JULIE A. ROBINSON, District Judge.
Plaintiff James Galligan brings this action against defendant FMS, Inc. alleging violations of the Fair Debt Collection Practices Act ("FDCPA").
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law."
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
The following facts are either uncontested, stipulated to, or viewed in the light most favorable to Plaintiff. Defendant FMS, Inc., is an asset receivables management company which collects outstanding receivables for its clients. Plaintiff James Galligan has an outstanding balance of $1,106.86 on his Citibank "CITGO Card," and this lawsuit relates to Defendant's effort to collect from Plaintiff this outstanding debt. A representative of Defendant first called Plaintiff on September 25, 2010, by telephone and asked Plaintiff to verify his mailing address and the last four digits of his Social Security number. Plaintiff complied with these requests, confirming his identity. The caller then advised Plaintiff that Plaintiff was speaking with a debt collector and also explained the nature of the debt. Plaintiff then requested that Defendant send him a letter detailing his outstanding balance. After agreeing to send the letter, Defendant stated that it would call Plaintiff back in seven days to confirm his receipt of the letter.
On October 8, 2010, Plaintiff called Defendant and asked the nature of Defendant's business and the location of its headquarters. Plaintiff admits that by October 8, 2010, he knew that Defendant was a debt collector. Later that day, Plaintiff again spoke to Defendant, and the caller asked Plaintiff to confirm his mailing address and the last four digits of his Social Security number. Plaintiff again complied with these requests, and the caller proceeded to explain that he was a debt collector and that the conversation was an attempt to collect a debt. Plaintiff told Defendant that he would call Defendant back.
On October 25, 2010, a representative of Defendant again called Plaintiff. Plaintiff described the conversation as follows:
Plaintiff again spoke with Defendant in a call initiated by a representative of Defendant on November 1, 2010. Defendant requested Plaintiff to confirm his mailing address and the last four digits of his Social Security number. Although Plaintiff provided his mailing address, he refused to confirm his Social Security number. Defendant responded by saying, "[u]nfortunately I can't continue the call unless the two [address and last four digits of the Social Security number] are verified." Defendant then ended the call.
The final conversation on record occurred on November 5, 2010. Again, Plaintiff refused to confirm the last four digits of his Social Security number. As a result, Defendant told Plaintiff that the call could not be continued without the confirmation of his Social Security number, and the call was then terminated. It is uncontested that Plaintiff never asked any of Defendant's representatives to stop calling him. It is further uncontested that Plaintiff claims he was distressed by Defendant's calls but admitted that he received similar calls from other debt collectors, which also caused him distress.
Plaintiff contends that Defendant violated five provisions of the FDCPA. The Court addresses each in turn.
15 U.S.C. § 1692(d) provides that "[a] 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." Further, § 1692(d)(5) prohibits the debt collector from "[c]ausing 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."
Defendant argues that there is no evidence of Defendant's intent to annoy, abuse, or harass Plaintiff in violation of the FDCPA. In deciding a motion for summary judgment, the Court considers the volume and pattern of the calls by the debt collector to the plaintiff.
In this case, the Court finds there is no evidence of an unacceptable pattern of calls. The record lacks any indicia of the type of egregious conduct that would raise an issue of triable fact when coupled with a high call volume. Plaintiff relies on evidence that, on October 8, 2010, Defendant stated that "[w]e have called you like eighty times." Accepting as true Plaintiff's contention that Defendant called him 80 times, a high volume of calls without other egregious conduct does not constitute a triable issue of fact or intent under § 1692(d)(5). In Carman, the plaintiff's opinion alone about whether the calls were harassing was not evidence of FBS's intent.
Here, Plaintiff argues that he felt that Defendant's tone during the conversations was inappropriate, and that, because the transcripts of the conversations do not "give the flavor" of the telephone conversations between Defendant and Plaintiff, the conversations should be heard by the jury. However, as stated in Carman, Plaintiff's opinion alone about whether the calls were harassing is not evidence of FMS's intent to annoy, harass, or abuse Plaintiff.
Similarly, here, many of the calls placed by Defendant to Plaintiff were discontinued when Plaintiff refused to confirm his identity via the last four digits of his Social Security number. During the first phone conversation on September 25, 2010, Plaintiff confirmed his Social Security number, but requested more information regarding his outstanding balance. Defendant told Plaintiff that it would send him more information regarding his outstanding balance, and that Defendant would call Plaintiff back in seven days to confirm that he received the letter. During the conversation on October 8, 2010, Plaintiff confirmed his Social Security number but again requested more information regarding his balance. The remaining three conversations on record took place on October 25, 2010, November 1, 2010, and November 5, 2010. When Plaintiff refused to confirm his identity via his Social Security number during each conversation, the calls were terminated. Under the FDCPA, when a debt collector is unable to confirm the debtor's identity via the debtor's Social Security number, the debt collector must terminate the call.
Defendant next argues that there is no evidence to show its failure to meaningfully disclose its identity when communicating with Plaintiff. According to 15 U.S.C. § 1692(d)(6), "[e]xcept as provided in section 1692 of this title, the placement of telephone calls without meaningful disclosure of the caller's identity" is prohibited by the FDCPA as conduct that has the natural consequence of harassing, abusing, or oppressing anyone in connection to the debt. "Meaningful disclosure" requires the debtor to state his or her name, capacity, and to provide enough information to the consumer as to the purpose of the call.
Plaintiff identifies two conversations where Defendant identified itself as an "asset management company" and argues that this was misleading, in violation of § 1692(d)(6). The transcripts of the conversations between Plaintiff and Defendant on September 25, 2010 and October 8, 2010, during which Defendant identified itself as an asset management company, were initiated by Plaintiff. With respect to the October 8, 2010 conversation, Plaintiff offers no evidence that Defendant knew he was talking to the debtor. According to the transcript of the conversation, Plaintiff called Defendant and asked, "what SMS is." Defendant responded by saying that it was an asset management company. Plaintiff then asked where Defendant's headquarters were, and Defendant told Plaintiff it was headquartered in Tulsa, Oklahoma. The conversation then ended. Section 1692(b) forbids the debt collector from revealing to a third party that the consumer has an outstanding debt. Thus, Defendant was not obliged by § 1692(d)(6) to reveal its identity to an unknown caller, because doing so would run the risk of revealing to a third party that Plaintiff owed a debt, in violation of § 1692(b).
As for the September 25, 2010 conversation, the transcript reveals that Defendant, after confirming Plaintiff's name, address, and last four digits of his Social Security number, revealed its identity, its capacity as a debt collector, and disclosed enough information to Plaintiff as to the caller's identity and the purpose of the call.
According to 15 U.S.C. § 1692(e), "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." In determining whether a debt collection practice is deceptive or misleading, the fact-finder must view the practice "objectively from the perspective of the least sophisticated consumer."
The Court has already concluded that Defendant did not violate the FDCPA by identifying itself as an "asset management company." Plaintiff has also failed to raise a triable issue of fact as to the remainder of his allegations. First, Defendant correctly points out that Plaintiff may not take several sentences of a conversation out of context and claim they are deceptive or misleading.
Second, Defendant's statement, "I am here to help you," is not false or misleading in violation of § 1692(e). Although authority is lacking as to whether this statement violates the FDCPA as a matter of law, Defendant cites Hapin v. Arrow Financial Services,
Therefore, after viewing Defendant's statements objectively from the perspective of the least sophisticated consumer, this Court finds that no reasonable jury could conclude that Defendant's statements were false or misleading, and grants Defendant's motion for summary judgment as to its § 1692(e) claim.
Under § 1692(e)(11), "[t]he 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" constitutes a false or misleading representation. As previously mentioned above, in each conversation between the Defendant and Plaintiff, there is no genuine issue of material fact about whether Defendant disclosed the purpose of the call, without violating § 1692(b).
Plaintiff's claim that Defendant used unfair or unconscionable means in attempting to collect a debt fails. Plaintiff argues that Defendant falsely stated that "[t]he burden of proof is on you sir. I don't have to prove it. I have the debt. The debt is right here in front of me," and that this constitutes "unfair or unconscionable means" to collect a debt in violation of § 1692(f). However, under Rule 56 of the Federal Rules of Civil Procedure, the party opposing a motion for summary judgment "may not rely on mere allegations . . . in its own pleading; rather, it must . . . set out specific facts showing a genuine issue for trial.
