Smith v. Greystone Alliance, LLC

Filing 22

Opinion and Order. Plaintiff's unopposed Motion for Summary Judgment (Related doc # 21 ) is granted in part and denied in part. Plaintiff shall file an itemized list of his damages, supported by affidavit/declaration if the amount is for a sum certain, by 9/22/2015. If the damages determination will require a hearing, Plaintiff shall submit a recommended date for the hearing. Judge Christopher A. Boyko on 9/8/2015. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANIEL SMITH,
Plaintiff,
Vs.
GREYSTONE ALLIANCE LLC,
ET AL.,
Defendant.

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CASE NO. 1:14CV722
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Plaintiff Daniel Smith’s unopposed Motion for
Summary Judgment (ECF # 21). For the following reasons, the Court grants, in part, and
denies, in part, Plaintiff’s Motion.
According to Plaintiff, Defendant Greystone Alliance LLC (“Greystone”) is a debt
collector under the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”).
On February 21, 2014, Greystone called Smith to collect on a consumer debt owed by a
“Chris Smith.” Chris Smith is not related to Daniel Smith. On February 25, 2014, Smith
informed Greystone that he was not the debtor and Chris Smith could not be reached at
Daniel Smith’s phone number. Despite Plaintiff’s informing Greystone of the mistake,
Greystone continued to call Plaintiff on March 4, 11, 14 and 24th. On April 2, 2014, Plaintiff
filed suit against Greystone and several Doe Defendants for violations of the FDCPA, Ohio
Consumer Sales Practices Act and for Invasion of Privacy. On June 16, 2014, Greystone
filed its Answer to the Complaint. At a July 2014 Case Management Conference, the parties
agreed to Mediation through the Court’s Alternative Dispute Resolution department. On

October 31, 2014, Counsel for Greystone moved to withdraw for lack of payment. The Court
withdrew the referral for Mediation. After a status conference in December 2014, the Court
granted the Motion to Withdraw on the condition that Greystone’s counsel serve a copy of the
withdrawal order on Greystone. The Court granted Greystone’s counsel’s Motion to
Withdraw after counsel submitted proof of service of the Order on its client. The Court then
ordered Greystone to obtain new counsel within fourteen days of the Order. Greystone failed
to do so. Plaintiff then filed his Motion for Summary Judgment and Greystone has failed to
oppose it.
Smith has offered his declaration attesting to the fact that he informed Greystone he
was not the debtor and instructed them not to call him again. Despite being so informed,
Greystone called Smith four additional times. Smith also produced the call log of Greystone
indicating its call to Smith on February 25, 2014 was a “wrong number.” It further shows
additional calls to Smith thereafter.
FDCPA 15 U.S.C. § 1692d(5) reads:
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:
(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.
The Court finds Plaintiff has proven a violation of § 1692d entitling him to summary
judgment on Count I of his Complaint due to Greystone’s continued calls to Plaintiff even
after Greystone possessed the knowledge that Plaintiff was not the debtor. The Court denies
Plaintiff’s Motion for Summary Judgment for violation of § 1692f because the Court has
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already determined no genuine issue of fact exists as to Plaintiff’s claim for violation of §
1692d and Plaintiff is entitled to summary judgment as a matter of law. Because Greystone’s
acts are covered by §1692d Plaintiff cannot also bring a claim under § 1692f for the same
conduct. A Ҥ 1692f claim fails because Plaintiff has not identified any conduct that would
not be covered by a different FDCPA provision. Section 1692f ‘serves a backstop function,
catching those ‘unfair practices' which somehow manage to slip by §§ 1692d & 1692e.’
(Internal citation omitted). That is, Ԥ 1692f allows the court to sanction improper conduct
that the FDCPA fails to address specifically.’” Newton v. Portfolio Recovery Associates, LLC
2014 WL 340414, 10 (S.D.Ohio,2014).
Plaintiff is not entitled to summary judgment on his Ohio Consumer Sales Practices
Act claim under O.R.C. §1345.01, because Plaintiff has not demonstrated by any competent
evidence he is a consumer and Greystone is a supplier as defined by the statute.
The Court further finds Plaintiff is not entitled to summary judgment on his Invasion
of Privacy claim. “The tort of invasion of privacy was recognized in Ohio in the case of
Housh v. Peth (1956), 165 Ohio St. 35, 59 O.O. 60, 133 N.E.2d 340.” The court in Housh
outlined an Invasion of Privacy claim as follows:
The right of privacy is the right of a person to be let alone, to be free from
unwarranted publicity, and to live without unwarranted interference by the
public in matters with which the public is not necessarily concerned.
An actionable invasion of the right of privacy is the unwarranted appropriation
or exploitation of one's personality, the publicizing of one's private affairs with
which the public has no legitimate concern, or the wrongful intrusion into one's
private activities in such a manner as to outrage or cause mental suffering,
shame or humiliation to a person of ordinary sensibilities.”

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Howard v. City Loan and Sav. Co. 31 Ohio App.3d 193, 195 (Ohio App.,1986).
Plaintiff’s declaration states: “I am disabled. Greystone's calls caused me to feel
harassed, and I was angered and annoyed by the repeated calls regarding a debt that I do not
owe.” (Smith declaration at ¶ 10). Plaintiff’s declaration does not evidence “outrage, mental
suffering, shame or humiliation” so as to entitled him to summary judgment for a claim of
Invasion of Privacy under Ohio law.
Therefore, for the foregoing reasons, the Court grants, in part, Plaintiff’s Motion for
Summary Judgment on Count I of Plaintiff’s Complaint for violation of the FDCPA § 1692d.
The Court denies Plaintiff’s summary judgment on his remaining claims. Therefore, in light
of this ruling, Plaintiff shall file with the Court no later than September 22, 2015, an itemized
list of his damages, supported by affidavit/declaration if the amount is for a sum certain. If
the damages determination will require a hearing, Plaintiff shall submit a recommended date
for the hearing.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: September 8, 2015

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