WEBB v. GIANT EAGLE, INC. et al
Filing
39
MEMORANDUM OPINION re: 27 MOTION for Summary Judgment As to All Claims filed by ENVISION PAYMENT SOLUTIONS, INC. Signed by Judge William L. Standish on 5/31/2011. (md)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVNIA
LAURAN WEBB, individually
and on behalf of others
similarly situated,
Plaintiff,
vs.
Civil Action No.10-1414
ENVISION PAYMENT SOLUTIONS,
INC. ,
Defendant.
MEMORANDUM
I
In this civil action, Plaintiff, Lauran Webb ("Ms. Webb"),
asserts claims against Defendant, Envision Payment Solutions,
Inc.
("EPSI"), a debt collector, for violations of the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq.,
Pennsylvania's Fair Credit Extension Uniformity Act, 73 P.S.
§§
2270.1 et seq.
("FCEUA"), and Pennsylvania's Unfair Trade
Practices and Consumer Protection Law, 73 P.S. §§ 201-1 et seq.
("UTPCPL") . 1
EPSI has filed a motion for summary judgment under
Fed.R.Civ.p. 56.
For the reasons set forth below, the motion
will be granted.
IMS. Webb's claims under the FCEUA and UTPCPL also were asserted against Giant
Eagle, Inc. ("Giant Eagle").
However, in response to Giant Eagle's motion to
dismiss the claims pursuant to Fed.R.Civ.P. 12(b) (6) for failure to state a
claim upon which relief can be granted, Ms. Webb filed a notice of voluntary
dismissal as to Giant Eagle under Fed.R.Civ.P. 41(a) (1) (A) (il.
1
II
In summary
1
Ms. Webb/s complaint alleges the following
facts:
In June 2010 1 Ms. Webb visited a Giant Eagle grocery store
in Pittsburgh
items.
l
Pennsylvania and purchased several consumer
Ms. Webb paid for her purchases by means of two personal
checks - one for $30.00 and one for $39.90.
When the checks
were returned by Ms. Webb/s bank for insufficient funds
1
Giant
Eagle sent her personal and banking information to EPSI.
Thereafter
l
on October 11 2010 1 EPSI caused Ms. Webb/s bank
account to be charged through an Automated Clearing House in the
amount of the two checks issued to Giant Eagle in June 2010.
Ms. Webb never gave EPSI authorization to remove sums from
her bank account and neither EPSI nor Giant Eagle provided
notice to Ms. Webb that such action was going to be taken.
addition, Giant Eagle does not inform customers
1
In
either in
writing or visually, of the potential involvement of a third
party company in the event a check written by a customer for a
purchase is returned for insufficient funds.
III
In support of its summary judgment motion, EPSI has
submitted the declaration of Ruth Stayduhar, a Giant Eagle
employee (Docket No. 27 2), and the affidavit of Darla Lowe, an
employee of EPSI (Docket No. 27-3), which, in summary, state:
2
Giant Eagle operates supermarkets throughout the Pittsburgh
area.
As a courtesy, Giant Eagle offers a free personal check
cashing service to customers who have a Giant Eagle Advantage
Card. 2
(Docket No. 27-2,
~~
2-3).
Giant Eagle operates a supermarket on Wharton Street on the
South Side of Pittsburgh that is designated as Store #61.
The
Customer Service Desk of Store #61 is located at the front of
the store across from the cashier lanes.
On June 20, 2010, a
copy of Giant Eagle's Advantage Card Check Cashing Policy, which
is printed on 8W' x 14/1 yellow paper, was prominently posted in
two places at the Customer Service Desk of Store #61.
The first
sentence of Section XI of the policy states: "In the event that
your check is returned for insufficient or uncollected funds, we
may re-present your check electronically./1
~~
(Docket No. 27-2,
4-6, Exh. 1).
According to records kept in the ordinary course of Giant
Eagle's business, on June 20, 2010 at 3:42 p.m., Giant Eagle
cashed Check No. 5122 for Ms. Webb at lane 0036, which is the
Customer Service Desk of Store #61.
Nine minutes later, Giant
Eagle cashed Check No. 5123 for Ms. Webb at checkout Lane No.1
of Store #61.
(Docket No. 27-2,
~
8).
The Giant Eagle Advantage Card is Giant Eagle's customer loyalty program.
(Docket No.7, p. 1).
2
3
As part of its ordinary and regular business practices,
Giant Eagle keeps a record of checks that are returned for
insufficient funds at or near the time the checks are returned.
Giant Eagle's business records show that the two checks written
by Ms. Webb to Giant Eagle at Store #61 on June 20, 2010 were
returned for insufficient funds.
(Docket No. 27 2,
~
7, Exh.
2) •
Giant Eagle retains EPSI to re-present checks that are
written to Giant Eagle and returned for insufficient funds.
On
September 28, 2010, Giant Eagle referred the two checks written
by Ms. Webb that had been returned for insufficient funds to
EPSI for re-presentment, and EPSI caused the checks to be re
presented.
In the regular course of its business, EPSI makes
and keeps a record of letters mailed to debtors regarding their
returned checks.
Those records are kept at or near the time the
letters are mailed.
EPSI's records show that such a letter was
mailed to Ms. Webb on September 28, 2010.
The letter identified
the checks that had been returned, the amounts and dates of the
checks, the merchant to whom the checks had been written and the
reason the checks were returned.
The letter also included the
following statement in capital letters:
4
"YOUR CHECK(S) MAY BE
RE PRESENTED ELECTRONICALLY WITH ADDITIONAL FEES WHERE
APPLICABLE BY LAW."3
(Docket No. 27-3, "
2-7, Exhs. 1 and 2).
IV
Under Rule 56(a) of the Federal Rules of Civil Procedure,
"[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."
Fed.R.Civ.p. 56(a)i see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).4
To support an assertion that a fact cannot be,
or is genuinely, disputed, a party must (a) cite to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers or
other materials, or (b) show that the materials cited do not
establish the absence or presence of a genuine dispute, or (c)
show that an adverse party cannot produce admissible evidence to
support the fact.
Fed.R.Civ.P. 56(c) (1) (A) and (B).
If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required
3 The letter sent to Ms. Webb by EPSI on September 28, 2010 also included a fee
of $30.00 for each returned check. However, Ms. Webb's complaint does not
allege, and she has presented no evidence, that the fees were charged to her
bank account by EPSI.
4Amendments to Fed.R.Civ.P. 56 became effective on December 1, 2010. The
frequently cited standard for summary judgment is now set forth in Rule
56(a), rather than Rule 56(c). Although the wording of the standard has
changed slightly, i.e., the word "issue" was replaced with the word
"dispute," the change does not affect the substantive standard or the
applicability of prior decisions construing the standard. Advisory Committee
Notes to Fed.R.Civ.P. 56.
5
by Rule 56(c), the court may, among other things, grant summary
judgment if the motion and supporting materials
including the
facts considered undisputed - show that the movant is entitled
to it.
Fed.R.Civ.P. 56(e).
In this connection, the Court notes
that Ms. Webb has not submitted any materials to controvert the
facts established by EPSI through the declaration of Ms.
Stayduhar and the affidavit of Ms. Lowe and the exhibits
attached thereto.
v
Violations of the FDCPA
The declared purposes of the FDCPA include elimination of
abusive debt collection practices by debt collectors and
assurance that those debt collectors who refrain from using
abusive debt collection practices are not competitively
disadvantaged.
15 U.S.C.
§
1692(e).
FDCPA claims are evaluated
under the least sophisticated consumer standard which is less
demanding than one that inquires whether a particular debt
collection communication would mislead or deceive a reasonable
debtor.
"Nevertheless, the least sophisticated standard
safeguards bill collectors from liability for 'bizarre or
idiosyncratic interpretations of collection notices' by
preserving at least a modicum of reasonableness, as well as
'preserving a basic level of understanding and willingness to
read with care [on the part of the recipient) .'ff
6
Campuzano
Burgos v. Midland Credit Mgt., Inc., 550 F.3d 294, 298-99 (3d
Cir.2008), quoting Rosenau v. Unifund Corp., 539 F.3d 218, 221
(3d Cir.2008) .
i
Section 1692d of the FDCPA provides:
§
1692d.
Harassment or abuse
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:
(1) The use or threat of use of violence or other
criminal means to harm the physical person,
reputation, or property of any person.
(2) The use of obscene or profane language or language
the natural consequence of which is to abuse the
hearer or reader.
(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.
(6) "', the placement of telephone calls without
meaningful disclosure of the caller's identity.
15 U.S.C.
§
1692d(1) - (6) .
After consideration, the Court agrees with EPSI that representment of Ms. Webb's returned checks cannot be construed as
harassment under Section 1692d.
The Advantage Card Check
Cashing Policy posted at Giant Eagle's Store #61 on the date Ms.
Webb wrote the checks at issue specifically stated that checks
7
returned unpaid for insufficient funds may be re-presented
electronically, and, as noted by EPSI, even "[t]he least
sophisticated consumer could not expect that if she issued a
check returned for insufficient funds, it would never be re
presented for payment./I
(Docket No. 27-1, p. 7).
In sum, there
is no basis for a finding that EPSI harassed or abused Ms. Webb
by causing her returned checks to be re presented to the bank.
Under the circumstances, judgment will be entered in favor of
EPSI on Ms. Webb's claim under Section 1692d of the FDCPA.
ii
Section 1692g of the FDCPA provides in relevant part:
§
1692g.
Validation of debts
(a) Notice of debt; contents
Within five days after the initial communication with a
consumer in connection with the collection of any debt, a
debt collector shall, unless the following information is
contained in the initial communication or the consumer has
paid the debt, send the consumer a written notice
containing
(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
8
(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 uncontroverted evidence submitted by EPSI in support of
its motion for summary judgment shows that a validation of debt
notice complying with the requirements of Section 1692g(a) was
sent to Ms. Webb on September 28, 2010.
2).
(Docket No. 27-3, Exh.
Significantly, as noted by EPSI, Section 1692g(a) requires
only that the validation of debt notice be "sent" by a debt
collector.
The debt collector need not also establish actual
receipt by the debtor.
Mahon v. Credit Bureau of Placer County
Inc., 171 F.3d 1197 (9 th Cir. 1999).
(Docket No. 27, p. 8).
Accordingly, judgment also will be entered in favor of EPSI on
Ms. Webb's claim under Section 1692g of the FDCPA.
iii
Section 1692f of the FDCPA provides in relevant part:
§
1692f.
Unfair practices
A debt collector may not use unfair or unconscionable
means to collect or attempt to collect any debt. without
limiting the general application of the foregoing, the
following conduct is a violation of this section:
(1) The collection of any amount (including any
interest, fee, charge, or expense incidental to the
principal obligation) unless such amount is expressly
9
authorized by the agreement creating the debt or
permitted by law.
*
15 U.S.C.
§
*
*
1692f(1).
The prohibition in Section 1692f(1) precludes a debt collector
from adding any charge to the underlying debt unless that charge
is authorized by law or the agreement creating the debt.
F.T.C.
v. Check Investors, Inc., 502 F.3d 159, 166 (3d Cir.2007).
Ms.
Webb alleges that EPSI violated this section of the FDCPA by
causing her bank account to be debited in the absence of an
agreement authorizing such action.
After consideration, the
Court concludes that Ms. Webb's claim under Section 1692f(1) is
meritless.
As noted by EPSI, the agreements authorizing the two debits
of Ms. Webb's bank account were the checks she wrote to Giant
Eagle in June 2010: that is, in exchange for goods, services or
currency from Giant Eagle, Ms. Webb agreed to pay the sums of
$30.00 and $39.90.
The debits to Ms. Webb's bank account in
October 2010 were in the sums of $30.00 and $39.90.
There is no
allegation in the complaint, and no evidence was submitted in
opposition to EPSI's summary judgment motion, that Ms. Webb's
account was debited for any additional amounts representing
10
improper interest
I
fees, charges or expenses incidental to her
principal obligation to Giant Eagle. s
Further, Ms. Webb has failed to identify any authority for
the claim that she was entitled to notice by Giant Eagle that
EPSI would be re-presenting her checks.
8-10).
(Docket No. 27 1, pp.
As noted by EPSI, the argument that it was unfair or
unconscionable for any entity other than Giant Eagle to re
present her returned checks is "untenable because any business
that receives dishonored checks from consumers would be
hamstrung with collecting its own accounts despite an entire
industry specifically tailored to engage in such functions.
(Docket No. 38, p. 6).
1I
Based on the foregoing, judgment also
will be entered in favor of EPSI on Ms. Webb's claims under
Sections 1692f and 1692f(1) of the FDCPA.
Violation of the FCEUA
The FCEUA "establishes what shall be considered ... unfair
or deceptive acts or practices with regard to the collection of
debts" in Pennsylvania.
73 P.S.
§
2270.2.
A debt collector
In her brief in opposition to EPSI's motion for summary judgment, Ms. Webb
asserts that she was "forced to pay fees associated with the transaction, to
Envision, when she was told Envision already had her account information and
would take the fee anyway, with or without her consent."
(Docket No. 33, p.
9). As noted by EPSI, the foregoing assertion does not raise an issue of
fact because Ms. Webb has failed to submit any evidentiary materials to
support the assertion.
(Docket No. 38, p. 8).
In any event, the Court notes
that Giant Eagle's Advantage Card Check Cashing Policy specifically states:
"The authorization of service charges and processing fees as permitted by
state law may be debited from the same account by paper draft or
electronically at our option."
(Docket No. 27-2, Exh. 1).
5
11
violates the FCEUA if the debt collector violates any of the
provisions of the FDCPA. 6
73 P.S.
§
2270.4.
Ms. Webb alleges that EPSI violated the FCEUA by making
false, misleading or deceptive representations although she does
not identify the specific representations that are the subject
of this claim.
(Docket No. I,
~
21).
To the extent this claim
may be based on the letter sent to Ms. Webb by EPSI on September
28, 2010, the Court notes that she has failed to submit any
evidence showing that any statement in the letter was false,
misleading or deceptive.
Because the allegations supporting Ms.
Webb's claim against EPSI under the FCEUA are identical to the
allegations supporting her FDCPA claim, and because the Court
has determined the uncontroverted evidence establishes that
EPSI's conduct did not violate the FDCPA, EPSI also is entitled
to judgment as a matter of law on Ms. Webb's FCEUA claim. 7
The FCEUA also prohibits creditors from engaging in unfair or deceptive acts
or practices and specifically sets out acts and practices by creditors that
violate the statute. One of those provisions states: " ... , without the prior
consent of the consumer given directly to the creditor ... , a creditor may
not communicate, in connection with the collection of any debt, with any
person other than the consumer, his attorney, a consumer reporting agency if
otherwise permitted by law, a debt collector, the attorney of the debt
collector or the attorney of the creditor."
73 P.S. § 2270.4(3). Thus, as
noted by Giant Eagle in the brief submitted in support of its motion to
dismiss, its retention of EPS! to re-present Ms. Webb's two returned checks
is, in fact, contemplated as a normal step in collecting an unpaid debt.
(Docket No.7, p. 7).
7Although the issue was not raised by EPS!, it does not appear that the FCEUA
applies to checks that are returned for insufficient funds. As noted by
Giant Eagle in its motion to dismiss the claims asserted against it by Ms.
Webb, the FCEUA applies to extensions of credit and this case involves a cash
transaction.
(Docket No.7, pp. 4-6).
6
12
Violation of the UTPCPL
The purpose of pennsylvania's UTPCPL is to protect the
public from fraud and deceptive business practices.
Gardner v.
State Farm Fire and Cas. Co., 544 F.3d 553, 564 (3d Cir.2008),
citing Pirozzi v. Penski Olds-Cadillac-GMC, Inc., 605 A.2d 373,
375 (Pa.Super.1992).
Any person who purchases or leases goods
or services primarily for personal, family or household purposes
and suffers an ascertainable loss of money or property as a
result of any act or practice declared unlawful by the UTPCPL
may bring a private action to recover actual damages or one
hundred dollars ($100.00), whichever is greater. s
73 P.S.
§
201
9.2(a).
In her complaint, Plaintiff alleges that EPSI violated 73
P.S.
§
201-3.1 of the UTPCPL by "misrepresent [ingJ
the
character, extent, or amount of the debt or its status in a
legal proceeding."
(Docket No. I, , 29.a.).
no support for this claim.
The Court can find
First, as noted by EPSI, Section
201-3.1 of the UTPCPL addresses the Attorney General's authority
to adopt rules and regulations to enforce and administer the
UTPCPL.
It has nothing to do with the conduct proscribed by the
UTPCPL.
(Docket No. 38, p. 7 n.2).
Second, the only evidence
With respect to Ms. Webb's claim under the UTPCPL, the Court notes that the
first check written to Giant Eagle on June 20, 2010 was simply cashed. No
purchase of goods or services was involved. As a result, the UTPCPL does not
even apply to the $30.00 check that was returned to Giant Eagle for
insufficient funds.
8
13
regarding representations made to Ms. Webb by EPSI is the
validation of debt notice sent to Ms. Webb on September 28
2010.
However
1
1
Ms. Webb has failed to identify any
misrepresentations in the letter that was based on information
provided by Giant Eagle and matches the information on Ms.
Webb's returned checks.
Ms. Webb also asserts a claim against EPSI under the
UTPCPL/s "catchall" provision which prohibits "any other
fraudulent or deceptive conduct which creates a likelihood of
confusion or of misunderstanding."
(Docket No. I, , 29.b,).
73 P.S.
§
201-2(4) (xxi),9
A plaintiff may succeed under the
catch-all provision of the UTPCPL by satisfying the elements of
common law fraud or by otherwise alleging deceptive conduct.
Hunt v. United States Tobacco Co., 538 F.3d 217, 219 (3d
Cir.2008) .
With respect to Ms. Webb's bare allegation of fraud
l
under
Pennsylvania law, common law fraud requires: (1) a
misrepresentation,
falsely,
it,
(2) material to the transaction,
(3) made
(4) with the intent of misleading another to rely on
(5) justifiable reliance resulted, and (6) injury was
proximately caused by the reliance.
Santana Products
I
Inc. v.
Bobrick Washroom Equip., Inc., 401 F.3d 123, 136 (3d Cir.2005),
9Section 201 2(4) defines "unfair methods of competition" and "unfair or
deceptive acts or practices," listing 21 specific types of conduct that
violate the UTPCPL as well as a "catch-all" provision which prohibits
It is
the "catch-all" provision on which Ms. Webb's second UTPCPL claim is based.
14
citing Viguers v. Philip Morris USA, Inc., 837 A.2d 534
(Pa.Super.2003).
Ms. Webb, however, has neither alleged the
elements of common law fraud nor submitted evidence raising an
issue of fact as to whether EPSI's action was fraudulent.
Accordingly, EPSI is entitled to judgment on Ms. Webb's claim of
fraud under the UTPCPL.
As to Ms. Webb's allegation that EPSI's actions amounted to
deception likely to create confusion or misunderstanding, the
Court can find no basis for this claim.
Ms. Webb admits she
wrote the two checks to Giant Eagle on June 20, 2010 that were
returned for insufficient funds, and she has failed to submit a
shred of evidence tending to show that any conduct by EPSI in
connection with the re-presentment of the checks resulted in
confusion or misunderstanding.
Finally, the absence of any ascertainable loss in this case
precludes a claim under the UTPCPL.
See 73 P.S.
§
201-92(a).
In June 2010, Ms. Webb wrote two checks to Giant Eagle totaling
$69.90 without sufficient funds in her bank account to cover the
checks, and, in October 2010, her account was debited in the
total amount of $69.90 upon re-presentment of the checks.
15
Under
the circumstances, EPSI also is entitled to judgment in its
favor on Ms. Webb's UTPCPL claim.
Ju ge william L. Standish
United States District Judge
Date: May 31, 2011
16
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