JAMES D. WHITTEMORE, District Judge.
The facts are largely undisputed. On August 29, 2008, Plaintiff through her attorney filed a voluntary petition under Chapter 7 of the Bankruptcy Code in the Middle District of Florida, Case No. 8:08-bk-13272-CPM. Pretrial Statement, Dkt. 59, ¶ H.4. Plaintiff listed on her Schedule F a debt of $459.15 owed to Defendant St. Joseph's Hospital, Inc. ("St. Joseph's"). (Dkt. 14-3 at 3
On November 17, 2008. St. Joseph's forwarded Plaintiffs account to Defendant MFP, Inc., d/b/a Financial Credit Services ("MFP"), for collection.
About November 18, 2008, MFP mailed and Plaintiff received MFP's initial collection letter (the "post-petition MFP collection letter" [Dkt. 5-2]). Id. ¶ H.5. About December 18, 2008 and February 18, 2009, respectively, MFP mailed and Plaintiff received MFP's second and third collection letters (together, the "post-discharge MFP collection letters" [Dkts. 5-3, 5-4]). Id. ¶¶ 6-7. On June 30, 2009, MFP was informed that Plaintiff had filed bankruptcy and was represented by counsel. Nasso Aff. ¶ 15. At that time, the MFP account notes were updated and the account was closed and returned to St. Joseph's. Id.
About September 11, 2008 and October 8, 2008, respectively, St. Joseph's mailed to Plaintiff and Plaintiff received bills (together, the "post-petition hospital bills" [Dkts. 5-5, 5-6]) for the debt at issue. Dkt. 59, ¶ 9. ¶¶ H.13-14.
Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56. "An issue of fact is `material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). "An issue of fact is `genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).
Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. Plaintiff's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Court will not weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the nonmoving party. Id.
The FDCPA provides a civil cause of action against any debt collector who fails
"The FDCPA does not ordinarily require proof of intentional violation and, as a result, is described by some as a strict liability statute." LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir.2010). However, characterization of the FDCPA as a strict liability statute is not entirely accurate, in part because the FDCPA provides debt collectors with an affirmative defense (the "bona fide error" defense) that "insulates them from liability even when they have failed to comply with the Act's requirements." Edwards, 584 F.3d at 1352 (citing Johnson v. Riddle, 443 F.3d 723, 727 (10th Cir.2006)). Pursuant to the bona fide error defense, a debt collector cannot be held liable for any violation of the statute
15 U.S.C. § 1692k(c).
A debt collector asserting the bona fide error defense must show by a preponderance of the evidence that its violation of the FDCPA "(1) was not intentional; (2) was a bona fide error; and (3) occurred
The FCCPA provides that a debtor may bring a civil action against any person who violates its provisions. Fla. Stat. § 559.77.
Plaintiff alleges that MFP violated 15 U.S.C. §§ 1692e(2)(A) and 1692f(1) by sending Plaintiff the post-petition MFP collection letter while she was protected by the bankruptcy stay, see 11 U.S.C. § 362(a), and by sending the post-discharge MFP collection letters while she was protected by the discharge injunction, see 11 U.S.C. § 524 (providing that a discharge under the Bankruptcy Code operates as an injunction against collecting a discharged debt as a personal liability of the debtor). Additionally, Plaintiff contends
MFP contends that Plaintiffs claim under 15 U.S.C. § 1692c(a)(2) fails because the provision prohibits direct communication only "if the debt collector knows the consumer is represented by an attorney with respect to [the relevant] debt." (emphasis added). The undisputed facts demonstrate that MFP had no actual knowledge that Plaintiff was represented by an attorney when it sent the collection letters.
In response, Plaintiff appears to argue that St. Joseph's knowledge of Plaintiffs representation should be imputed to MFP under a "special exception" to the general rule that knowledge of the principal is not imputed to the agent.
MFP further argues that it is entitled to the bona fide error defense on all of Plaintiff's FDCPA claims because (a) it relied on information regarding bankruptcies provided by St. Joseph's and (b) it maintains reasonable procedures to ensure that collection activity ceases upon notice of a bankruptcy and that direct contact with the debtor ceases upon notice of attorney representation. Specifically, Nasso avers that MFP's employees are trained (a) upon learning of a bankruptcy, to note the fact in the collection notes, cease collections activities on the account, and return the account to the creditor and (b) upon learning that a consumer is represented by counsel, to note the fact in the collection notes along with the attorney's contact information and to cease direct contact with the consumer. Nasso Aff. ¶¶ 12-14.
The FDCPA generally imposes no duty on a debt collector to independently verify information provided by the creditor. See Hyman v. Tate, 362 F.3d 965, 968 (7th Cir.2004) (debt collector that had reasonable policies and procedures in place to avoid sending collection letters to debtors in bankruptcy was not required to independently search bankruptcy records or obtain credit reports to assure that accounts forwarded for collection were not in bankruptcy); Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1032 (6th Cir.1992) (debt collector was not liable for attempting to collect amount greater than consumer owed where debt collector reasonably relied on incorrect amount creditor printed on debt collector's referral form, which instructed creditors to claim only amounts legally due and owing); Ross, 480 F.3d at 497-98.
However, the bona fide error defense "does not protect a debt collector whose reliance on a creditor's representation is unreasonable." Reichert, 531 F.3d at 1006 (citing Clark v. Capital Credit & Collection Serv., Inc., 460 F.3d 1162, 1177 (9th Cir. 2006) (debt collector who attempted to collect disputed medical debt was not entitled to summary judgment on bona fide error defense because consumers presented evidence indicating that debt collector knew of serious bookkeeping difficulties and billing
In Hyman, the debt collector and its client-creditor, a bank, had an informal "understanding" that the bank would not refer accounts for collection if the accounts were in bankruptcy. 362 F.3d at 967. To show the effectiveness of the understanding, the debt collector presented evidence that errors of this kind occurred very infrequently, less than .01% of the time. Id. Additionally, there was testimony that, if the bank received information that an account previously referred was in bankruptcy, the bank would promptly notify the debt collector. Id. Finally, the evidence showed that, if the debt collector received information that an account previously referred was in bankruptcy, the debt collector immediately ceased collection efforts. Based on this testimony, the relatively innocuous nature of the violation, and the slight harm it occasioned, the Seventh Circuit affirmed the district court's conclusion that the debt collector's procedures were reasonable and agreed that the debt collector debt collector was not required to independently confirm that accounts referred by the bank were not in bankruptcy before sending collection letters. Id. at 967-68.
In Alexander v. Unlimited Progress Corp., No. 02 C 2063, 2004 WL 2384645, at *5 (N.D.Ill. Oct. 20, 2004), the district court construed Randolph as requiring procedures to avoid mistakes before they occurred. In response to the plaintiff's motion for summary judgment, the only evidence the debt collector presented that it took steps to avoid mistakes was an interrogatory response stating that the debt collector "notifies creditors that it does not handle bankruptcy accounts for collection." Id. This conclusory assertion did not defeat the plaintiffs motion for summary judgment, in part because the debt collector presented no evidence as to when (before or after collection efforts began) or how the notice was disseminated to ensure it actually reached creditors and no evidence as to the effectiveness of the notice in preventing errors. Id.
In Turner v. J.V.D.B. & Associates, Inc., 318 F.Supp.2d 681, 684 (N.D.Ill.2004) ("Turner II"), the debt collector averred that it relied on its creditor-clients to provide relevant, accurate information on a debtor's account, including whether a debtor had filed for bankruptcy. The district court held that this reliance (even when coupled with procedures to prevent collection efforts after receipt of notice that an account was subject to a bankruptcy filing) was insufficient as a matter of law to support the bona fide error defense. Id. at 685. The court reasoned that the debt collector's reliance on creditor-clients to provide the information was merely an unfounded assumption, not supported by any fact or any understanding or agreement
In Cross v. Risk Management Alternatives, Inc., 374 F.Supp.2d 649, 652 (N.D.Ill. 2005), the district court distinguished Alexander and Turner II as cases in which "the debt collectors relied solely on a presumption that their creditor clients would not send them accounts which were subject to bankruptcy petitions." (emphasis in original). In Cross, the debt collector presumed that its clients would not ask it to collect debts that were in bankruptcy. Id. at 651. However, the debt collector conducted bankruptcy searches on certain types of accounts (high balances, sub-prime loans, and debts of consumers who its creditor-clients thought might file for bankruptcy), which experience had taught it were most likely to be the subject of bankruptcy petitions. Id. at 651-52. Although the account at issue was not of that type (and therefore the debt collector had not conducted a bankruptcy search as to that account), the district court found the procedures sufficient to establish the bona fide error defense. Id.
Here, as in Alexander and Turner II, MFP presents no evidence of an agreement or understanding with St. Joseph's that the latter would not to refer accounts in bankruptcy and no evidence that its reliance on St. Joseph had proved effective in avoiding errors in the past. Indeed, MFP presents no evidence whatsoever to show that its reliance on St. Joseph's was reasonable. Accordingly, MFP is not entitled to summary judgment on the bona fide error defense.
MFP next contends that the Bankruptcy Code "preempts" Plaintiff's FDCPA claims. The Court disagrees. First, "[o]ne federal statute does not preempt another." Randolph, 368 F.3d at 730. Rather, the pertinent question when two federal statutes address the same subject in different ways "is whether one implicitly repeals the other." Id. An implied repeal may be found if there exists "an irreconcilable conflict between the statutes or a clearly expressed legislative decision that one replace the other." Id. Absent a clearly expressed legislative decision, where two statutes have overlapping remedies, the later statute does not repeal the earlier by implication as long as people can comply with both. Id. at 731. In Randolph, the Seventh Circuit discussed the matter at length found no irreconcilable conflict between the remedies available under 11 U.S.C. § 362(a) and claims under 15 U.S.C. § 1692c(a)(2) and 1692e(2)(A) based on collection letters violating the automatic stay. The Court agrees.
MFP's reliance on In re Williams, 392 B.R. 882 (Bkrtcy.M.D.Fla.2008), is misplaced. In that case, an unsecured creditor filed a proof of claim in the bankruptcy proceeding based on a debt allegedly barred by the statute of limitations. Id. at 884. Instead of filing an objection to the claim in the bankruptcy proceeding, the debtor sued the creditor under the FDCPA and the FCCPA. Id. at 884-85. The bankruptcy court agreed with other authorities that a debtor in bankruptcy may not by pass the remedies available under the Bankruptcy Code and instead assert a claim under the FDCPA. Id. at 885-86. However, the bankruptcy court expressly distinguished Randolph, Turner I, and Hyman on the grounds that those cases involved the applicability of the FDCPA to violations of the automatic stay and the discharge injunction, and the court appeared to suggest that preclusion would not apply in those cases, in which "the collection agencies sent letters that violated both the Bankruptcy Code and the FDCPA." Id. at 886 (emphasis added);
In sum, although there is some authority supporting the proposition that remedies under the Bankruptcy Code are the only recourse against post-bankruptcy debt-collection efforts, see e.g., Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 510-11 (9th Cir.2002); cf. Yaghobi v. Robinson, 145 Fed.Appx. 697, 698-99 (2d Cir.2005), those authorities either do not address the arguments advanced in Randolph or do not involve FDCPA claims based on a violation of the stay or the discharge injunction.
Plaintiff alleges that the MFP collection letters also violated Sections 559.72(7), (9) & (18), Florida Statutes. Section 559(9) prohibits any person from claiming, attempting, or threatening to enforce a consumer debt "when such person knows that the debt is not legitimate." Fla. Stat. § 559.72(9) (emphasis added). Section 559(9) requires by its terms actual knowledge. In re Cooper, 253 B.R. at 290; see also In re Lamb, 409 B.R. 534, 541 (Bkrtcy.N.D.Fla.2009); Pollock v. Bay Area Credit Serv., LLC, No. 08-61101-Civ, 2009 WL 2475167, at *9 (S.D.Fla. Aug. 13, 2009); Williams v. Streeps Music Co., Inc., 333 So.2d 65, 67 (Fla. 4th DCA 1976) (striking allegation that a debt collector "should have known" the debt was not legitimate). The undisputed facts demonstrate that MFP did not know that Plaintiff had filed for bankruptcy when it sent the collection letters. Accordingly, MFP is entitled to summary judgment on Plaintiff's claim under Fla. Stat. § 559.72(9).
Similarly, Section 559.72(18) prohibits communicating directly with a debtor only "if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address." Fla. Stat. § 559.72(18) (emphasis added). As it is undisputed that MFP did not know that Plaintiff was represented by an attorney when it sent the collection letters, MFP is entitled to summary judgment on Plaintiff's claim under Fla. Stat. § 559.72(18).
As to Section 559.72(7), MFP contends that, as MFP admittedly lacked knowledge of Plaintiff's bankruptcy proceeding, no evidence of record supports Plaintiff's allegation that MFP "willfully" engaged in conduct that could reasonably be expected to abuse or harass Plaintiff. See Fla. Stat. § 559.72(7); see also Brandt v. I.C. Sys., Inc., No. 8:09-cv-126-T-26MAP, 2010 WL 582051, at *2 (M.D.Fla. Feb. 19, 2010) (suggesting that Section 559.72(7) "requires an allegation of knowledge or intent by the debt collector in order to state a cause of action"). The Court agrees.
Plaintiff asserts that Section 559.72(7) requires neither knowledge nor intent. However, Plaintiff neither explains how to square this construction with the statutory language requiring "willful" conduct nor cites any authority supporting her contention. Instead, Plaintiff relies on the general proposition
As MFP is entitled to summary judgment as to all of Plaintiffs FCCPA claims on other grounds, the Court need not address MFP's contention that Plaintiff's FCCPA claims are preempted by the United States Bankruptcy Code.
Plaintiff alleges that by sending Plaintiff the two post-petition hospital bills, St. Joseph's violated Sections 559.72(7), (9) & (18), Florida Statutes. Apparently relying on an agency theory, Plaintiff also alleges that St. Joseph's violated Sections 559.72(7), (9) & (18) by causing MFP to send its post-petition and post-discharge collection letters.
St. Joseph's contends that it cannot be held liable because it lacked actual knowledge of the bankruptcy action and Plaintiff's representation by counsel. In support of this contention, Dawn Cox, Auto Liability Coordinator for BayCare Health System (which conducts billing for St. Joseph's), avers generally that any post-petition hospital bills sent to Plaintiff "were sent due to a lack of knowledge of any representation of [Plaintiff] by counsel, and without knowledge of any pending or final bankruptcy action."
Plaintiff objects that the Magistrate Judge recommended denial of Plaintiff's motion for summary judgment based in part on genuine issues of fact as to Defendants' entitlement to the bona fide error defense. Plaintiff complains that the Magistrate Judge disregarded the fact that she expressly sought summary judgment "as to liability alone, without consideration of any bona fide error defense pled in this action by any defendant." (Dkt. 46 at 3). However, a defendant's "liability" cannot be established by a motion for summary judgment that expressly declines to challenge the non-movant's entitlement to an affirmative defense asserted in the pleadings.
The Magistrate Judge's Report and Recommendation (Dkt. 45) is adopted, confirmed, and approved and is made a part of this order for all purposes, including appellate review.
Plaintiff's Motion for Partial Summary Judgment as to Liability Only (Dkt. 14) is
Defendant St. Joseph's Hospital, Inc.'s Motion for Summary Judgment (Dkt. 40) is
Defendant MFP, Inc.'s Motion for Summary Judgment (Dkt. 41) is
ELIZABETH A. JENKINS, United States Magistrate Judge.
Before the court is Plaintiff's
On August 29, 2008, Plaintiff filed a petition for bankruptcy in the United States Bankruptcy Court for the Middle District of Florida. In her petition, Plaintiff listed a debt of $459.15 owed to St. Joseph's Hospital.
On or about September 5, 2008, a notice of Plaintiffs bankruptcy filing was served on St. Joseph's Hospital. On December 12, 2008, Plaintiff was granted a discharge under Chapter 7 of the Bankruptcy Code; St. Joseph's Hospital was served with a notice of Plaintiffs discharge on or about the same date.
During the pending bankruptcy proceeding, Plaintiff received two billing letters from St. Joseph's Hospital dated September 11, 2008 and October 8, 2008. Plaintiff also received a collection notice, dated November 18, 2008, from MFP regarding Plaintiffs debt to St. Joseph's Hospital. This notice advised Plaintiff that "This claim has been placed with us for collection by St. Joseph's Hospital" (Dkt. 5, Ex. B). Plaintiff also received two dunning letters from MFP, dated December 18, 2008, and February 18, 2009. The December 18, 2008 notice requested payment in full of the debt within 21 days. The February 18, 2009 notice to Plaintiff provided in relevant part that: "This is our third notice to you and we need to make a decision on this matter. We would like to inform our client that you have made arrangements to pay the balance in full.... Please remit payment in full within 14 days from the date of this letter" (Dkt. 5, Ex. D).
Plaintiff alleges that Defendants are liable for Plaintiffs actual and statutory damages resulting from violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq. ("FCCPA"), because Defendants mailed collection notices to Plaintiff during a pending bankruptcy proceeding in which Plaintiff was represented by counsel. Plaintiff moves for partial summary judgment "as to liability alone, without consideration of any bona fide error defenses" (Dkt. 14 at 1).
Pursuant to Rule 56, 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). An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. Hairston v. Gainesville Sun Publ'g. Co., 9 F.3d 913, 919 (11th Cir.1996) (citation omitted).
The movant bears the initial burden of showing that no issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When a moving party has met its burden, the nonmoving party must then "go beyond the pleadings," and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, identify specific facts showing there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. In determining whether the moving party has discharged its burden of establishing that there is no genuine issue of any material fact and that it is entitled to judgment as a matter of law, the court must draw all reasonable inferences in the light most favorable to the nonmovant. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir.1990).
Plaintiff argues that MFP violated sections 1692c(a)(2), 1692e(2)(A), and 1692f(1) of the FDCPA by sending Plaintiff three
MFP asserts that, when it mailed the billing notices to Plaintiff, it lacked actual knowledge of Plaintiffs legal representation and Plaintiff's bankruptcy and therefore, Plaintiff's motion should be denied. Furthermore, MFP argues that Plaintiffs motion should be denied because it has a bona fide error defense under the FDCPA.
Although Plaintiff asserts that the FDCPA imposes strict liability on any debt collector that violates its provisions, the express language of section 1692c(a)(2) requires actual knowledge on part of the debt collector. Section 1692c(a)(2) provides that, without the prior consent of the consumer given directly to the debt collector, "a debt collector may not communicate with a consumer in connection of any debt... if the debt collector
According to the affidavit of Hepsibeth Nasso ("Nasso"), Operations Manager of MFP, St. Joseph's Hospital did not notify MFP of Plaintiffs representation by counsel or Plaintiffs bankruptcy action (Nasso Affidavit at 119). Nasso also states that Plaintiff did not inform MFP that she had filed for bankruptcy or that she was represented by counsel prior to MFP's mailing of the collection letters (Id. at ¶ 11). Plaintiff does not allege MFP had actual knowledge of Plaintiffs representation by counsel. Nor has Plaintiff controverted MFP's assertion that it lacked knowledge of Plaintiffs representation by counsel or Plaintiffs bankruptcy action prior to mailing the dunning letters. Accordingly, there is a genuine issue of material fact regarding MFP's actual knowledge of Plaintiffs representation by counsel during her bankruptcy proceeding.
Plaintiff also argues that MFP violated sections 1692e(2)(A) and 1692f(1) by sending dunning letters to Plaintiff after she filed for bankruptcy and while she was represented by counsel. MFP contends that Plaintiff is not entitled to partial summary judgment on these claims because it is entitled to the bona fide error defense.
A debt collector may not use any false, deceptive, or misleading misrepresentations or means in collecting a debt. 15 U.S.C. § 1692e. Section 1692e(2)(A) prohibits a debt collector from falsely representing
"The FDCPA does not ordinarily require proof of intentional violation and, as a result, is described by some as a strict liability statute." LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir.2010) (citation omitted). Pursuant to 1692k(c) of the FDCPA, a debt collector may not be held liable "if the debt collector shows by a preponderance of 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." 15 U.S.C. § 1692k(c). To prove this defense, the debt collector must show by a preponderance of the evidence that its violation of the FDCPA: (1) was not intentional, (2) was a bona fide error, and (3) occurred despite the maintenance of policy and procedures reasonably adapted to avoid any such error. Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352-53 (11th Cir.2009). "To be considered a bona fide error, the debt collector's mistake must be objectively reasonable." Id. at 1353. The court should apply the objective "least-sophisticated consumer" standard in determining whether a violation of sections 1692e and 1692f of the FDCPA has occurred. LeBlanc, 601 F.3d at 1193-95, 1200-01.
Here, MFP asserts that it had no knowledge that Plaintiff was represented by counsel when it mailed the collection notices (Nasso Affidavit at ¶ 9). Further, MFP asserts that it relied on St. Joseph's Hospital for collection accounts involved in a bankruptcy proceeding and to advise MFP of a bankruptcy filing (Id. at ¶ 10). MFP alleges that it maintains policies and procedures for handling debtors involved in a bankruptcy proceeding or being represented by counsel (Id. at ¶¶ 12, 14). MFP trains its employees to indicate in a debtor's file when a notice of bankruptcy has been filed, to cease all collection actions, and to close and return the account to the original creditor (Id. at ¶ 12). Similarly, MFP trains its employees to notate in a debtor's account the debtor's counsel's information and to cease any direct contact with the consumer (Id. at ¶ 14). MFP contends that it was informed that Plaintiff had filed a Chapter 7 bankruptcy on June 30, 2009 (Id. at ¶ 15). Following notification of Plaintiffs bankruptcy, MFP states that it updated Plaintiff's account, the account was closed, and the account returned to St. Joseph's Hospital (Id.).
Plaintiff fails to cite any evidence that MFP intentionally sent the collection notices to Plaintiff after MFP knew Plaintiff had filed for bankruptcy and while Plaintiff was represented by counsel. There is no evidence that MFP did anything other than rely on the information obtained from St. Joseph's Hospital. Additionally, Plaintiff does not challenge MFP's policies and procedures as being insufficient and not reasonably adapted to avoid the errors at issue. Accordingly, there are genuine issues of material fact regarding Plaintiffs defense of a bona fide error. Specifically, genuine issues of fact exist with respect to: (1) whether MFP committed a "bona fide" error in sending Plaintiff collection notices, (2) whether MFP reasonably relied on the information transmitted by St. Joseph's Hospital to MFP, and (3) whether MFP had reasonable policies and procedures in place to avoid the errors. Therefore, the court recommends that Plaintiffs motion for partial summary judgment on Plaintiff's
Plaintiff argues that MFP violated sections 559.72(9) and 559.72(18) of the FCCPA when it sent three dunning letters to Plaintiff, who was represented by counsel. MFP maintains that it had no actual knowledge that Plaintiff was represented by counsel or that Plaintiff had filed for bankruptcy when it mailed the collection notices.
The purpose of the FCCPA is to eliminate abusive and harassing tactics in the collection of debts. Trent v. Mortgage Elec. Registration Sys., 618 F.Supp.2d 1356, 1361 (M.D.Fla.2007). Section 559.72(9) provides that no person shall "claim, attempt, or threaten to enforce a debt when such person
As previously discussed, MFP asserts that, when it mailed the collection notices, it lacked knowledge of Plaintiff's bankruptcy action and Plaintiff's representation by counsel (Nasso Affidavit at ¶¶ 9,15). Plaintiff fails to cite to any affidavit or deposition testimony that establishes MFP knew the debt was not legitimate, MFP knew it was asserting a non-existent right, or MFP knew Plaintiff was represented by counsel when it sent the collection letters. Moreover, Plaintiff's argument that MFP is strictly liable under sections 559.72(9) and 559.72(18) of the FCCPA is without merit because a debtor must demonstrate actual knowledge on the part of the debt collector to establish a violation of these provisions.
Plaintiff also alleges that MFP violated section 559.72(7) by sending out the collection notices to Plaintiff while Plaintiff was protected by the bankruptcy automatic stay and represented by counsel.
Pursuant to Section 559.72(7), a person may not "[w]illingly communicate with a debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family." Fla. Stat. § 559.72(7). To prove a violation under section 559.72(7), a plaintiff must show (1) that the communication(s) by the debt collector was willfully placed, and (2) that there was a frequency of willful communication that could reasonably be expected to harass the debtor. Beeders v. Gulf Coast Collection Bureau, 632 F.Supp.2d 1125, 1129 (M.D.Fla.2009). In determining whether the debt collector's actions were willful and frequent, a court will consider the number of communications, the date of the communications, and the content of the communications. Id. at 1129. A plaintiff must show that the debt collector had the knowledge or intent to willfully engage in conduct that harassed the consumer. Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1363 (S.D.Fla.2000). Generally, whether a debt collector's actions harass, oppress, or abuse a consumer is a question for the jury. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir.1985).
Viewing the evidence in the light most favorable to MFP, there is a genuine issue of material facts as to whether MFP had the requisite knowledge or intent to annoy, abuse, or harass Plaintiff. There is also a genuine issue as to whether MFP's three notices sent over a period of four months were of such a frequency as to reasonably be expected to abuse or harass Plaintiff. Therefore, Plaintiffs motion for partial summary judgment on Plaintiffs FCCPA claims should be denied.
Plaintiff alleges that St. Joseph's Hospital violated the FDCPA and the FCCPA by sending Plaintiff five dunning notices over a six-month period while Plaintiff was represented by counsel in her bankruptcy proceeding.
St. Joseph's Hospital responds that it is not a debt collector as defined by the FDCPA and FCCPA (Dkt. 26 at 3). St. Joseph's Hospital also contends that it had no knowledge that Plaintiff was represented by counsel in the bankruptcy proceeding when the billing statements and dunning letters were sent to Plaintiff. St. Joseph's Hospital also argues that the billing statements and dunning letters were sent as the result of a bona fide error.
According to Dawn Cox ("Cox"), an employee of BayCare Health Systems ("Bay-Care"), St. Joseph's Hospital does perform its own billing and "BayCare processes the bills and forwards the invoices to patients for payment" (Cox Affidavit, Dkt. 26-2 at 113, ¶ 5). Cox contends that "[n]either Bay-Care nor St. Joseph's Hospital are Consumer Collection Agencies, as defined by the Florida Statutes" (Id. at ¶ 4). Further, Cox states that if billing statements were sent to Plaintiff, "they were sent due to a lack of knowledge of any representation of the former patient by counsel, and without knowledge of any pending or final bankruptcy action" (Id. at ¶ 6). Cox asserts that the billing statements "were sent in the ordinary course of business and were not intended to be harassing or abusive in their content or frequency" (Id. at ¶ 7). Finally, Cox states that Plaintiff received the two billing statements and three dunning letters as a "result of a bona fide error, notwithstanding St. Joseph's Hospital and BayCare's maintenance of procedures reasonably adapted to avoid such errors" (Id. at ¶ 8).
To prevail on a FDCPA claim, a plaintiff must prove that: (1) the plaintiff has been the object of collection activity, (2) the defendant is a debt collector, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. Kaplan, 88 F.Supp.2d at 1360-61. The FDCPA defines a "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6).
15 U.S.C. §§ 1692a(6)(A), (6)(B), (6)(F). Further, the term "creditor" is defined as "any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another." 15 U.S.C. § 1692a(4).
St. Joseph's Hospital argues that Plaintiffs motion should be denied because St. Joseph's Hospital and BayCare are not debt collectors for purposes of the FDCPA and FCCPA. St. Joseph's Hospital is apparently asserting that one of the exceptions to definition of debt collector applies to St. Joseph's Hospital and BayCare.
Although Plaintiff does not allege that St. Joseph's Hospital is a "debt collector" in her amended complaint, Plaintiff asserts that St. Joseph's Hospital violated the FDCPA while "engaged in debt collection activity" (Dkt. 5 at 1113). Viewing the evidence in the light most favorable to St. Joseph's Hospital, at a minimum, there are genuine issues of material fact as to whether St. Joseph's Hospital and Bay-Care fall under one of the exceptions of the debt collector and whether St. Joseph's Hospital collects debts as a creditor.
Assuming St. Joseph's Hospital is a debt collector, there are also genuine issues of material fact as to whether St. Joseph's Hospital had the requisite knowledge to violate the FDCPA and the FCCPA. Plaintiff does not allege St. Joseph's Hospital had actual knowledge of Plaintiff's legal representation or Plaintiffs bankruptcy proceeding when the dunning notices were sent to Plaintiff. Nor has Plaintiff controverted St. Joseph's assertion that St. Joseph's Hospital and BayCare maintained policies and procedures reasonably adapted to avoid the errors at issue. Accordingly, there are genuine issues of material fact regarding: (1) whether St. Joseph's Hospital had actual knowledge of Plaintiff's representation by counsel during her bankruptcy proceeding prior to the mailing of collection notices by BayCare and MFP, (2) whether St. Joseph's Hospital committed a "bona fide" error in sending Plaintiff collection notices, (3) whether St. Joseph's Hospital and BayCare had reasonable policies and procedures in place to avoid the errors, (4) whether St. Joseph's Hospital had the requisite knowledge or intent to annoy, abuse, or harass Plaintiff, and (5) whether the five collection notices sent over a period of six months were of such a frequency as to
It is therefore
