Gomez v. Oxford Law, LLC
Filing
32
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 1/5/15. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NINOUSKA GOMEZ,
Plaintiff
:
No. 3:14cv477
:
:
(Judge Munley)
v.
:
:
OXFORD LAW, LLC,
:
Defendant
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court are Plaintiff Ninouska Gomez’s (hereinafter
“plaintiff”) motion for summary judgment (Doc. 19) and Defendant Oxford
Law, LLC’s (hereinafter “defendant”) motion for judgment on the pleadings
(Doc. 14). The motions are fully briefed and ripe for disposition.
Background
The instant Fair Debt Collection Practices Act (hereinafter “FDCPA”)
action arose from defendant’s telephone contact with plaintiff. On
November 20, 2013, defendant attempted to collect a debt from plaintiff.
(Doc. 15, Joint Statement of Material Facts (hereinafter “SOF”) ¶¶ 3, 5).
Defendant called plaintiff and left a message using a prerecorded voice.
(Id. ¶ 5). The message stated:
[P]lease hang up or disconnect. If you are Gomez,
Vinouish please continue to listen to this message. There
will now be a three second pause in this message. By
continuing to listen to this message you acknowledge that
you are Gomez, Vinouish. You should listen to this
message in private as it contains personal and private
information. There will now be a short pause in this
message to allow you to listen to this message in private.
This is Casey Fox from Oxford Law, LLC. This
communication is from a debt collector. This is an
attempt to collect a debt and any information obtained will
be used for that purpose. Please contact me 215-5262600. Thank you.
This is a message for Gomez, Vinouish. If we have
reached the wrong number, we will remove your
information if you call us back at 215-526-2600. If you are
not Gomez, Vinouish, please hang up or disconnect. If
you are Gomez, Vinouish, please continue to listen to this
message. There will now be a three second pause in this
message. By continuing to listen to this message you
acknowledge that you are Gomez, Vinouish. You should
listen to this message in private as it contains personal
and private information. There will now be a short pause
in this message to allow you to listen to this message in
private.
This is Casey Fox from Oxford Law, LLC. This
communication is from a debt collector. This is an
attempt to collect a debt and any information obtained will
be used for that purpose. Please contact me 215-5262600.
(Id. ¶ 6).
Based upon this message, plaintiff filed a single-count complaint
contending defendant violated the FDCPA. The parties stipulated to the
underlying facts and each filed a dispositive motion: the defendant filed a
motion for judgment on the pleadings (Doc. 14) and the plaintiff filed a
motion for summary judgment (Doc. 19). The parties then briefed the
issues bringing the case to its present posture.
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Jurisdiction
As this case is brought pursuant to the FDCPA, 15 U.S.C. § 1692 et
seq. and the Telephone Consumer Protection Act (hereinafter “TCPA”), 47
U.S.C. § 227, the court has jurisdiction under 28 U.S.C. § 1311 (“The
district court shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”).
Legal Standard
Defendant filed a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c), which provides that “[a]fter the
pleadings are closed–but early enough not to delay trial–a party may move
for judgment on the pleadings.” FED. R. CIV. P. 12(c). Under Rule 12(c),
judgment should be granted where:
the movant clearly establishes that no material issue of
fact remains to be resolved and that he is entitled to
judgment as a matter of law. In considering a motion for
judgment on the pleadings, the trial court is required to
view the facts presented in the pleadings and the
inferences to be drawn therefrom in the light most
favorable to the nonmoving party. In this fashion the
courts hope to insure that the rights of the nonmoving
party are decided as fully and fairly on a rule 12(c) motion,
as if there had been a trial.
Inst. for Scientific Info., Inc. v. Gordon & Breach Sci. Publishers, Inc., 931
F.2d 1002, 1004 (3d Cir. 1991) (citing Society Hill Civic Ass’n v. Harris,
632 F.2d 1045, 1054 (3d Cir. 1980); 5C CHARLES A. WRIGHT & ARTHUR R.
3
MILLER, FED. PRACTICE
AND
PROCEDURE, § 1367 at 205 (3d ed. 2004));
see also Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005)
(finding that under Rule 12(c) “[j]udgment will not be granted unless the
movant clearly establishes there are no material issues of fact, and he is
entitled to judgment as a matter of law.”).
Additionally, plaintiff filed a motion for summary judgment. Granting
summary judgment is proper “‘if 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 matter of law.’” See Knabe v.
Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting FED. R. CIV. P.
56(c)). “[T]his standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949
(3d Cir. 1990). The burden is on the moving party to demonstrate that the
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evidence is such that a reasonable jury could not return a verdict for the
non-moving party. Anderson, 477 U.S. at 248. A fact is material if it might
affect the outcome of the suit under the governing law. Id. Where the
non-moving party will bear the burden of proof at trial, the party moving for
summary judgment may meet its burden by establishing that the
evidentiary materials of record, if reduced to admissible evidence, would
be insufficient to carry the non-movant’s burden of proof at trial. Celotex
v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its
burden, the burden shifts to the non-moving party, who must go beyond its
pleadings, and designate specific facts with affidavits, depositions,
admissions, or answers to interrogatories demonstrating that there is a
genuine issue for trial. Id. at 324.
Discussion
As noted above, plaintiff brings suit pursuant to the FDCPA, which
Congress enacted to address “abusive, deceptive, and unfair debt
collection practices.” 15 U.S.C. § 1692(a). The purpose of the law is “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
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U.S.C. § 1692(e).1
In the instant action, the parties agree plaintiff is a “consumer” and
defendant is a “debt collector” under the FDCPA. (SOF ¶¶ 1,2). The
parties further agree defendant called plaintiff and left a message using a
prerecorded voice while attempting to collect a debt from plaintiff. (Id. ¶¶
3-5). Finally, the parties agree on the content of the debt collection
message. (Id. ¶ 6). The sole issue for the court to resolve is whether
defendant’s message violated the FDCPA.
A debt collector violates the FDCPA when it “threat[ens] to take any
action that cannot legally be taken or that is not intended to be taken.” 15
U.S.C. § 1692e(5) (hereinafter “section 1692e(5)”). To establish a claim
under section 1692e(5), the Third Circuit Court of Appeals has held that a
plaintiff must demonstrate the debt collector threatened to take an action
that could not legally be taken. Brown v. Card Serv. Ctr., 464 F.3d 450,
455 (3d Cir. 2006); see also Rosenau v. Unifund Corp., 539 F.3d 218,
222 n.3 (3d Cir. 2008) (noting that section 1692e(5) prohibits a debt
collector from threatening “to take any action that cannot legally be taken
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If a debt collector fails to comply with the FDCPA, the consumer
may bring a civil action and obtain any actual damages that person has
sustained and statutory damages not to exceed $1,000. 15 U.S.C.
§ 1692k. A successful consumer may also be awarded the costs of the
action and a reasonable attorney’s fee. Id.
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or that is not intended to be taken.”).
Plaintiff contends section 1692e(5) prohibits two distinct types of
conduct: (1) threats to take action that cannot be legally taken and (2)
illegal acts. Here, plaintiff does not assert that defendant’s message is a
threat to take action that cannot legally be taken. (Doc. 20, Pl.’s Br. in
Supp. Mot. for Summ. J. at 4-6; Doc. 24, Pl.’s Reply Br. at 2). Rather,
plaintiff claims defendant’s message is an illegal act.
Specifically, defendant’s message is an illegal act because it
violates the Telephone Consumer Protection Act (hereinafter “TCPA”), 47
U.S.C. § 227. Pursuant to the Telephone Consumer Protection Act
(“TCPA”), it is unlawful for any entity to place a telephone call using a
prerecorded voice unless the caller states at the beginning of the
message the identity of the business, individual, or other entity that is
responsible for the incoming call.2 47 U.S.C. § 227(d)(3)(A).
In the instant matter, defendant fails to identify the caller at the
beginning of the message. (SOF ¶ 6). Instead, defendant identifies itself
in the seventh sentence of the message. (Id.) Therefore, plaintiff argues,
2
The TCPA provides that “all artificial or prerecorded telephone
messages (i) shall, at the beginning of the message, state clearly the
identity of the business, individual or other entity initiating the call . . . .” 47
U.S.C. § 227(d)(3).
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defendant’s failure to identify itself at the beginning of the message is an
illegal act. Because this illegal act occurred during the collection of a
debt, defendant has violated section 1692e(5)’s prohibition against illegal
acts.3 The court disagrees.
Defendant’s message fails to trigger liability under section 1692e(5)
for two reasons. First, section 1692e(5)’s plain meaning applies only to
threats to take any action that cannot legally be taken or that is not
intended to be taken. Here, the message is devoid of any threat. The
message states in relevant part: “This is Casey Fox from Oxford Law,
LLC. This communication is from a debt collector. This is an attempt to
collect a debt and any information obtained will be used for that purpose.
Please contact me 215-526-2600.” (SOF ¶ 6). Defendant is not
threatening to institute a debt collection lawsuit. Defendant is not
threatening to garnish plaintiff’s wages. Rather, defendant is asking the
3
Even if the court accepts plaintiff’s argument that the message
violated the TCPA, defendant’s message is at most a technical violation.
Defendant’s message contains introductory sentences to comply with the
FDCPA. Specifically, the FDCPA provides that “[e]xcept as provided in
section 1692b of this title [relating to obtaining location information] . . . a
debt collector may not communicate, in connection with the collection of
any debt, with any person other than the consumer[.]” 15 U.S.C. §
1692c(b). It appears that the purpose of the introductory comments is to
ensure that no one but the debtor listens to the message about the debt.
Thus, the defendant “violated” the TCPA to comply with the FDCPA.
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plaintiff to call it back.
Second, even if the court were to construe section 1692e(5) to
include both threats and illegal acts, defendant’s technical violation of the
TCPA–the illegal act–is not the type of illegal act the FDCPA prohibits.
Courts to have addressed this issue have all held that the illegal act
pertained to the filing of a lawsuit. See LeBlanc v. Unifund CCR Partners,
601 F.3d 1185, 1193, 1195-98 (11th Cir. 2010) (noting that liability could
arise from a debt collector’s failure to register as a debt collector when the
debt collector has indicated that a lawsuit will be filed if the plaintiff fails to
respond within a specific amount of time); Poirier v. Alco Collections, Inc.,
107 F.3d 347, 350-51 (5th Cir. 1997) (finding that defendant’s actions in
filing suit against plaintiff constituted unauthorized practice of law and
therefore, was an action that could not legally be taken against the
plaintiff); Bradsdhaw v. Hilco Receivables, LLC, 765 F. Supp. 2d 719, 72930 (D. Md. 2011) (holding that defendant’s filing of lawsuits against
plaintiffs constituted “a threat to take . . . action that cannot legally be
taken” in contravention of section 1692e(5)); Foster v. D.B.S. Collection
Agency, 463 F. Supp. 2d 783, 803-05 (S.D. Ohio 2006) (indicating that
defendant’s filing of debt collection lawsuits, when plaintiff’s accounts
were improperly assigned, constituted unauthorized practice of law and
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therefore, was an action that could not legally be taken against plaintiff);
Russey v. Rankin, 911 F. Supp. 1449, 1454 (D.N.M. 1995) (stating that a
debt collector’s letter threatening to file a collection lawsuit, when debt
collector could not file a lawsuit in its own name, was an action that could
not legally be taken).
Another court noted that a debt collector triggers liability pursuant to
section 1692e(5) when it moved for default judgment absent the legal
authority to do so. See Harrington v. CACV of Colo., LLC, 508 F. Supp.
2d 128, 136 (D. Mass. 2007) (noting that defendant’s fraudulent motion for
default judgment is a “threat to take action that cannot legally be taken” in
violation of section 1692e(5)).
Finally, courts have determined that liability under section 1692e(5)
may arise when a debt collector files and serves a writ of garnishment.
See Sprinkle v. SB&C Ltd., 472 F. Supp. 2d 1235, 1238, 1247 (W.D.
Wash. 2006) (stating that serving a writ of garnishment on an active duty
service member’s bank, while the service member was deployed to the
Middle East, was an action that could not legally be taken under section
1692e(5)); Marchant v. U.S. Collections W., Inc., 12 F. Supp. 2d 1001,
1004-06 (D. Ariz. 1998) (holding that the filing of a writ of garnishment by
an individual not authorized to practice law constituted a threat to take
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action that cannot be legally taken pursuant to section 1692e(5)).
In short, no court has extended section 1692e(5)’s “illegal act”
language to a technical violation of another law. Therefore, viewing the
facts presented in the pleadings in the light most favorable to plaintiff, the
defendant has established that no material issue of fact remains to be
resolved, and it is entitled to judgment as a matter of law of plaintiff’s
FDCPA claim.
Conclusion
For the above-stated reasons, the court will grant defendant’s
motion for judgment on the pleadings and deny plaintiff’s motion for
summary judgment. While skillfully and artfully presented, plaintiff’s cause
of action fails to establish a threat to take an action that cannot legally be
taken under 1692e(5). An appropriate order follows.
Date: 01/05/15
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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