Hicks v. America's Recovery Solutions, LLCHicks v. America's Recovery Solutions, LLC
ORDER
Currently pending in the above-captioned case is Defendant America’s Recovery Solutions, LLC’s (“ARS” or “Defendant”) Motion for Summary Judgment (ECF No. 11). For the reasons stated herein, the court denies in part and grants in part Defendant’s Motion.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant regularly engages in the collection of outstanding accounts, and has placed phone calls in an attempt to collect an alleged debt from Plaintiff Albert Hicks, but not from his wife, Plaintiff Mary Hicks. (Ans. at ¶7, ECF No. 4.) Plaintiffs maintain that when Defendant calls, the caller ID often only shows “UNKNOWN” (Compl. at ¶ 12, ECF No. 1), and that Defendant often hangs up without leaving a message or allowing Plaintiffs to answer. {Id. at ¶ 15.) Finally, they contend that Defendant did not disclose that it was a debt collector in its messages. {Id. at ¶¶ 16,17.)
Defendant’s calls have resulted in five conversations with Plaintiffs. (Mary Hicks Aff., ECF No. 13-1, at ¶ 9.) While Plaintiffs have not alleged a specific number of phone calls from Defendant, they contend that they received “daily calls for two weeks, often twice a day” from late September until mid-October. {Id. at ¶¶4, 16.) Defendant has provided a record indicating that 21 calls took place from August 6, 2009 until November 13, 2009. (Debtor Overview Report, ECF No. 11-1.) It also indicates that Defendant called twice in the same day just one time, and never more than that. {Id.) However, Plaintiffs allege that they were often called more than once in a day. (Mary Hicks Aff., at ¶ 16, ECF No. 13-1.)
On November 12, 2009, Plaintiffs filed the instant suit against Defendant, alleging violations of the Federal Debt Collection Practices Act (“FDCPA”). (ECF No. 1.) On September 28, 2010, Defendant filed a Motion for Summary Judgment. (ECF No. 11.)
A party may move for summary judgment, identifying each claim or defense- or the part of each claim or defense-on which summary judgment is sought. The 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....
A party asserting there is no genuine dispute as to any material fact or that a fact is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co.,
The moving party has the burden of production to make a prima facie showing that it is entitled to summary judgment. Celotex Corp. v. Catrett,
If the moving party meets its burden of production, then the non-moving party is under an affirmative duty to point out specific facts in the record which create a genuine issue of material fact. Fulson v. City of Columbus,
The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors” and “to protect consumers against debt collection abuses.”
Plaintiffs’ Complaint initially alleged that Defendant’s conduct violated
A. False or Misleading Representations —
Plaintiffs have alleged that Defendant violated
any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector ...
1. Hanging up Without Leaving a Voicemail —
Plaintiffs claim that by calling and hanging up without leaving a voicemail, Defendant has violated
Plaintiffs argue' that Defendant has not provided any case law to suggest that the conduct in question is not actionable. They also contend that since Defendant has not deposed them to find out whether
Despite Plaintiffs’ assertion that their feelings create a fact issue to be determined by a jury, the actions of a debt collector are judged by an objective standard. Therefore, Plaintiffs’ feelings are not dispositive. Instead, this court must examine whether a debt collector’s concealment of its identity, either through blocking its number or hanging up without leaving a voicemail, would mislead the least sophisticated consumer. Plaintiffs argue that Defendant’s actions could do so, relying on Hosseinzadeh v. M.R.S. Assoc., Inc.,
Plaintiffs contend that Langdon v. Credit Mgmt., LP, No. C 09-3286 VRW,
Plaintiffs fail to cite to any case law or statute that explains how hanging up, and choosing not to leave a voice message or that calling from an unknown number, by itself, is a deceptive practice. The Car-man court held that under the FDCPA, the debt collector has no right to leave a message, and therefore, “it follows that there can be no requirement that a message be left for a debtor, and no case or statute holds otherwise.” Carman v. CBE Group,
2. Disclosure in Voicemails—
Plaintiffs claim that Defendant violated
Defendant argues that the court should not accept the Hosseinzadeh holding, because it would create an inconsistency under the FDCPA, which does not allow communication with any third party. Defendant believes that if it is forced to disclose its status as a debt collector in voicemails, it could be sued if any third party happened to hear the message.
A careful reading of Hosseinzadeh reveals the flaw in Defendant’s first argument. Calls made to a consumer’s residence are analogous to a letter left on a coffee table or an envelope which is eventually opened by the wrong person, the small risk of exposure cannot relieve the debt collector of its obligation to identify itself. Since these calls were made to Plaintiffs’ home, there was a reasonable expectation of privacy, and thus very little risk of communicating with third parties. This line of reasoning was specifically followed by Hosseinzadeh. The court finds this case, and Plaintiffs’ arguments, to be persuasive on this point.
Defendant also contends that Plaintiff Mary Hicks had no right to disclosure because she did not have an account with ARS, and thus is not a consumer according to the FDCPA. However, the Sixth Circuit has previously found that the protections of
B. Harassment or Abuse—
Plaintiffs have also alleged violations of
[а] 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:
(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.
(б) Except as provided in section 804, the placement of telephone calls without meaningful disclosure of the caller’s identity.
1. Causing a Telephone to Ring with Intent to Annoy, Abuse, or Harass—
However, there is no bright line rule regarding the number of calls which creates the inference of intent. In Sanchez v. Client Services,
Defendant argues that the volume and frequency of calls in this case merit summary judgment in its favor. It points to the fact that only 21 calls were made over a three-month period, a lower volume than many cases in which courts granted summary judgment to the debt collector. Further, Defendant claims that it only called twice in the same day on one occasion.
The court concludes that the number of calls is not totally dispositive in this case. Rather, the nature, extent, and context of the calls are also important. Plaintiffs’ affidavits indicate that Defendant continued to call Plaintiffs on a daily basis, often twice a day, despite being advised that Plaintiffs were represented by a debt management company. In addition, there is no significant disparity between the number of calls placed and answered, a factor that courts such as the Saltzman court have used to excuse high call volumes on the theory that it indicates a difficulty in reaching the consumer. While Plaintiffs’ evidence is not particularly strong, a reasonable jury could find the requisite intent to harass or annoy. Thus, a genuine dispute of material fact remains and summary judgment is denied on this claim.
Plaintiffs’ claim under
C. 1692g(a) — Debt Validation
Plaintiffs have voluntarily withdrawn their claim under § 1692g. Accordingly, that claim is dismissed.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 11) is denied in part and granted in part, and the following claims remain:
IT IS SO ORDERED.