JAMES S. GWIN, District Judge.
Plaintiff Christine Forgues sues Defendant Select Portfolio Servicing ("SPS"). She alleges violations of the Fair Debt Collection Practices Act ("FDCPA") and the Fair Credit Reporting Act ("FCRA") relating to the mortgage debt on her residence.
On December 8, 2015, this Court partially granted Defendant's motion to dismiss, after finding that Plaintiff failed to state a claim on most of the purported grounds for relief.
Defendant moves for summary judgment on all three claims.
For the following reasons, the Court
"A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony."
Where there are direct contradictions between the newly-filed affidavit and the deposition, courts do not consider the affidavit "unless the party opposing summary judgment provides a persuasive justification for the contradiction."
If there are no direct contradictions, then the district court may strike or disregard the affidavit if "the court determines that the affidavit `constitutes an attempt to create a sham fact issue.'"
As described in more detail below, Plaintiff's Section 1692c claim turns on whether Defendant SPS knew or should have known that calling Plaintiff between 8:30am and 9:30am — during her morning conference calls at work — was inconvenient to Forgues.
On February 12, 2016, Plaintiff received a copy SPS's Contact History Report ("the call log"). The call log contained summaries of every phone call with Plaintiff.
On March 7, 2016, Defendant deposed Plaintiff.
On March 14, 2016, Defendant SPS filed a motion for summary judgment. In part, SPS argued that Forgues never made a clear request to SPS to not call at any specific time.
After receiving SPS's motion for summary judgment, on March 29, 2016, Plaintiff filed a sworn affidavit supporting her opposition to Defendant's motion for summary judgment.
In the affidavit filed after receiving SPS's motion for summary judgment, Plaintiff provided specific details as to the instances where she says she instructed SPS not to call. For example, Plaintiff recalls that on August 30, 2014, she received a call from SPS that caused a "clicking" noise on her Bluetooth connection during a work conference call.
Defendant moves to strike those portions of the affidavit that contradict Plaintiff's earlier testimony. Defendant argues that the submission is a sham affidavit because the call log had previously been available. Plaintiff opposes, arguing that only a redacted version of the call log was available.
The Court has reviewed both the unredacted and the redacted versions of the call log. The Court agrees with Defendant that Forgues had the same background information before her deposition. There was no material difference which would have prohibited Plaintiff from identifying the relevant calls and recalling the specific instances at her deposition. The Court agrees with Defendant that Plaintiff's detailed sensory recollection of the phone calls with SPS is conflicts with her deposition testimony that she could remember no specific details of the phone calls where she says she instructed SPS not to call.
Of course, a party can refresh her memory by reviewing documents, and submit that refreshed recollection to the Court on summary judgment. However, even if Plaintiff's later affidavit is not in direct conflict with the earlier deposition, the Court finds there are other indicia that Forgues' submission is a sham affidavit aimed at creating a disputed fact to defeat summary judgment. She has no other support for her late-remembered claim that she told SPS not to call.
Indeed, there is contradictory evidence. First, Plaintiff stated in her deposition that SPS noted her request not to be called in her file.
Second, the Court has a transcript of a call Plaintiff made in February 2015 in which she told SPS that she would be unable to pick up the phone during her morning conference call.
Third, Defendant has been able to locate the October 27, 2014 call, which Plaintiff averred to in her affidavit. Defendant produced a complete transcript, which shows that Plaintiff never mentioned that the morning call was inconvenient time or that SPS should not call between 8:30am and 9:30am.
There are direct inconsistencies between Plaintiff's earlier statements that she could not recall specific instances of instructing SPS not to call, and her later affidavit laying out dates, times, and circumstances of the calls. Even if the affidavit is construed as merely supplementing the deposition record, the Court finds sufficient indicia that the submission is a sham affidavit with regard to the August 30, 2014, October 27, 2014, and November 14, 2014 calls. The Court
On March 23, 2007, Plaintiff Forgues, with her late husband, borrowed $144,440 from Chase Bank USA, N.A. ("Chase") to finance their Cleveland, Ohio residence.
Both the Mortgage and the Note were subsequently assigned to Deutsche Bank National Trust Company ("Deutsche Bank") in its role as trustee for an asset-backed security.
Deutsche Bank filed a state court foreclosure action on March 29, 2012 in the Cuyahoga County Court of Common Pleas.
Plaintiff brings this suit, alleging violations of the Fair Debt Collection Practices Act and Fair Credit Reporting Act. Three of her claims survive. First, Plaintiff claims that Defendant violated 15 U.S.C. § 1692c by calling her between 8:30am and 9:30pm, a time that SPS allegedly knew to be inconvenient. Second, Plaintiff claims that Defendant violated 15 U.S.C. § 1692d by calling Plaintiff repeatedly with intent to harass her. Third, Plaintiff claims that Defendant did not reasonably investigate the mortgage debt when Plaintiff disputed the debts with the three credit reporting agencies.
Defendant moves for summary judgment as to each claim.
Under Federal Rule of Civil Procedure 56, "[s]ummary judgment is proper when `there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'"
15 U.S.C. § 1692c prohibits a debt collector from collecting debt "at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer." "In the absence of knowledge to the contrary," convenient times are between 8:00am and 9:00pm.
"Congress took care to require an element of knowledge or intent in certain portions of the FDCPA where it deemed such a requirement necessary."
Here, no reasonable jury could conclude that SPS knew or had reason to know that calling between 8:30am and 9:30am was inconvenient to Plaintiff. Defendant identified only two phone calls from Plaintiff in which she mentioned the morning conference calls: one on November 13, 2013, and the other on February 10, 2015. The transcripts for both calls are available. Neither call was sufficient to put Defendant on notice that the call time was inconvenient.
In the November 13, 2013 call, Plaintiff states "Okay. I just can't take your call right now. I've got a work conference call that comes on in five minutes and I can't be late, so if you give me a call in, uh. The conference call usually goes from 8:30 to 9:30. So if you want to give me a call right after that it would be fine."
A second February 10, 2015, phone conversation is a closer call.
After Defendant SPS told Plaintiff that Defendant seemed to have everything it needed to consider Plaintiff's request for a loan modification, Plaintiff responds, "Okay, that makes sense. And let's see — oh yeah, can you mark my file that they always seem to call me — I have a morning conference call at work every single day from 8:30 to 9:30, and that's always when they seem to call me." Defendant's representative responds that there's not a way to change the dialing system to accommodate particular times. Plaintiff responds, "Okay, Alright."
In this exchange discussing Plaintiff's request for a loan modification, Plaintiff did not make an unequivocal request to not be called during her morning conference call. Moreover, this exchange is insufficient for Defendant to be put on constructive notice of inconvenience. Defendant's representative said that the company would be in touch if it needed additional materials. Plaintiff then said to "mark in my file" that Forgues needed to call into a conference call bridge line from 8:30am to 9:30am. Plaintiff's statement implies that she would not be able to answer during that time, because Forgues would be on a conference call.
Defendant would have had to make inferences to go from this statement to the conclusion that calling during that time was inconvenient and prohibited under 1692c. Indeed, Plaintiff's ultimate conclusion "Okay. Alright." runs against such a reading. No reasonable jury could conclude that Defendant knew or had reason to know that calling between 8:30am and 9:30am was inconvenient.
The Court
15 U.S.C. § 1692d prohibits a 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." "Courts have followed the Federal Trade Commission's interpretations, finding that the term `repeatedly' means `calling with excessive frequency under the circumstances,' and that `continuously' means `making a series of calls, one right after the other.'"
Generally district courts have found that less than one call per day is per se not harassment; however, there is no bright line rule regarding the number of calls that constitute harassment under this section.
Here, no reasonable jury could conclude that Defendant had violated Section 1692d. SPS called Plaintiff, on average over the relevant period, once every three days.
Moreover, the context of these phone calls is compelling. During this time, Plaintiff was working with SPS to modify her loan. The transcripts that have been attached to the motion for summary judgment show that many of the conversations dealt with Plaintiff's request to modify her loan. In one such call, Plaintiff is confirming that Defendant received documentation; in another, Plaintiff asks questions about the potential foreclosure sale. It is unsurprising that her mortgage servicer would want to be in regular contact.
Plaintiff's argument that some of the calls were just to "check in," does not defeat summary judgment. There is no evidence that these calls were untaken with an intent to harass, rather than part of the servicer's on-going effort to mediate possession of the property. There is no evidence that these calls were "repeated" or "continuous."
The Court
Defendant moves for summary judgment on Plaintiff's claim for actual damages under Section 1692c and 1692d of the FDCPA.
Plaintiff's final claim is for violation of 15 U.S.C. § 1681s-2(b), which requires that SPS investigate the disputes it receives from a credit reporting agency (CRA) in a "reasonable" manner. These obligations are triggered only when the furnisher receives "notice of dispute" from a credit reporting agency itself.
The FCRA allows a private right of action for willful or negligent noncompliance with its requirements.
After notification from a credit reporting agency, a furnisher's investigation into a disputed debt must be reasonable.
Defendant identifies five 2015 disputes that it became aware of from the CRAs: (1) May/June Equifax Dispute; (2) May/June Trans Union Dispute; (3) June/July Experian Dispute; (4) June/July Equifax Dispute; (5) June/July Trans Union Dispute. With each dispute, the CRA told Defendant SPS that Plaintiff had disputed whether the mortgage was hers. Each of these disputes triggered Defendant's duty to make "reasonable investigation" to confirm that Plaintiff was the debtor.
Plaintiff does not dispute Defendant's description of the investigation process. In fact, Plaintiff agrees that "in each investigation, SPS determined that the Plaintiff's information matched the information in the system and the account was not a fraudulent account opened by somebody other than Plaintiff. Plaintiff further agrees that, SPS then advised each credit reporting agency (CRA) of the results of their initial investigation."
Plaintiff does not argue that SPS's record searches to verify Plaintiff's identity were inadequate or unreasonable. The Court agrees that Defendant's investigations were reasonable under the circumstances.
Instead, Plaintiff raises two arguments to attempt to defeat summary judgment on this claim. The first is that even if the investigation as to Plaintiff's identity was sufficient, SPS entirely failed to reasonably investigate whether the mortgage was an "account."
As discussed at length in this Court's April 15, 2016 opinion addressing the same issue, Plaintiff loses the argument that use of the term "account" allows her failure to investigate claim.
Plaintiff's final claim is that there is a sixth credit dispute in addition to the five the parties agree upon: a May dispute initiated by Experian. Defendant has averred that it did not receive a dispute from Experian in May 2015.
In the absence of any evidence that Defendant's investigation was anything other than reasonable under the circumstances, Plaintiff has no grounds for relief under Section 1681s-2(b).
For the foregoing reasons, the Court
IT IS SO ORDERED.
