Elton THOMAS and Mamta Thakkar, Plaintiffs, v. CONSUMER ADJUSTMENT COMPANY, INC., Defendant.
No. 4:07CV01159 AGF.
United States District Court, E.D. Missouri, Eastern Division.
September 30, 2008.
AUDREY G. FLEISSIG, United States Magistrate Judge.
AUDREY G. FLEISSIG, United States Magistrate Judge.
This matter is before the Court on Plaintiffs’ motion for partial summary judgment on the issue of liability, and on Defendant‘s motion for summary judgment.1 Plaintiffs Elton Thomas and Mamta Thakkar filed this action on March 7, 2007, against Defendant Consumer Adjustment Company, Inc. (“CACi“), a debt collector, in the Circuit Court of St. Louis. Plaintiffs claimed that a telephone call made by Defendant to the Thomas/Thakkar household violated the Fair Debt Collection Practices Act,
BACKGROUND
The record establishes that on March 9, 2006, a CACi employee, Philip Braswell, called the apartment that Thakkar shared with Thomas, her boyfriend.2 Thomas was not at home at the time, and Thakkar answered the phone. The CACi employee asked, “Hi, is Elton there?” Thakkar asked who was calling, to which the employee replied, “This is Jason.” From the taped telephone calls it appears that Thomas has a brother named Jason, however that fact has not been established. Thakkar said, “Oh, hi Jason. No, he‘s not here.” The CACi employee asked, “Do you have a better number I can reach him at real quick? It‘s kind of important I get a hold of him.” Thakkar responded that she could have Thomas call him back. The caller agreed that that would be fine, and gave Thakkar his contact information. The conversation ended with each party saying good-bye. (Joint Ex. B).
The record contains evidence of four ensuing phone calls: (1) Thakkar called the number left by the CACi employee. She asked to speak to Jason, who she said had called her, and asked “what facility” she had dialed. The employee responded that “this is CAC,” and asked for the number the previous caller had dialed when he reached Thakkar. Thakkar gave
(2) Thakkar called Thomas, and according to Thomas, said that his brother had called and that it was an emergency. (Joint Ex. D).
(3) Thomas called the number left with Thakkar by the CACi employee, and gave the reference code to the employee who answered. When asked about the nature of his call, Thomas stated, “I guess it was my brother ... [who] gave me the message.” The CACi employee informed Thomas that the call was related to an outstanding bill for $295 from Washington University School of Medicine, and discussed the debt with Thomas. (Joint Ex. C).
(4) Thomas called CACi again to lodge a complaint about the call originally made to his apartment. He stated that a CACi employee had called his apartment and told Thakkar “that ... he was my brother and that there was an emergency and to call.” Thomas articulated his displeasure with the nature of the call, stating, “that definitely is not a good way to go about business.” The CACi employee said that he would look into the matter, and again asked Thomas about his debt. (Joint Ex. D).
In their second amended complaint, Plaintiffs allege that the CACi caller did not indicate that he was confirming or correcting location information. They state that “[b]ecause of a prior experience with a call that was an emergency, plaintiff [sic] thought [the call] was an emergency and panicked.” They claim that CACi thereby violated
As affirmative defenses set forth in its answer to the second amended complaint, CACi summarily asserted that none of the communications with Plaintiffs involved any deception, or any false or misleading statements, and that it did not have the intent that is necessary for conduct to be willful, wanton, or malicious. CACi also maintained that Plaintiffs suffered no ascertainable loss of money or property, and that they did not justifiably rely on any representation by CACi.
DISCUSSION
The Fair Debt Collection Practices Act
The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors.”
Except as provided in § 1692b of this title, without the prior consent of the consumer given directly to the debt collector
... a debt collector 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, the creditor, the attorney of the creditor, or the attorney of the debt collector.
Under
The Act provides that when acquiring location information pursuant to
In addition, the Act states that “a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.”
Individual employees of debt collectors may use “desk names” or aliases in order to protect their personal identities. The FTC states with regard to this matter that “[a]n individual debt collector may use an alias if it is used consistently and if it does not interfere with another party‘s ability to identify him (e.g., the true identify can be ascertained by the employer).”
“A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”
Section 1692k(a) provides: “Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person” for the actual damages; “additional damages as the court may allow,” but not exceeding $1,000; costs of the action; and reasonable attorney‘s fees.
Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(b) provides that a defendant may “at any time, move with or without supporting affidavits for a summary judgment ....” In ruling on a motion for summary judgment, a court is required to view the facts in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences to be drawn from the record. Phillips v. Grendahl, 312 F.3d 357, 360 (8th Cir.2002).
The moving party bears the burden of showing the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), 86 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “material” fact is one “that might affect the outcome of the suit under the governing law.” Id. at 248, 106 S.Ct. 2505. When a motion for summary judgment is made and properly supported by evidence, the non-moving party may not rest on the allegations of his pleadings but must set forth specific facts, by affidavit or other evidence, showing that there is a genuine issue for trial.
Plaintiffs’ Claims under § 1692e
Although neither the second amended complaint nor Plaintiffs’ summary judgment filings are the model of clarity, Plaintiffs’ argument appears essentially to be that by falsely representing himself as “Jason,” and asking for a number where he could reach Thomas “real quick” and adding “[i]t‘s kind of important that I get a hold of him,” the CACi caller created a false sense of urgency and used deceptive means to obtain information concerning a consumer, in violation of
CACi argues that because it did nothing more than request location information and because Plaintiffs admit that Thakkar‘s purported panic was subjective and “idiosyncratic” resulting from her own past experiences, there can be no liability under
In evaluating whether a debt collector has used false, deceptive, or misleading representations or means in connection with the collection of any debt or to obtain information concerning a consumer, the communication in question must be “viewed through the eyes of an unsophisticated [person].” Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir.2002). The test, however, also “contains an objective element of reasonableness that prevents liability for bizarre or idiosyncratic interpretations of collection [calls].” Id. (citations omitted).
In the instant case, the CACi caller identified himself as “Jason.” CACi concedes in its statement of uncontroverted material fact that the caller‘s actual name was Philip Braswell. While the Court recognizes that an employee of a debt collector may use an alias, that alias must be used consistently and must not be misleading. From simply a review of the telephone calls—the only evidence before the Court as to this fact—it appears that during
CACi has not satisfied the requirements for avoiding liability based on the affirmative defense outlined in
Although Plaintiffs might have been able, by affidavit or otherwise, to establish the facts sufficiently for this Court to rule on liability as a matter of law, they did not do so here. Thus, in light of the above, the Court believes that questions of fact remain on the issue of Defendant‘s liability, and Plaintiffs are therefore also not entitled to summary judgment on this claim under
Plaintiffs’ Claims under Sections 1692c(b)
In support of its motion for summary judgment, CACi argues that the call by its employee did not violate
The Court does not find persuasive CACi‘s argument that the call in question was not a communication under the FDCPA. Defendant bases its argument on the fact that the caller imparted no information to Thakkar regarding Thomas‘s debt. But Defendant admits that its employee called “to inquire regarding the status of a debt owed by Thomas” (Defendant‘s
Furthermore, the Court concludes that the call in question did not comply with the “safe harbor” provisions of
As with the claims under
That leaves only the issue of Thakkar‘s standing. As CACi states, several cases have held that only a consumer has standing to sue under
Nevertheless, the Court concludes that Thakkar, in addition to Thomas, has standing to sue under
While the Court recognizes that other cases also repeat the proposition stated in Wright, it is not correct that courts have “universally” taken this position, as Defendant asserts. In Whatley v. Universal Collection Bureau Inc., 525 F.Supp. 1204, 1204 & n. 4 (N.D.Ga.1981), the court specifically found standing for a claim by a third-party under
This result is also supported by the plain language of the statute as a whole. The cases cited by Defendant rely on the fact that
Accordingly, CACi‘s motion for summary judgment on Plaintiffs’ claims under
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ joint motion for partial summary judgment on the issue of liability is GRANTED with respect to Plaintiffs’ claims under
IT IS FURTHER ORDERED that Defendant‘s motion for summary judgment is DENIED with respect to Plaintiffs’ claims under the Fair Debt Collections Practices Act. [Doc. # 16].
IT IS FURTHER ORDERED that the parties shall have twenty days to submit a proposed scheduling order, after which time a new scheduling conference shall be set by the Court.
AUDREY G. FLEISSIG
United States Magistrate Judge