Carman v. CBE Group, Inc.
2011 U.S. Dist. LEXIS 29730
D. Kan.2011Background
- Plaintiff Carman sued CBE Group alleging FDCPA violations (1692c, 1692d5, 1692d6, 1692e10, 1692e10) and later amended to add 1692c(a)(3) and 1692f claims.
- CBE moved for summary judgment and sanctions; the court granted summary judgment on all FDCPA claims and denied sanctions.
- Debt alleged to be Home Depot Citibank; placed with CBE on August 30, 2009 for collection.
- CBE conducted extensive phone contact: 149 calls over two months (August–October 2009), with a single in-person/phone conversation on Sept 2, 2009 at plaintiff’s workplace.
- CBE had internal policies: minimum 120-minute intervals between calls until contact or a message; used multiple phone numbers; no voicemail left when unreachable.
- Plaintiff testified about distress from calls but admitted she avoided answering and did not dispute the debt during calls; prior complaints and amended pleadings evolved over time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the call pattern violated 1692d(5). | CBE's high-volume calls show intent to harass Carman. | Volume alone does not prove intent to harass; calls were attempts to reach Carman. | No triable issue; summary judgment for CBE on 1692d(5). |
| Whether not leaving voicemails constitutes deceptive means under 1692e(10) or unfair means under 1692f. | Not leaving messages is deceptive and unfair to induce response. | No deception; caller ID accurately disclosed numbers; no obligation to leave messages. | CBE entitled to summary judgment on both 1692e(10) and 1692f. |
| Whether sanctions against plaintiff and her counsel are warranted. | Sanctions not requested. | Misconduct by counsel and frivolous claims justify sanctions under Rule 11, 28 U.S.C. 1927, and 15 U.S.C. 1692k(a)(3). | Sanctions denied; no Rule 11 safe harbor violation proved; no 1927 or 1692k(a)(3) basis shown. |
Key Cases Cited
- Braley v. Campbell, 832 F.2d 1504 (10th Cir. 1987) (standard for sanctions and abusive litigation behavior)
- Miera v. Dairyland Ins. Co., 143 F.3d 1337 (10th Cir. 1998) (sanctions and duty to orderly process of justice)
- Ferree v. Marianos, 129 F.3d 130 (10th Cir. 1997) (objective reasonableness in FDCPA conduct interpretation)
- Johnson v. Riddle, 443 F.3d 723 (10th Cir. 2006) (bona fide error defense / standard for 1692k defenses)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Supreme Court 1986) (genuine dispute and material fact standard for summary judgment)