006) (quoting
Adams v. Law Offices of Stuckert & Yates, 926 F.Supp. 521, 528 (E.D. Pa.1996)). As
May’s allegations state claims under other sections of the FDCPA, May cannot sustain a
claim under Section 1692f.
3.
“Exempt” debt
May also alleges that Asset violated the FDCPA by trying to collect a debt despite
knowing that May had “exempt income” under New York’s Exempt Income Protection Act,
N.Y. C.P.L.R. §§ 5205 et seq. This law governs the enforcement and collection of money
judgments in New York state courts. But Asset is not seeking to execute a court-ordered
money judgment, and May’s attempt to connect this law to a FDCPA violation is entirely
unsupported in his papers. It is therefore rejected.
IV. CONCLUSION
Those claims regarding the number of phone calls May received and the lone
threatening phone call survive Asset’s motion for summary judgment. May can,
accordingly, pursue claims under 15 U.S.C. §§ 1692d, 1692d(5), 1692e, 1692e(4),
1692e(5), and 1692e(7). On these issues, triable issues of fact exist. But May’s other
claims are dismissed for the reasons discussed above.
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V. ORDERS
IT HEREBY IS ORDERED, that Defendant’s Motion for Summary Judgment (Docket
No. 26) is GRANTED in part and DENIED in part.
SO ORDERED.
Dated: March 28, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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