Summary
holding that there was no FDCPA violation when plaintiff was told over the phone that she could not orally dispute the debt and that she was required to put the dispute in writing as § 1692 contains an inherent writing requirement
Summary of this case from Grant-Fletcher v. Mcmullen & Drury, P.A.Opinion
Civil Action No. RDB-07-2772.
February 17, 2009
MEMORANDUM OPINION
Plaintiff Catherine Davis ("Plaintiff" or "Davis") filed this lawsuit against R R Professional Recovery, Inc. ("Defendant" or "R R") under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, the Maryland Consumer Debt Collection Act, Md. Code Ann., Com. Law. § 14-204, et seq., and the Maryland Consumer Practices Act, Md. Code Ann., Com. Law. § 13-301, et seq. Presently pending before this Court are cross motions for summary judgment: Defendant's Motion for Summary Judgment (Paper No. 15), and Plaintiff's Cross Motion for Summary Judgment (Paper No. 20). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2008). For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED, and Plaintiff's Cross Motion for Summary Judgment is DENIED.
BACKGROUND
This case had its inception on August 28, 2007. On that date, R R informed Davis via letter that it had been referred her overdue account with Advanced Imaging Partners Inc. The letter further provided that:
This is a communication from a debt collector. This communication is an attempt to collect a debt, and any information obtained will be used for that purpose.
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.
Pl.'s Cross Mot. Summ. J. Ex. A. On October 2, 2007, Davis telephoned R R, although the exact substance of the conversation remains unclear. At a minimum, however, Davis claims in her Cross Motion for Summary Judgment that she was told that she "could not orally dispute [the] debt, [and] that [she] was required to put [the] dispute in writing." See Pl.'s Mem. Supp. Summ. J. Ex. A.
Also on October 2, 2007, Davis's attorney of record in the instant action faxed a letter to R R which stated as follows:
I am in receipt of a letter dated August 28, 2007, from your company to my client Ms. Davis. Enclosed please find a copy of a lawsuit that is being filed in U.S.D.C. of Maryland against your company for multiple FDCPA violations. Your company is not licensed in the State of Maryland to collect debts and violated multiple state collection agency statutes as well.
My clients demand is $4,900 inclusive of attorney fee's and statutory damages under State and Federal statutes.
Please contact me if you wish to resolve this matter short of protracted litigation.Id. Ex. B. On October 3, 2007, R R's Vice President, Nancy Ring, contacted Davis's attorney to discuss the threatened lawsuit, and there is a dispute between the parties as to whether the conversation extended to the collection of the underlying debt. Davis's counsel sent at least one letter to Ring after their conversation.
On October 11, 2007, Davis filed a sparse two-page complaint in this Court that asserts only two causes of action. The first ground for relief is asserted under the FDCPA, 15 U.S.C. § 1692. The only FDCPA provision explicitly cited as a grounds for relief is section 1692e(11). Compl. ¶ 7 ("In the collection efforts, the defendant violated the FDCPA, inter alia, section 1692e(11)."). In her Cross Motion for Summary Judgment, Plaintiff has expanded her theory of recovery to include violations of sections 1692g(a) and 1692e(10) of the FDCPA. The second ground for relief is asserted generally under the Maryland Consumer Debt Collection Act, Md. Code Ann., Com. Law. § 14-204, et seq., and the Maryland Consumer Practices Act, Md. Code Ann., Com. Law. § 13-301, et seq. No specific provision of either statute is cited in Davis's Complaint. Davis requested $1,000 in statutory damages, plus costs and attorney's fees.
R R filed its Motion for Summary Judgment on March 13, 2008, and Davis filed her Cross Motion for Summary Judgment on April 17, 2008. Both parties subsequently responded to the opposing motion.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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." Fed.R.Civ.P. 56(c). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue over a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249. In that context, a court is obligated to consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). However, Rule 56 mandates summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When both parties file motions for summary judgment, as here, the court applies the same standards of review. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir. 1983) ("The court is not permitted to resolve genuine issues of material fact on a motion for summary judgment — even where . . . both parties have filed cross motions for summary judgment.") (emphasis omitted), cert. denied, 469 U.S. 1215 (1985). The role of the court is to "rule on each party's motion on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." Towne Mgmt. Corp. v. Hartford Acc. Indem. Co., 627 F. Supp. 170, 172 (D. Md. 1985). "[B]y the filing of a motion [for summary judgment] a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary's theory is adopted." Nafco Oil Gas, Inc. v. Appleman, 380 F.2d 323, 325 (10th Cir. 1967); see also McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C. Cir. 1982) ("[N]either party waives the right to a full trial on the merits by filing its own motion.").
DISCUSSION
I. Fair Debt Collection Practices Act
As mentioned above, the only statutory provision in the FDCPA cited by Plaintiff as a grounds for relief in her Complaint is 15 U.S.C. § 1692e(11), so that provision provides the logical place to begin this Court's discussion of Plaintiff's case.
Section 1692 of the FDCPA states that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Section 1692e(11) is one of many statutorily delineated examples of a "false, deceptive, or misleading representation." It requires that a debt collector disclose, in an initial written or oral communication with a debtor, "that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." 15 U.S.C. § 1692e(11) (emphasis added). In all subsequent communications, however, the debt collector is only required to disclose "that the communication is from a debt collector." Id. Thus, in all communications after the initial communication, the debt collector is no longer statutorily required to disclose either that it is attempting to collect a debt or that it may use information received from the debtor for that purpose. See Senftle v. Landau, 390 F. Supp. 2d 463, 473 (D. Md. 2005) (noting in dicta that Congress "distinguished between initial and subsequent communications to a debtor on a given debt" in section 1692e(11)).
Section 1692e(11) provides, in full:
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, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.15 U.S.C. § 1692e(11).
It is undisputed that R R's Vice President, Nancy Ring, contacted Plaintiff's counsel on October 3, 2007, one day after Plaintiff's counsel threatened a lawsuit. The parties have honed their dispute on whether Ring contacted Plaintiff's counsel "in connection with the collection of any debt." 15 U.S.C. § 1692e. Defendant argues that "Ring's telephone call to Plaintiff's attorney did not constitute an attempt to collect a debt because the phone call was made in response to a request by Plaintiff's attorney to discuss the threat of a suit under the FDCPA." Def.'s Mem. Supp. Summ. J. 5. Plaintiff counters that, after "[Ring] advised [Plaintiff's counsel that] there was no basis for [the] lawsuit," Ring "[s]witch[ed] to another subject" and "attempted to collect a debt and demanded payment in full." Pl.'s Mem. Supp. Summ. J. 25.
The parties both agree that the Fourth Circuit has recently held that communications sent to a debtor's attorney are covered by section 1692e. See Sayyed v. Wolpoff Abramson, 485 F.3d 226, 232-33 (4th Cir. 2007). Therefore, Plaintiff's counsel may qualify as a debt collector under the statutory definition.
Plaintiff's entire section 1692e(11) claim is based on the alleged statement made to Plaintiff's attorney on October 3, 2007. To support this argument, Plaintiff's counsel has represented that he "prepared and faxed a letter to R R Professional Recovery, Inc. . . . on October 3, 2007" that memorialized their conversation. Pl.'s Mem. Supp. Summ. J. Aff. of Bernard T. Kennedy, at ¶ 4. This representation, made under penalty of perjury, supplies the only basis for Plaintiff's section 1692e(11) claim.
Although Plaintiff's counsel refers to a single letter, he has variously referred to two letters that are nothing alike. Compare Pl.'s Mem. Supp. Summ. J. Ex. C with Pl.'s Reply Ex. E. The first letter (Exhibit C) does not memorialize a conversation between Plaintiff's counsel and Ring, as it states only that "it appears that we are just left with your violation of the FDCPA § 1692e(11) for attempting to collect a debt without providing the required notice to the consumers [sic] attorney." Pl.'s Mem. Supp. Summ. J. Ex. C. If Exhibit C were all this Court had before it, it would conclude that there was no factual support for Plaintiff's section 1692e(11) claim. Curiously, however, the second letter (Exhibit E), only filed after Defendant responded to Plaintiff's Cross Motion for Summary Judgment, is far and away more beneficial to Plaintiff. Exhibit E explicitly states that "[Ring] asked [Plaintiff's counsel] if [Plaintiff] would like to resolve her $148.00 debt." Pl.'s Reply Ex. E.
Despite Plaintiff's counsel's reference to a single letter, in light of the two different versions, this Court will presume that he sent two separate letters to Ring on October 3, 2007. The only viable alternative would be to question the legitimacy of counsel's representation. Moreover, the standards of summary judgment mandate this position — in order to grant summary judgment to Defendant, this Court must be convinced, after having viewed the facts in a light most favorable to Plaintiff, that the claim fails as a matter of law.
Viewing this factual dispute in favor of Plaintiff (i.e. assuming that Ring "attempted to collect a debt and demanded payment in full" from Plaintiff's counsel, as Plaintiff alleges), Plaintiff's claim is covered by section 1692e because the October 3, 2007 telephone call from Ring to Plaintiff's counsel was "in connection with the collection of any debt." 15 U.S.C. § 1692e. Nonetheless, Plaintiff's claim fails as a matter of law under section 1692e(11).
Defendant's August 28, 2007, letter to Plaintiff, which constituted the initial communication to Plaintiff, indisputably did not violate section 1692e(11), as it informed Plaintiff "that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." 15 U.S.C. § 1692e(11); see Pl.'s Cross Mot. Summ. J. Ex. A. ("This is a communication from a debt collector. This communication is an attempt to collect a debt, and any information obtained will be used for that purpose.") The October 3, 2007 telephone call from Ring, therefore, is a "subsequent communication" under section 1692e(11). Consequently, Defendant's only statutory requirement was to disclose "that the communication is from a debt collector." 15 U.S.C. § 1692e(11). This Court finds as a matter of law that Defendant did not violate this notice requirement.
On October 2, 2007, Plaintiff's counsel threatened a lawsuit against Defendant for alleged violations of the FDCPA, thereby making it clear beyond a doubt that Plaintiff's counsel knew he was sending a letter to a debt collector. On behalf of Defendant, Ring telephone Plaintiff's counsel the very next day to discuss (at a minimum) the threatened lawsuit and to set the record straight about whether Defendant was a licensed debt collector. See Pl.'s Mem. Supp. Summ. J. 25 ("[Ring] advised me [ i.e. Plaintiff's counsel, writing in the first person] there was no basis for my lawsuit [and] that R R Professional Recovery, Inc. complied with all licensing requirements of the State.") Indeed, Plaintiff's counsel has acknowledged several times that the October 3, 2007, phone call was placed in direct response to his October 2, 2007 letter. See, e.g., Pl.'s Reply Ex. E ("You called my office in response to a letter from me dated October 2, 2007, advising you of a FDCPA violation. . . ."). By the nature of the conversations between Plaintiff's counsel and Ring, Plaintiff's counsel was necessarily advised that he was speaking with an agent of a debt collector. As section 1692e(11) does not require any more notice than that provided in this case for "subsequent communications," there was no violation of the FDCPA.
Plaintiff's counsel is not the unsophisticated consumer that Congress had in mind when mandating that debt collectors provide specific notice requirements. See Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 938-39 (9th Cir. 2007) ("The purpose of the FDCPA is to protect vulnerable and unsophisticated debtors from abuse, harassment, and deceptive collection practices. . . . When an individual is represented by counsel who fields all communications relevant to the debt collection, these concerns quickly evaporate. Attorneys possess exactly the degree of sophistication and legal wherewithal that individual debtors do not."). If Plaintiff's counsel in this case is not charged with having been provided the requisite notice under section 1692e(11) based on the nature of the October 3, 2007, communication, it is difficult to imagine a situation in which a debt collector could comply with section 1692e(11).
B. 15 U.S.C. §§ 1692g(a), 1692e(10)
Plaintiff's Complaint mentions only 15 U.S.C. § 1692e(11) as a potential ground for recovery under the FDCPA. Notwithstanding the limited nature of the Complaint, Plaintiff's federal case has since grown threefold. In her Cross Motion for Summary Judgment, Plaintiff argues additionally that judgment should be entered on her behalf because Defendant violated sections 1692g(a) and 1692e(10) of the FDCPA. Defendant, for its part, argues that this Court should not consider either newly-added claim because they are beyond the scope of the Complaint. See Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 748 n. 4 (D. Md. 1997) (noting that a plaintiff "is bound by the allegations contained in its complaint and cannot, through the use of motion briefs, amend the complaint"). In this case, Plaintiff's Complaint does not mention sections 1692g(a) and 1692e(10), nor does the Complaint contain any factual allegations that, even under the most liberal of interpretations, implicate either provision. Although the Defendant correctly notes the applicable law, in order to accord Plaintiff every inference, this Court will nonetheless address the merits of Plaintiff's newly-added claims.
Plaintiff states that his Complaint incorporated claims for violations of sections 1692g(a) and 1692e(10) by using the term " inter alia." See Compl. ¶ 7 ("In the collection efforts, the defendant violated the FDCPA, inter alia, section 1692e(11)."). No factual foundation has been presented to support claims under sections 1692g(a) and 1692e(10).
Section 1692g(a)(3) provides that debt collector's validation notice contain "a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector." 15 U.S.C. §§ 1692g(a)(3). Section 1692e(10), another statutorily delineated example of a "false, deceptive, or misleading representation," prohibits "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." 15 U.S.C. § 1692e(10). Plaintiff argues that both statutory provisions were violated because, during a telephone conversation Plaintiff initiated on October 2, 2007, Plaintiff was told by Defendant's representatives that she "could not orally dispute [the] debt, [and] that [she] was required to put [the] dispute in writing." See Pl.'s Mem. Supp. Summ. J. Ex. A.
As Defendant accurately points out, this Court has previously held that section 1692g(a)(3) does, in fact, contain an inherent writing requirement. See Wallace v. Capital One Bank, 168 F. Supp. 2d 526, 529 (D. Md. 2001) (stating that this Court was "persuaded by the reasoning in Graziano v. Harrison, 950 F.2d 107, 111-12 (3d Cir. 1991), which holds that not requiring a debtor's dispute under § 1692g(a)(3) to be in writing would make the statutory scheme incoherent"). Therefore, assuming the conversation occurred as Plaintiff alleges, the FDCPA was still not violated.
Plaintiff's claims fail for an additional reason. The right to dispute a debt in writing (or otherwise, as Plaintiff's counsel has argued) expires thirty days after receipt of the initial communication by the debtor. 15 U.S.C. § 1692g(a); see also id. § 1692g(b) ("If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a). . . ."). Defendant indisputably dated and sent its initial communication, which contained the validation notice, on August 28, 2007. Plaintiff has not represented the date on which she received the letter. Assuming, however, that the letter was received three business days later on August 31, 2007, cf. Adams v. Henderson, 197 F.R.D. 162, 169 (D. Md. 2000) (applying, in an employment discrimination case, the presumption under Fed.R.Civ.P. 6(e) that mail is received within three days if the date of receipt is unknown or disputed), Plaintiff disputed her debt more than thirty days later on October 2, 2007. Therefore, even if Plaintiff were correct that section 1692g(a)(3) permits oral disputes within thirty days of the debt collector's initial communication, Plaintiff waived her right to lodge such a dispute with Defendant. See Senftle, 390 F. Supp.2d at 475 (finding that debtor waived his right to dispute a debt by responding to debt collector beyond thirty-day window).
The August 28, 2007, letter contained almost language identical to section 1692g(a)(3), specifically providing that "[u]nless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid." See Pl.'s Mem. Supp. Summ. J. Ex. A. The letter did not contain a writing requirement.
Plaintiff has represented instead that she "read the letter on or about September 3, 2007." Pl.'s Mem. Supp. Summ. J. Aff. of Catherine Davis, § 3. As with any other area of the law, the date mail is received, and not the date one actually reads the mail received, triggers the thirty day window under the FDCPA to dispute a debt.
II. The Maryland Consumer Debt Collection Act and the Maryland Consumer Practices Act
Plaintiff has not asserted any legal argument for his state law claims, and "concedes that the [Maryland Consumer Debt Collection Act] claims are based on derivative FDCPA claims as alleged against this Defendant." (Pl.'s Reply 26.) Therefore, having determined that Plaintiff's federal claims fail as a matter of law, Plaintiff's state law claims fail as well.
CONCLUSION
Therefore, Defendant's Motion for Summary Judgment (Paper No. 15) is GRANTED, and Plaintiff's Cross Motion for Summary Judgment (Paper No. 20) is DENIED. A separate Order follows.
ORDER AND JUDGMENT
For the reasons stated in the foregoing Memorandum Opinion, this 17th day of February 2009, it is HEREBY ORDERED and ADJUDGED that:
1. Defendant R R Professional Recovery, Inc.'s Motion for Summary Judgment (Paper No. 15) is GRANTED;
2. Plaintiff Catherine Davis's Cross Motion for Summary Judgment (Paper No. 20) is DENIED
3. Judgment is entered in favor of R R Professional Recovery, Inc.;
4. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to counsel for the parties.
5. The Clerk of Court CLOSE THIS CASE.