JONES v. SOUTHWEST CREDIT SYSTEMS, L.P.
MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS DENIED; ETC.. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 10/18/17. 10/18/17 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SOUTHWEST CREDIT SYSTEMS,
October 18, 2017
Plaintiff Blair Jones brings this action against Defendant Southwest Credit Systems,
alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et
seq. 1 (Doc. No. 1.) Defendant now moves for summary judgment. (Doc. No. 14.) For reasons
that follow, the Court will deny Defendant's Motion for Summary Judgment (Doc. No. 29).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a consumer who resides in Philadelphia, Pennsylvania. (Doc. No. 1
Defendant Southwest Credit Systems ("SWC") is a Pennsylvania collection agency and is a
"debt collector" under the FDCPA. (Id.
10; see also Doc. No. 14-3 ill.) In February2 2016,
In his Complaint, Plaintiff alleges violations of the Fair Debt Collection Practices Act
("FDCPA") and the Telephone Consumer Protection Act ("TCPA"). (Doc. No. 1.) In his
Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Doc.
No. 16-1), Plaintiff notes that as of September 14, 2017, he is dropping the TCPA claim
because "the cost of an expert to disprove Defendant's affidavits would likely exceed
possible TCPA recovery." (Id. at 1-2.) Accordingly, the Court will only discuss hereafter the
Plaintiff's Complaint alleges that Defendant placed calls to him "[b]eginning in early to midJanuary 2016 and continuing through February 2016" (Doc. No. 1 ii 14). However, in his
SWC repeatedly had a representative call Plaintiff in an attempt to collect a debt arising from his
Comcast cable subscription. (Doc. No. 1 iii! 13-15.) He alleges that he received ten calls over
eighteen days which, he argues, was harassment in violation of the FDCPA. (Doc. No. 16-1 at
4.) In his Complaint, Plaintiff states that he received calls consisting of pre-recorded messages
followed by a live caller and, though he instructed the caller to stop calling him, the calls
He further alleges that Defendant failed to send him written
correspondence advising him of his rights to dispute the Comcast debt and to request verification
of the debt within five days of its initial communication with him, as required by § l 692(g)(2) of
the FDCP A. (Id.
5-6.) Plaintiff also claims that Defendant continued to call and harass
him despite his demand for the calls to stop. (Doc. No. 1 i! 23.)
On August 31, 2017, Defendant filed a Motion for Summary Judgment, contending that it
had not violated the FDCPA. (Doc. No. 14-2.) In its Motion, Defendant claims that on February
6, 2016, it sent Plaintiff a collection letter informing him that his Comcast account-delinquent
in the amount of $163.44-had been placed with Defendant for collection and included
information about the balance which was due and owing. (Id. at 4.) Defendant also asserts that
Plaintiff failed to present sufficient evidence to show that it had made calls with the intent to
harass, annoy, or abuse him. (Id. at 2.) Thereafter, on September 14, 2017, Plaintiff filed a
Response in Opposition to the Motion for Summary Judgment. (Doc. No. 16.) The Motion for
Summary Judgment is now ripe for review.
Response to Defendant's Statement of Material Facts (Doc. No. 16-3), he notes that
Defendant's representatives placed ten calls to his cellular telephone between February 4,
2016 and February 22, 2016, a period of eighteen days. (Id. i! 10.)
ST AND ARD OF REVIEW
Granting summary judgment is an extraordinary remedy.
Summary judgment is
appropriate "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." Fed. R. Civ. P. 56(a). In reaching this
decision, the court must determine "whether the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits show that there is no genuine issue of material
fact and whether the moving party is therefore entitled to judgment as a matter of law."
Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012) (citing Celotex Com. v.
Catrett, 477 U.S. 317, 322 (1986)). A disputed issue is "genuine" only if there is a sufficient
evidentiary basis on which a reasonable factfinder could find for the non-moving party. Kaucher
v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A factual dispute is "material" only if it might affect the outcome of the
suit under governing law. Doe v. Luzerne Cty., 660 F.3d 169, 175 (3d Cir. 2011) (citing Gray v.
York Papers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)). The Court's task is not to resolve
disputed issues of fact, but to determine whether there exist any factual issues to be tried.
Anderson, 477 U.S. at 247-49.
In deciding a motion for summary judgment, the Court must view the evidence and all
reasonable inferences from the evidence in the light most favorable to the non-moving party.
Macfarlan, 675 F.3d at 271; Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir.
Whenever a factual issue arises which cannot be resolved without a credibility
determination, at this stage the Court must credit the non-moving party's evidence over that
presented by the moving party. Anderson, 477 U.S. at 255. If there is no factual issue and if
only one reasonable conclusion could arise from the record regarding the potential outcome
under the governing law, summary judgment must be awarded in favor of the moving party. Id.
A. A Genuine Disputed Issue of Material Fact Exists as to Whether Defendant
Employed Tactics Designed to Embarrass, Harass, Upset, or Otherwise Harass
Congress enacted the FDCPA to provide a remedy for victims of abusive, deceptive, and
unfair collection practices by debt collectors. Lesher v. Law Offices of Mitchell N. Kay, P.C.,
650 F.3d 993, 996-97 (3d Cir. 2011). The purpose of the statute was to address inappropriate
tactics employed by debt collectors, oftentimes leading to "personal bankruptcies, to marital
instability, to the loss of jobs, and to invasions of individual privacy." Campuzano-Burgos v.
Midland Credit Mgmt. Inc., 550 F.3d 294, 298 (3d Cir. 2008).
Section 1692d of the FDCPA 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." 15 U.S.C. § 1692d. Moreover, § 1692d(5) specifies
that "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" is a
violation of the provision. 15 U.S.C. § 1692d(5). Generally, what constitutes harassment or
abuse is a question that must be answered by the jury. Hoover v. Monarch Recovery Mgmt., 888
F. Supp. 2d 589, 596 (E.D. Pa. Aug. 24, 2012) (citing Regan v. Law Offices of Edwin A.
Abrahamsen & Assocs., P.C., 2009 WL 4396299 (E.D. Pa. Dec. 1, 2009).
determining whether such harassment exists, an inquiry must be made not only into the volume
of the calls made, but also into the pattern or frequency of the calls. Shand-Pistilli v. Prof'l
Account Servs. Inc., 2010 WL 2978029 (E.D. Pa. Jul. 26, 2010). However, under the FDCPA, a
plaintiff is not permitted to present "bizarre or idiosyncratic interpretations of collection notices"
and is presumed to possess "a basic level of understanding and willingness to read with care."
Wilson v. Quadramed Corp., 225 F.3d 250 (3d Cir. 2000).
Plaintiff alleges that Defendant caused his phone to ring continuously, and that this
conduct constitutes harassment. He claims that after Defendant's representatives contacted him
twice on February 5, 2016, Plaintiff agitatedly informed Defendant's representative during a
February 6, 3 2016 call, saying "why you calling ... I don't wanna know your name ... what do you
want from me." (Id. at 5-6.) During this call, he refused to provide any information when asked
by the caller and abruptly hung up. (Id.) In Plaintiff's view, his incensed tone and actions
conveyed that he wanted the calls to end. Despite this, Defendant's representatives called him
four times on February 11 2016, three times on February 15, 2016, and once on February 19,
2016. (Doc. No. 16-1 at 5.) Many of these calls were made in rapid succession of one another.
When Defendant continued to call after February 5, 2016, Plaintiff asserts that it was harassment.
Though Defendant does not dispute the amount of calls made, it does challenge
Plaintiff's assertion that it employed tactics designed to embarrass, upset, or otherwise harass
Furthermore, it claims that Plaintiff has provided an insufficient basis for his claim,
In his Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment,
Plaintiff refers to the various dates and times when Defendant's representatives called him:
February 5, 2016 (two calls); February 11, 2016 (four calls); February 15, 2016 (three calls);
February 19, 2016 (one call). (Doc. Nos. 16-1; 16-3.) In addition, he claims that
Defendant's representatives also called him once on February 18, 2016 and again on
February 22, 2016, but Plaintiff hung up. (Doc. No. 16-1) He further states that he "angrily
called" Defendant's representatives on February 5, 2016 and February 8, 2016. (Id.)
Plaintiff mentions a February 6, 2016 call in his Memorandum of Law in Opposition to
Defendant's Motion for Summary Judgment (Doc. No. 16-1 at 5) during which the exchange
with Defendant's representative took place; however, in his Response to Defendant's
Statement of Material Facts in Support of Defendant's Motion for Summary Judgment, it
appears this exchange occurred during the February 8, 2016 call, which he initiated. (Doc.
No. 16-3 at 20.)
emphasizing his lack of recollection as to "whether [Defendant's] employees he spoke with were
men or women, the number of conversations he had with [Defendant's] personnel, or when,
specifically, his alleged discussions with [Defendant's] representations [sic] took place." (Doc.
No. 14-2 at 19.) Though Defendant is correct that calls to a debtor after he verbally requests that
they cease do not automatically trigger a violation of§ 1692d(5), there still may be a finding of
an intent to annoy when examining the frequency of the calls.
See Shand-Pistilli v. Prof'l
Account Servs. Inc., 2010 WL 2978029 (E.D. Pa. July 26, 2010) (holding that an unspecified
amount of "continuous calls" was sufficient to plead a plausible claim for relief under section
1692d(5)); see also Carr v. NCO Fin. Sys., Inc., 2011 WL 6371899 (E.D. Pa. Dec. 20, 2011)
(finding that a pleading containing facts showing that a defendant debt collector placed nine calls
in a period of approximately thirty days was sufficient to plausibly show that defendant caused
the telephone to ring with an intent to annoy or abuse).
Therefore, a genuine dispute exists as to whether Defendant intended to annoy, abuse, or
harass Plaintiff when calling him repeatedly regarding his debt collection notice.
B. A Genuine Disputed Issue of Material Fact Exists as to Whether Defendant
Presented Plaintiff with a Collection Notice.
In enacting the FDCPA, Congress sought to eliminate abusive debt collection practices
through another provision in the statute. To this end, Congress adopted "the debt validation
provisions of section 1692g" to guarantee that consumers would receive "adequate notice" of
their rights under the FDCPA. Caprio v. Healthcare Recovery Grp., LLC, 709 F.3d 142, 148 (3d
Cir. 2013). To provide consumers with "adequate notice" of their rights under§ 1692g(a), a debt
collector must include the following information in its initial communication to a debtor, or in a
communication to be sent within five days after the initial communication:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within
the thirty-day period that the debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of a judgment against
the consumer and a copy of such verification or judgment will be mailed to
the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day
period, the debt collector will provide the consumer with the name and
address of the original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a).
The purpose of the validation notice is to inform a debtor of his rights and obligations to
his creditors. Oppong v. First Union Mortg. Corp., 566 F. Supp. 2d 395, 400 (E.D. Pa. 2008),
aff'd 326 F.App'x. 663 (3d Cir. 2009).
Here, Plaintiff alleges that he never received such a notice or any written correspondence
whatsoever advising him of the debt, his rights to dispute the debt, and his ability to request
verification of the debt within five days of its initial communication with him, as required by §
1692g(a). (Doc. No. 1 ii 24.) Defendant asserts to the contrary that on February 6, 2016, it sent
Plaintiff a collection letter informing him that his Comcast account was placed with Defendant
for collection and provided detailed information regarding the amount due and owing. (Doc. No.
ii 34.) The collection letter also advised Plaintiff of his right to dispute the validity of the
debt or any portion thereof.
ii 35.) According to Defendant, the day after its initial
communication with Plaintiff, the letter was sent to his residence and it was never returned as
undeliverable. (Doc. No. 14-2 at 17-18.) The question of whether Defendant provided Plaintiff
with a collection notice directly is relevant to determining whether § 1692g(a) was violated.
Therefore, there is a genuine dispute of material fact between the parties on this issue.
For the foregoing reasons, Defendant's Motion for Summary Judgment (Doc. No. 14)
will be denied. An appropriate Order follows.
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