Lunger v. Escallate, LLC
5:15-cv-00048
| N.D. Ohio | Dec 15, 2015Background
- Plaintiff Schmeil Lunger (pro se) sued debt collector Escallate, LLC under the FDCPA and made a conclusory FCRA allegation after Escallate sought to collect an alleged debt placed May 24, 2013.
- Escallate sent initial notice (allegedly mailed May 28, 2013) and a second notice June 28, 2013; business records show a phone call July 2, 2013 and credit-reporting beginning August 2013 and continuing through July 30, 2015.
- Lunger contends he requested validation of the debt on July 25, 2013 and never received verification; Escallate’s records show no timely (within 30 days) written dispute or validation request.
- Lunger filed the complaint in small claims December 8, 2014; Escallate moved for summary judgment July 31, 2015; magistrate judge recommends granting the motion.
- Key factual dispute offered by Lunger (that Escallate received a validation request) was unsupported by evidence; Escallate produced sworn business records and a CEO affidavit that notices were mailed and no timely dispute was received.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDCPA claims based on communications are time-barred | Lunger contends Escallate failed to validate and continued unlawful collection | Escallate says most communications occurred before the 1-year limitations period and thus are time-barred; only recent credit reporting falls within one year | Court: communications before one-year are time-barred; credit reporting within one year may be separate actionable events |
| Whether Escallate had FDCPA duty to cease collection/provide validation | Lunger says he requested validation (July 25, 2013) and Escallate failed to validate | Escallate says no written dispute was received within §1692g’s 30-day period after the May 28, 2013 notice, so no duty to cease or validate | Court: no timely written dispute shown; Escallate met §1692g requirements by sending notice; late July request (if made) did not trigger validation duty |
| Whether credit reporting while dispute pending violated FDCPA | Lunger alleges continued reporting was unlawful because validation was requested | Escallate admits reporting began Aug 2013 and continued; asserts no obligation to cease because no timely dispute | Court: reporting can constitute discrete FDCPA claims; only reports within one-year pre-filing survive statute of limitations; no evidence Escallate was required to cease because no timely dispute shown |
| Whether FCRA claim is adequately pleaded | Lunger made a general/conclusory FCRA allegation | Escallate argues complaint lacks factual or statutory detail to state an FCRA claim | Court: conclusory FCRA assertion insufficient; FCRA claim dismissed for failure to plead facts/statute violated |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard on genuine issue)
- Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574 (summary judgment standard)
- Lewis v. ACB Business Services, Inc., 135 F.3d 389 (6th Cir.) (FDCPA least-sophisticated-consumer standard)
- Haddad v. Alexander, Zelmanski, Danner & Fioritto, 758 F.3d 777 (6th Cir. 2014) (requirements of §1692g(b) for written dispute)
- Frey v. Gangwish, 970 F.2d 1516 (6th Cir.) (broad remedial purpose of FDCPA)
- Zamos v. Asset Acceptance, LLC, 423 F. Supp. 2d 777 (N.D. Ohio) (mailing the §1692g notice satisfies collector’s duty to send notice)
- Whittiker v. Deutsche Bank Nat. Trust Co., 605 F. Supp. 2d 914 (N.D. Ohio) (FDCPA elements and statute of limitations interpretation)