SUSAN C. BUCKLEW, District Judge.
The Court now considers the Motion for Partial Summary Judgment filed by Plaintiffs Jeff Bishop and Heidi Bishop. (Doc. 28.) The Bishops seek summary judgment on one of five claims in Count I of the Amended Complaint against Defendant I.C. System, Inc. for a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692c(c). I.C. System opposes the motion. (Doc. 32.)
With exceptions, § 1692c(c) prohibits a debt collector from contacting a consumer after being notified in writing that the consumer wishes the debt collector to stop communicating with him. Plaintiff Jeff Bishop argues that I.C. System violated § 1692c(c) because it contacted him after he wrote I.C. System a letter that said: "Any further correspondence from your organization or any other collection agency will be discarded or returned to you unopened." I.C. System contends that a genuine jury issue remains whether Bishop's letter triggered § 1692c(c)'s protection. Because the Court finds that any jury would conclude that the letter demanded that I.C. System stop contacting the Bishops, the Court enters partial summary judgment for the Bishops on this single claim.
In September 2008, Jeff Bishop and his wife Heidi received a telephone call and a letter from I.C. System, a debt collection agency, at their North Carolina home about a debt they allegedly owed to a dentist, Richard Salvatore, in upstate New York. (Doc. 28-1; Doc. 34 at 13-16.) Jeff Bishop said he told the representative from I.C. System that the company had made a mistake. Id. The Bishops had never been to a dentist in upstate New York. They did not know a dentist named Richard Salvatore. And it was impossible for a dentist to work on their son's teeth because at the time of the alleged work, their son was an infant, who had no teeth. Id.
Despite this explanation, I.C. System sent Heidi Bishop a collection letter on October 20, 2008 and again on November 24, 2008. (Docs. 28-2, 28-3). Jeff Bishop said he also received more phone calls from I.C. System representatives. During one of those calls, Jeff Bishop said he asked the I.C. System representative to stop calling him. (Doc. 34 at 23.) According to Bishop, the representative told him that I.C. System would continue to call until he placed his request to cease communication in writing. Id. On November 28, 2008, Bishop wrote a manager at I.C. System's headquarters in St. Paul, Minneapolis this letter:
(Doc. 28-4) (emphasis in original).
On January 2, 2009, Heidi Bishop received another letter from I.C. System about the same $84 bill. (Doc. 28-6.) According to Jeff Bishop, representatives from I.C. System continued to call the Bishops at home. (Doc. 28-1.) The calls came on January 26, February 4, February 5, February 9, and other unspecified dates in 2009.
On March 25, 2009, the Bishops sued I.C. System in the 13th Judicial Circuit of
In the § 1692c(c) claim, the Bishops allege that I.C. System continued to communicate with the Bishops after Jeff Bishop notified the debt collector in writing that the Bishops refused to pay the debt or wished I.C. System to cease further communication with them. The Bishops seek the maximum statutory damages of $1,000, actual compensatory damages, damages for emotional and mental anguish, and attorney's fees and costs.
The Bishops now move for partial summary judgment on the § 1692c(c) claim in Count One. I.C. System opposes the motion, and, in its response, urges the Court to enter partial summary judgment in its favor on this claim. I.C. System, however, did not move for summary judgment, and therefore, as the Court instructed I.C. System recently in another FDCPA case,
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor.
"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."
Section 1692c(c) of the Federal Debt Collection Practices Act says: "If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt. . . ." The statute then provides three exceptions, none of which are relevant here.
The following facts are undisputed:
The parties do not dispute that both Plaintiffs are "consumers," as defined by 15 U.S.C. § 1692a(3).
Second, the parties do not dispute that the Bishops allegedly owed a "debt," as defined by 15 U.S.C. § 1692a(5).
Third, the parties do not dispute that I.C. System is a "debt collector," as defined by 15 U.S.C. § 1692a(6).
Fourth, the parties do not dispute that Jeff Bishop sent I.C. System the November 28, 2008 letter, in which he wrote,
Fifth, the parties do not dispute the fact that I.C. System contacted the Bishops by mail and by phone on more than one occasion about the $84 debt after it received Jeff Bishop's November 28 letter. While the parties may dispute the exact number of telephone calls made, this dispute is not material to the Bishops' § 1692c(c) claim as long as more than one contact occurred. Even after a debt collector receives a consumer's cease-and-desist letter, the FDCPA allows the debt collector to contact the consumer one more time for specific purposes.
Sixth, the parties do not dispute that I.C. System's calls and its letter to the Bishops after November 28 concerned the $84 debt described in Bishop's letter. Even after a debt collector receives a consumer's cease-and-desist letter, the FDCPA allows the debt collector to contact the consumer about other debts or future debts.
I.C. System also failed to raise other defenses that would create a genuine issue of material fact for a jury to resolve. For instance, while I.C. System raised the bona fide error defense in its Answer, it did not assert this defense in its response to the partial summary judgment motion. I.C. System also makes no argument that Jeff Bishop waived the protections of § 1692c(c) by calling I.C. System on January 9 after he had sent his November 28 letter.
Instead, I.C. System's argument focuses on one issue. It argues that Bishop's November
I.C. System's argument rests on the fact that Bishop's letter did not include the actual words of the statute and did not literally say, "Cease further communication." But while Bishop did not use those precise words, his words expressed the same message—just with more bite. In the last paragraph, Bishop wrote that Associates In Pediatrics could contact them directly about a non-frivolous claim. By informing I.C. System that only Associates In Pediatric could contact them, Bishop was also telling I.C. System not to communicate with them. The letter also ends with Bishop writing that future correspondence from I.C. System would be discarded or returned unopened. This sentence would indicate to any reader that Bishop did not want to receive any more mail from I.C. System.
The fact that the letter does not literally ask I.C. System to cease communication does not deprive the letter of its plain meaning. As Judge Learned Hand famously said, "There is no surer way to misread any document than to read it literally."
Generally, when parties disagree about the inferences to be drawn from a material document, a jury should decide what inferences to make. But to send a matter to a jury, the disagreement must be reasonable.
I.C. System does not address whether or not Bishop's letter notified it that the Bishops refused to pay the $84 bill. This is an important oversight. Section 1692c(c) can be triggered if the consumer notifies the debt collector either that they refuse to pay the debt or that they wish the debt collector to cease communication about the debt. In his November 28 letter, Bishop clearly refused to pay the $84 bill. He wrote that his wife "long ago paid [Associates In Pediatrics] every penny that she legitimately owes, which is nothing." (Doc. 28-4.) Later in the letter, Bishop left open the possibility that he might reconsider his refusal to pay the debt if Associates In Pediatrics contacted him directly with a non-frivolous claim. But possible reconsideration does not make his refusal any less clear.
Neither party argues that the statute imposes a heightened standard on the consumer who seeks to stop a debt collector's calls and letters. The statute does not require that the consumer use any specific language or "magic words" to tell a debt collector to cease communication. A rigid requirement would not make sense given the statute's remedial nature and its purpose to protect the public.
The Bishops seek statutory damages, actual compensatory damages, damages for emotional and mental anguish, and attorney's fees and costs.
Section § 1692k allows a court to award a maximum of $1,000 in statutory damages per lawsuit, regardless of how many times a defendant violates the FDCPA.
The Court will either submit this issue to the jury if this case proceeds to trial in July,
For similar reasons, the Court will defer ruling on the Bishops' request for other damages and for attorney's fees and costs.
Therefore, Plaintiffs' Motion for Partial Summary Judgment (Doc. 28) is
Because other claims remain, the parties must submit a joint pretrial statement to the Court by May 27, 2010. The Pretrial Conference is set at 8:30 a.m. on June 2, 2010 in Courtroom 14A of the Sam M.