Katz v. Capital One Financial Corporation et al

Filing 59

MEMORANDUM OPINION re: 42 MOTION for Summary Judgment by Allied Interstate Inc., 52 MOTION for Summary Judgment by Marcia Miller Katz. (See Memorandum Opinion For Details). Signed by District Judge Leonie M. Brinkema on 3/18/10. (nhall)

IN THE UNITED STATES

DISTRICT COURT
OF VIRGINIA

FOR THE

EASTERN DISTRICT

Alexandria Division
MARCIA MILLER KATZ,

Plaintiff,
v.

)
et al.

l:09cvl059(LMB/TRJ)

CAPITAL ONE,

Defendants.
MEMORANDUM OPINION

Plaintiff Marcia Miller Katz

has

sued Allied Interstate,

Inc.

("Allied")

for breach of contract,

harassment and invasion

of privacy,

and false reporting of information to a credit

reporting agency in connection with Allied's attempts to collect
a debt on behalf of Capital One Bank. parties' cross-motions Before the Court are the

for summary judgment.

Finding that oral

argument will not assist in the decisional process, will be resolved on the papers Summary judgment
as to any material

the motions

submitted by the parties. if there is no genuine
entitled to

is appropriate

issue

fact and the moving party is

judgment as a matter of law.
Corp. v. Catrett. 477 U.S.

Fed.

R.

Civ.

P.

56(c);

Celotex

317,

322-23

(1985).

In ruling on a

motion for summary judgment,
of the nonmovant,

a court should accept the evidence
inferences must be drawn in

and all justifiable

his favor.
(1986) .

Anderson v.

Liberty Lobby,

Inc..

477 U.S.

242,

255

I.

Background

This case arises

from the December 2008

theft of the

plaintiff's wallet,

which contained a Capital One credit card.

The plaintiff timely notified Capital One about the theft and Capital One indicated that she would not be responsible for any
charges incurred by the thief. The next billing statement from

Capital One was not itemized,

and therefore plaintiff was unable

to determine whether any charges made by the thief had been

improperly billed to her.

On January 16,

2009,

she wrote to

Capital One asking for an itemization for the relevant billing
period. Capital One failed to respond to that request, but On

charged plaintiff a ttlate fee" February 17, 2009,

in the following billing cycle.

plaintiff sent Capital One a $5.00 check "for" line that it was in accord and

indicating on the

satisfaction of her entire debt.
that notation,

Capital One never responded to
Plaintiff contends that the

but cashed the check.

debt was satisfied when Capital One cashed her check and she has
refused to pay anything further. As a result, Capital One

continued thereafter to bill plaintiff for additional late
charges and ultimately hired defendant Allied to collect
plaintiff's debt.

On April 27,

2009,

Allied sent a letter to plaintiff

indicating that it was attempting to collect this debt and

stating that if plaintiff notified Allied within 3 0 days that she

disputed the validity of the debt,

then Allied would verify the In response, plaintiff

debt before proceeding with collection. called Allied to obtain a

fax number to which she could send a the Capital One debt and Allied

letter disputing the validity of provided a fax number. 5# 2009, which was

Plaintiff's counsel wrote a letter on May the number Allied had provided,
that plaintiff had written settle the issue, stated

faxed to

stating that the debt was several letters to Capital to

disputed, One

in attempt to The

and that Allied was not

contact her.

letter also

that

"[h]enceforth,

the

initial

telephone call
and,

to Ms.

Katz will

be charged $50.

[sic]

for the

first call

thereafter each

subsequent

telephone call

to her will double

the cost:

i.e.

[sic]

$100.

[sic]

for the 2nd.

[sic]

call;

$200.

[sic]

for the 3rd call

and continuing." The fax number Allied provided to plaintiff was operated by

Capital One Services, to "receive,

Inc.

pursuant to an agreement with Allied and escalate Customer

respond to,

forward,

inquiries,
Accounts."

complaints,

comments,

and requests related to the
fax, which

Allied asserts

that it never received the

is corroborated by Capital One Director of Process Management's
sworn statement that Capital One received the fax, Allied had no

access

to it,

and the

letter was never transmitted or McDevitt Decl.
indication that

communicated to Allied.
argues that she had no

at
the

KU 3-5.

Plaintiff

fax number did not

belong to Allied and states

that,

had she known,

she would have

used a different delivery method.

Plaintiff alleges that Allied

telephoned her fifteen to seventeen times after her attorney
faxed the May 5, 2009 letter.

Katz originally filed her complaint in the Circuit Court

for

Arlington County on August 18,

2009.1 On September 18,

2009,

Allied

removed it to this Court on the grounds that it asserts a federal
cause of action under the Federal Debt Collection Practices Act

("FDCPA"),
statute.

15 U.S.C.

§1692 et sea..

without directly citing to the
arguing that

Although plaintiff

filed a Motion to Remand,

she made no claim under the FDCPA,

the Court found her position a

disingenuous attempt to avoid federal court and ruled that this
Court has jurisdiction pursuant to the artful pleading doctrine.
II.
A. Count I: Breach of

Discussion

Contract

Plaintiff's first cause of action is for breach of a contract which she claims was formed by her attorney's letter of May 5, 2009. Plaintiff argues that the letter was an offer to charge

Allied a fee each time it called her and that Allied accepted that
offer by calling plaintiff. Putting aside the compelling argument

that such a letter could not create a contract,

the uncontroverted

evidence is that the fax number to which the letter was sent was

was dismissed because the credit card agreement with plaintiff
contained a binding arbitration clause.

1 Capital One was originally a defendant to this action, but

not

an Allied number,

but a Capital One number,

and that Allied

never received the
the "offer" because

fax.2 As

such,

defendant could not have accepted

that offer was never received by Allied.

Plaintiff has no evidence to refute that
equitable estoppel, arguing

fact,

but

instead invokes
reasonably

that because plaintiff

relied on the fax number Allied supplied,

Allied should be estopped

from claiming it never received the letter.
cites to several cases that are

Plaintiff

confusedly

inapposite here because they frauds

consider estoppel only in the context of a statute of

defense and either do not support plaintiff's proposition or are
wholly unrelated to contract law. (T v. T. 216 Va. 867 {Va. 1976)

(holding that a husband who promised his wife
for her child by another man if

that he would care
when she did,

she married him and,

did treat the child as his own,
support proceedings

was later estopped during child
frauds violation);

from claiming a statute of

Nargi v.

CaMac Corp.,

820

F.Supp.

253

(W.D.Va.

1992)(estopping

defendant from asserting a statute of

frauds defense where

plaintiff had made substantial life changes based on an oral
employment agreement); Albanese v. WCI Communications, Inc.. 530

F.Supp.2d 752

(E.D.Va 2007)(holding that employer was not equitably
frauds defense because employee failed

estopped from a statute of

2 It should be noted that plaintiff disputes this fact, but
offers no basis for her position. Plaintiff cannot create a genuine issue of fact by simply contradicting defendant's
evidence with generic, unsupported assertions.

demonstrate fraud).
promissory estoppel,

Plaintiff may be attempting to invoke
but it is unclear that defendant made any

representation that it would directly receive the fax or that
plaintiff's reliance on the fax number without any follow-up was

reasonable.

Moreover,

there is no evidence that Allied

intentionally acted to mislead the plaintiff.
Even if the Court were to, on equitable grounds, assume that

Allied received the letter,
enforceable contract.

plaintiff cannot establish an
is a bargained-for exchange
Even if the letter to

A contract

involving both an offer and an acceptance.

Allied constituted an offer,

there

is no evidence whatsoever that

Allied accepted the offer.

To the contrary,

even Plaintiff admits
of the letter. See

that Allied never explicitly accepted the terms

Katz Dep.
the Court by its

at 30,

1M 14-16;

Katz Dep.

at 31,

^ 7-10.
terms cases

Plaintiff asks

to infer that Allied accepted the citing to several

of the contract in which

subsequent conduct,

Virginia courts have made
those

such a finding.
indicia of

However,

the

facts of
intent to

cases provide substantial

the offeree's

accept the offer and form a contract.3 In this case,

no such

3 For example,

plaintiff cites to Chang v.

First Colonial

Savings Bank. a case in which the Virginia Supreme Court found exception to the general rule that advertisements are not offers
because that particular advertisement was clear, definite, and explicit in its terms and the offerees relied on the offer by

depositing

$14,000

into a

savings

account with the bank.

242

Va.

General EJec. Co. 143 F.3d 828 (4th Cir. 1998)(determining the
final terms of a contract where "the parties

388

(1991).

Plaintiff also cites to:

Princess Cruises,

Inc.

v.

do not dispute that

indicia are present.

Allied did not alter its behavior and would

have taken the same actions had the letter never been written.4 The
Court therefore declines to to find that the letter of constitutes a particularly

proper offer or

infer an acceptance

that offer,

in light of the evidence that Allied never received the letter. Accordingly, summary judgment will be granted in defendant's
contract claim.

favor

on the breach of

B.

Count II:

Harassment

and Invasion of

Privacy As

Count

II alleges

harassment

and invasion of privacy.

defendant properly argues, recognized under Virginia Fense. Inc.. 356

these causes of action are not law in this context.5 See Weist v. 2005); Falwell v. E-

F.Supp.2d 604

(E.D.Va.

Penthouse

a contract was

formed by their exchange of documents");

Thompson

v. Artrip. 131 Va. 347 (Va. 1921)(stating that "acceptance may be inferred from the acts and conduct of the promisee" in holding
that a tenant who, after the expiration of a lease term, remains in possession of a property with owner's permission and continues to pay rent becomes a year to year tenant); Bernstein v. Bord. 146 Va. 670 {Va. 1926)(holding that while there was no express

consent to an oral offer, the actions of the parties and totality of the circumstances made clear that an agreement existed to release a debt upon the sale of debtor's real property).

the letter, it would have ceased contacting plaintiff until had verified the debt. See Stmt. Undisputed Facts, Ex. A.

4 In fact,

the evidence suggests that had Allied received

it

invasion of privacy is pursuant to Va.

5 The only statutory cause of action in Virginia for
Code § 8.01-40,

which

relates only to unauthorized use of a likeness. See Brown v. American Broadcasting Co., 704 F.2d 1296, 1302 (4th Cir. 1983); Williams v. Newsweek. Inc., 63 F.Supp. 2d 734 {E.D.Va. 2005). There is a statutory cause of action for harassment, but only if

it is based upon race,

religion,

or ethnicity.

See Va.

Code

§

8.01-42.1.1 Neither type of lawsuit.

allegation is

involved in the instant

International. Plaintiff fails

Ltd..

521

F.Supp.

1204,

1206

(W.D.Va.

1981).

to cite any legal authority supporting these causes

of action.
Therefore,
claim.

See Compl.;

Katz Resp.

To Def.'s Interrogs.

at fllA.

summary judgment will be granted to defendant on this

Although plaintiff has

consistently argued that she is not

making a claim under the FDCPA,

part of plaintiff's harassment

claim has been construed as brought under the FDCPA because the claim focuses on alleged abusive debt
there

collection practices and

is no remedy for such practices under Virginia statutory law.
under the FDCPA a debt collector's latitude in

However,

communications with consumers is
generously, appears to address

limited.

Plaintiff's

claim,

read

the prohibition on any communication

with the consumer "if the debt collector knows
represented by an attorney with respect to

the consumer is
15 U.S.C. §

such debt."

1692c.

Plaintiff's claim may be construed as arising under this
i

provision on the grounds that counsel's Allied on notice that the plaintiff was
However, as discussed supra, there

letter of May 5,

2009 put

represented by an attorney.
that Allied

is no evidence

received the May 5,

2009 letter,

and therefore,
1692c.
collectors

there

is no

evidence that Allied violated §
The FDCPA also prohibits

debt

from engaging in

harassing conduct,

which the

statute delineates

in relevant part as

"causing a telephone to ring...

repeatedly or continuously with

intent

to annoy, §

abuse,

or harass

any person at

the

called number." calls at

15 U.S.C. as

1692d. [sic]

The plaintiff malicious,

characterizes Allied's phone [sic] vengeful."

"willful;

harassing;

Compl.

K 23.

However,

nothing in the record indicates that the phone calls
abusive, or harassing. debt Instead, the

were intended to be annoying, record shows
attempted to

that Allied,
take steps to

believing plaintiff's
collect that debt.

to be valid,
the record

Moreover,

reflects

that Allied placed no more than two calls

to plaintiff

in

a single day.6 See Def.'s Resp.
Although the case

To Req.

For Admis.
to

at UK 4-20.

law defining what amounts

"causing a telephone

to ring...

repeatedly or continuously" issue have
but

is sparse,

most courts

addressing the
volume of

found that

"it turns not only on the
calls." Akalwadi

calls made,

also on the pattern of

v.

Risk Management Alternatives,
see also Gilroy v.

Inc.,

336 F.Supp.2d 492
Co., § 632

(D.Md.

2004); 136-37

Atneriquest Mortg.

F.Supp.2d 132, calls

(D.;N.H.

2009) (finding a violation of

1692d where

were being placed between 8:00pm and 9:00pm and the consumer had
asked defendants Inc.. 520 to stop calling); 1161 Sanchez v. Client Services. the

F.Supp.2d 1149,

(N.D.Cal.

2007)(holding that

number and frequency of calls
consumer); Chiverton v.

can show there was
Financial Group,

an intent to annoy
Inc.. 3 99

Federal

6 Plaintiff's Statement of Material Facts Not in Dispute
asserts that Allied made four calls to plaintiff on May 1, 2009, but this information is not corroborated by any sworn testimony
or documentation and therefore cannot be considered evidence.

F.Supp.2d 96

(D.Conn.

2005)(finding that

repeated calls

after

the

consumer had asked debt collector to stop calling amounted to
harassment): Kuhn v. Account Control Tech., 865 F.Supp. 1443, 1453

(D.Nev.

1994)(finding that defendant who made § 1692d). The

six calls

to consumer that

in twenty-four minutes violated

evidence shows

none of Allied's calls were made back-to-back, times,

at

inconvenient or
twice

after plaintiff had asked Allied to stop calling,

immediately after plaintiff hung up.

Allied called plaintiff

in a single day,

within a three-hour time

span on one occasion and
Without any

within a four hour time span on another occasion. indicia of an unacceptable pattern of
constitute harassment. See Saltzman v.

calls,
I.e.

this does not
System, Inc., 2009 WL

3190359

(E.D.

Mich.

2009){finding that

"a debt

collector does

not

necessarily engage

in harassment by placing one or two unanswered to reach the debtor if this

calls a day in an unsuccessful effort

effort is|unaccompanied by any oppressive conduct."); Udell v.
Kansas Counselors. Inc.. 313 F.Supp.2d 1135, 1143 {D.Kan.
collector

2004)(holding that

four calls over seven days by a debt

without leaving a message does not violate
Court finds there was no violation of §

§

1692d).

Therefore,

the

1692d and summary judgment

will be granted to the defendant on this
C. Count III: Defamation
claim is

claim.

Plaintiff's

third and final

for defamation based on

alleged false reporting of information about plaintiff to credit

10

reporting agencies.

However,

plaintiff admits

that

she has no

evidence to support her claim and it is undisputed that Allied has
not reported any adverse information relating to plaintiff credit bureaus. In fact, to any

the plaintiff admits not having requested

a credit report

since the date of the theft.

See Stmt.

Undisputed

Facts at fU 6-7. As there is no evidence to support Count III,
summary judgment will be granted to defendant on this claim.
III. Conclusion

For the reasons

stated above,

plaintiff's Motion for Summary

Judgment

[52]

will be DENIED and defendant's Motion for Summary

Judgment
opinion.

[42]

will be GRANTED,

by an order to issue with this

Entered this

IB

day of March, 2010.

Alexandria,

Virginia

Leonie M. Brinkema United States District Judge

11