CATHERINE D. PERRY, District Judge.
Calvin Williams obtained a $500 personal loan from Castle Payday Loans in April 2013. In August 2013, National Credit Adjusters, LLC ("NCA"), contacted Williams to collect on the debt. During the course of this collection effort, Williams and NCA set up a modified repayment plan, and NCA thereafter attempted to collect on the modified plan. In this action, Williams claims that the tactics used by NCA in its attempt to collect the debt violated the Missouri Merchandising Practices Act (MMPA) and the Federal Debt Collection Practices Act (FDCPA). NCA now moves for summary judgment on the claims. I will deny the motion.
The FDCPA prohibits debt collectors from engaging "in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. The FDCPA also prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt," 15 U.S.C. § 1692e; as well as the use of "unfair or unconscionable means" to collect a debt, 15 U.S.C. § 1692f. The MMPA makes unlawful "[t]he act, use or employment . . . of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce." Mo. Rev. Stat. § 407.020.1. Under the MMPA, "[m]erchandise" includes "any objects, wares, goods, commodities, intangibles, real estate or services." Mo. Rev. Stat. § 407.010.4. The protections of the MMPA apply to loan collection practices inasmuch as such practices are "in connection with" the "sale" of a loan. Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 415-16 (Mo. banc 2014).
In this action, Williams claims that NCA violated the MMPA and FDCPA by misrepresenting its authority to resolve or collect on the original debt; engaging in threatening and harassing conduct in its communications regarding debt collection; continuing to contact him at work despite his request that such calls stop; attempting to directly contact him despite its knowledge that Williams was represented by legal counsel in relation to NCA's debt collection efforts; and failing to meaningfully disclose its identity when calling him after he filed this lawsuit. NCA concedes that these acts would violate the law if they were true. It argues, however, that Williams fabricated the circumstances giving rise to these claims and that no reasonable jury could believe Williams' stories. Arguing that the issues of fact in this case are therefore not "genuine," NCA contends that it is entitled to judgment as a matter of law on Williams' claims. I am not convinced.
When considering a motion for summary judgment, I must view the facts and inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). As the moving party, defendant must establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in his pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e).
At the summary judgment stage, courts do not weigh the evidence and decide the truth of the matter, but rather determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249. However, summary judgment may be appropriate "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it[.]" Scott v. Harris, 550 U.S. 372, 380 (2007). In such circumstances, the mere existence of some alleged factual dispute will not serve to defeat summary judgment; instead, the factual dispute must be "genuine." Id.
Plaintiff Calvin Williams obtained a personal loan from Castle Payday Loans in April 2013. NCA began collection efforts on the loan in August 2013.
Victor Perez, an NCA collection agent, spoke with Williams on August 7, 2013, and explained that, given Williams' failure to pay on the loan, Castle Payday wanted to take a more aggressive approach to collect on the debt and sold Williams' account for collection.
Perez and Williams exchanged numerous telephone calls regarding the status of the debt and setting up arrangements for Williams to pay it off.
Williams has presented evidence that beginning in October 2013 and continuing through February 2014, he received voicemail messages on his cell phone from persons identifying themselves as representatives of NCA, including calls from a person identifying himself as Victor Perez.
Williams contends that, following his receipt of the first inappropriate voicemail message, he instructed NCA during a telephone conversation to no longer call him at work. NCA denies that Williams gave any such oral instruction. Williams later instructed NCA by letter dated December 11, 2013, to not contact him at work.
NCA argues that the harassing and threatening voicemail messages were fabricated and orchestrated by Williams and were not originated by NCA or any of its employees, agents, or associates. As evidence, NCA points to audio recordings of three calls made in December 2013 and January 2014 that it contends originated from Williams' workplace and were directed to NCA during which unidentified persons requested or obtained the name of the NCA representative who answered the call.
To the extent the caller who left some of these offensive messages identified himself as Victor Perez, NCA points to noticeable differences regarding the tone and quality of Perez's actual voice when compared to the voice attributed to him in these calls. NCA raises this same contention in relation to another NCA representative as well, Rachel Wilson-Banks. In addition to arguing that the voices are "obviously" dissimilar, NCA presents the reports of audio and voice comparison experts who have concluded there to be "probable elimination" between the voices — that is, that the voices attributed to Perez and Wilson-Banks in the offensive calls are not their true voices.
To the extent that the caller ID feature on Williams' cell phone showed the offensive calls to originate from unknown numbers or from numbers associated with NCA, NCA contends that Williams was familiar with "spoofing" whereupon calling data is manipulated by a user to show a telephone call coming from a number other than the actual telephone number assigned to the device making the call. NCA also contends that Williams was familiar with other technology that permits a user to disguise his/her voice on telephone calls.
NCA argues that the timing of the offensive calls, the dissimilarities between the known and unknown voices, the "unknown" numbers from which these calls originated, and Williams' knowledge regarding manipulating calling data shows that Williams fabricated the circumstances underlying his claims and that the offensive conduct cannot be attributed to NCA. NCA argues that the objective evidence of record — including telephone records from NCA's service provider, calls recorded by NCA, and expert reports — is contradicted only by Williams' stories, which lack evidentiary support. It is not for me, however, to decide these issues of fact on summary judgment.
A "judge's function" at summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam). Where witnesses on both sides come with their own perceptions, recollections, and even potential biases, genuine disputes are generally resolved by juries in our adversarial system. If I were to weigh the evidence and reach factual inferences contrary to Williams' evidence, I would neglect to adhere to the fundamental principle that at the summary judgment stage: reasonable inferences should be drawn in favor of the nonmoving party. Id. at 1868.
NCA urges me to apply the Supreme Court's reasoning in Scott v. Harris to the situation here. In Scott, the Supreme Court found that video footage of a police chase conclusively demonstrated, contrary to the plaintiff's account of the event, that police had acted reasonably under the circumstances and had not committed a constitutional violation, thus entitling them to qualified immunity. 550 U.S. at 380-81. Indeed, the Supreme Court found the plaintiff's version of the facts to be "so utterly discredited" by the facts depicted on the videotape "that no reasonable jury could have believed" his claims. Id. at 380. As a result, the Supreme Court reversed the denial of summary judgment, holding that the lower court should not have relied on the plaintiff's "fiction[al]" statements, but instead, "it should have viewed the facts in the light depicted by the videotape." Id. at 380-81. This case does not present a situation similar to Scott.
"When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott, 550 U.S. at 380. Although NCA argues here that audio recordings and expert reports conclusively disprove Williams' account of the incidents in question, the evidence in this case is simply not as conclusive as the video in Scott. For instance, NCA has submitted various audio recordings in support of this motion, averring that all calls between handlers and debtors are recorded.
Simply put, while the evidence submitted to me raises questions about the validity and authenticity of the calls at issue, that is precisely the issue to be resolved. I am prohibited from making credibility judgments on a motion for summary judgment. Mershon v. St. Louis Univ., 442 F.3d 1069, 1075 (8th Cir. 2006) (citing Yates v. Rexton, Inc., 267 F.3d 793, 800 (8th Cir. 2001)). The evidence before the Court does not "blatantly contradict" Williams' version of the events so completely that no reasonable jury could believe it. I conclude that the decision in Scott does not preclude Williams from pursuing his claims against NCA. See Edwards v. Byrd, 750 F.3d 728, 733 (8th Cir. 2014).
NCA also argues that, regardless of the factual disputes in the case, it is entitled to summary judgment on Williams' MMPA claim inasmuch as NCA's calls to Williams were made for the purpose of modifying the debt rather than collecting on the original Castle Payday loan. In his complaint — as well as in response to NCA's motion — Williams claims that the modified loan itself constituted a new sale to which the MMPA applies. NCA does not address this aspect of Williams' claim.
For purposes of the MMPA, "a loan is an agreed upon bundle of services being `sold' by the lender to the borrower, and the `sale' of a loan lasts until the last service is performed or the loan is repaid." Conway, 438 S.W.3d at 412. Allegations of deception in the course of those services are "in connection with" the "sale," even where the party committing the alleged deception is not the seller. Id. "As long as the plaintiff alleges that the misconduct occurred in connection with the services that comprise the `sale' of a loan, the actor can be liable under the MMPA." Id. "Because a loan is an ongoing transaction, loan collection procedures . . . are done `in connection with' the original procurement of the loan." Id. at 416. To the extent Williams challenges NCA's conduct in its attempt to collect on the underlying Payday loan, including its authority to collect on the loan, Conway squarely places the claim under the MMPA.
Where parties negotiate for loan modification, however, the creation of a new agreement is contemplated rather than enforcement of the terms of the original loan. As such, actions related to loan modifications are not "in connection with" the sale of the original loan, and the MMPA does not apply to those actions — at least where a party bases its claim on the original loan. Watson v. Wells Fargo Home Mortg., Inc., 438 S.W.3d 404, 408 (Mo. banc 2014). See also Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 899 (8th Cir. 2014). Here, the repayment terms of the Payday loan were modified through repeated negotiations between NCA and Williams. The renegotiation of these terms was not a service Castle Payday agreed to sell or Williams agreed to buy when they entered into the April 2013 loan agreement. As such, NCA was not enforcing the terms of the April 2013 loan when it modified the terms of repayment and the payment schedule. Therefore, its negotiations to modify the terms of the loan were not "in connection with" the April 2013 loan. Wivell, 773 F.3d at 899 n.2; Geran v. Xerox Edu. Servs., Inc., ___ S.W.3d ___, No. WD 77507, 2015 WL 2392375, at *5 (Mo. Ct. App. May 19, 2015).
The story does not end there, however. NCA was successful in its negotiations with Williams to modify the terms of the loan, which resulted in substantial changes to the repayment plan, the schedule by which payments were to be made, the amounts to be paid incrementally, and the total amount required to satisfy the debt. Williams agreed to these modifications as demonstrated by his recorded statements — prompted by Perez — that he "agreed[d] to the payments and [would] make sure the money is available."
"The use of an unlawful practice is a violation of the MMPA `whether committed before, during or after the sale,' so long as it was made `in connection with' the sale." Conway, 438 S.W.3d at 414 (quoting Mo. Rev. Stat. § 407.020.1). Williams claims that NCA engaged in unlawful conduct in connection with an independent sale, that is, the loan modification agreement; and that such unlawful conduct occurred during its negotiations with Williams to enter into the agreement and through its collection efforts thereon. As noted earlier, NCA does not challenge the applicability of the MMPA to the loan modification agreement to the extent Williams claims it is a new sale.
NCA's motion for summary judgment will be denied as to Williams' MMPA claims.
On the information before the Court, and viewing all facts and inferences in the light most favorable to Williams, Matsushita Elec. Indus. Co., 475 U.S. at 587, I cannot say that NCA has established its right to judgment with such clarity as to leave no room for controversy and that Williams is not entitled to prevail under any discernable circumstances. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980).
Accordingly,
