MEMORANDUM

CHRISTOPHER C. CONNER, District Judge.

Before the court are the parties' cross-motions for summary judgment (Docs. 11, 15), wherein plaintiffs Gerald and Joy Searle and defendant Credit Adjustments, Inc. (CAI), respectively seek judgment in their favor on all claims. The complaint alleges that CAI violated several provisions of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 to 1692p (West 2012), including those prohibiting misleading, harrassing, deceptive, and abusive conduct. For the reasons that follow, the court will deny the Searles' motion in full and grant CAI's motion in part.

I. Background

The facts as set forth herein are undisputed unless otherwise noted, drawn from the parties' statements of facts and responses thereto (Docs. 21, 22, 23, 25), from the exhibits supporting the complaint and the motions (Docs. 1-1 to 1-4, Docs. 12-1 to 12-4, Doc. 14-7), and from the complaint's averments admitted in the answer (Docs. 1, 7). They are recounted only as necessary for disposition of the instant motions.

Gerald and Joy Searle are consumers living in Ohio. (Doc. 21, ¶ 1; Doc. 22, ¶ 1; Doc. 23, ¶ 1; Doc. 25, ¶ 1.) CAI is a debt collector with a business address in Ohio. (Doc. 21, ¶ 1; Doc. 25, ¶ 1; Doc. 1, ¶ 5; Doc. 7, ¶ 5.) On June 20, 2007, Midwest Community Health Associates referred an account in Gerald Searle's name in the amount of $2558.08 to CAI for collection. (Doc. 22, ¶ 1; Doc. 23, ¶ 1.)

CAI maintains that on the same day that Midwest referred Mr. Searle's account to it, it issued the first of a series of written communications to Mr. Searle regarding the debt, the amount owed, and CAI's intent to collect upon the debt. (Doc. 22, ¶¶ 4, 8). The Searles, however, deny ever having received any communications from CAI until CAI sent them a letter dated September 17, 2010; the parties agree that such a letter was sent. (Doc. 22, ¶ 11; Doc. 23, ¶ 11; see also Doc. 1-1, at 2 (reproducing the Sept. 17, 2010 letter).) The letter, addressed to Gerald Searle, stated that the total balance on all accounts was $3222.48 and informed him of certain unpleasant consequences that could attend his failure to pay the full balance within ten days of the letter's date:

CAI sent Mr. Searle another letter on October 7, eleven days after the September 17 letter, which stated CAI's intention to take legal action against Mr. Searle if he failed to pay up:

(Doc. 22, ¶ 16; Doc. 23, ¶ 16; see also Doc. 1-2 (reproducing the Oct. 7, 2010, letter).)1

Mrs. Searle called CAI the following Tuesday, October 12, and spoke with Danielle, one of CAI's employees. (Doc. 22, ¶ 24; Doc. 23, ¶ 24.) CAI provided a transcript of the conversation. (Doc. 12-2) Since the particulars of CAI's conduct, including Danielle's conduct, are at issue in the instant action, portions of the conversation are reproduced here.2 Early in the call, Danielle identified the sum that CAI had been referred from Midwest:

(Id. 2:24-3:10, Doc. 12-2, at 4-5.) The conversation continued to a brief discussion about an "older judgment" in CAI's system that dated to July 2008:

(Id. 3:11-20, Doc. 12, at 5.) Mrs. Searle promptly returned the topic to the primary charge of over $3000:

(Id. 3:25-4:14, Doc. 12, at 5-6.) Seeking then to get an itemized list of the charges involved, Mrs. Searle got sidetracked with Danielle into a tangent about whether CAI uses email to communicate with consumers:

(Id. 4:15-5:10, Doc. 12, at 6-7.) A moment later, Mrs. Searle refocused the conversation on her wish to receive an itemized list of the charges CAI said that her husband owed, but Danielle explained that she might not be able to oblige:

(Id. 5:25-7:20, Doc. 12, at 7-9.) Before the end of the conversation, Danielle reminded Mrs. Searle that CAI would seek judicial remedies unless a payment plan were set up:

(Id. 8:5-9:8, Doc. 12, at 10-11.)

Mr. Searle wrote CAI a letter that same day, October 12, 2010, noting that he was writing in response to the letters of September 17 and October 7 (the only two he had received, he wrote), requesting validation of the debt. (Doc. 1-3, at 2.) CAI responded on October 19, sending the Searles an "Account Charge Activity Summary," which itemized the services that the total bill from CAI comprised. (Doc. 22, ¶ 36-37; Doc. 23, ¶¶ 18-42;3 see also Doc. 12-1, at 15-16 (reproducing the itemized list of charges).)

The record contains no evidence of any communications between the parties or activities conducted by them during the following four weeks.

On November 17, 2010, CAI filed a complaint against Mr. Searle in Fulton County Eastern District Court, Ohio. (Doc. 22, ¶ 38; see also Doc. 1-4 (reproducing the Ohio state-court complaint).) The complaint sought judgment in the amount of $2,558.08—the total amount shown in the itemized list of charges sent that CAI sent to the Searles—plus interest from March 13, 2007.4 (Doc. 1-4, at 2.) According to an unofficial docket sheet for the case, CAI obtained a default judgment against Mr. Searle on March 1, 2011, which awarded CAI the $2,558.08 it sought, 4% interest on that sum accruing from March 13, 2007, and costs. (Doc. 12-3, at 2.)

Meanwhile, the Searles initiated the instant action with the filing of their complaint (Doc. 1) on November 24, 2010, one week after CAI filed suit against Mr. Searle in Ohio state court. CAI answered on January 20, 2011 (Doc. 7), and after completion of discovery, both parties filed motions for summary judgment. CAI filed their motion and brief in support (Docs. 11, 12) on June 15, 2011—timely filed according to the case management order (see Doc. 10)—but the Searles neglected to file their cross-motion (Doc. 15) until July 6, 2011, fully three weeks past the deadline, and without leave from the court to file belatedly.5 In any event, both motions are now fully briefed and ripe for disposition.6

II. Standard of Review for Cross-Motions for Summary Judgment

Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and as to which a party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a). The burden of proof is upon the nonmoving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(a), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

In the instant matter, the parties have filed cross-motions for summary judgment. According to the Third Circuit:

Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). Each movant must show that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the court must deny the motions. See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008). When reviewing each motion, the court is bound to view the evidence in the light most favorable to the nonmovant. FED. R. CIV. P. 56; United States v. Hall, 730 F.Supp. 646, 648 (M.D. Pa. 1980).

III. Discussion7

Enacted in 1977, the Fair Debt Collection Practices Act, as its name implies, was passed into law with the intention of curbing the "abundant . . . abusive, deceptive, and unfair debt collection practices" that debt collectors commonly employed. 15 U.S.C. § 1692(a). The purpose of the FDCPA is explicitly to eliminate those abusive debt-collection practices and encourage states and local governments to take consistent measures to protect their residents against debt-collection abuses. Id. § 1692(e). In apparent recognition of many debt collectors' creativity in developing methods of encouraging debtors to pay up, many of the Act's provisions are cast in broad terms, and its subdivisions contain long, open-ended lists of examples of conduct that violate the Act.

In their complaint, the Searles allege violations of §§ 1692d, e, and f generally, with specific mention of subsections e(4), e(5) e(10), f(5), and f(10). (Doc. 1, ¶ 38.) Their single brief submitted in connection with the instant motions discusses only §§ 1692e and f(1) (Doc. 14, at 5) and makes passing reference to §§ 1692d, e, and f (Doc. 14, at 8)—thus complicating the task of ascertaining on what grounds and claims the Searles argue for summary judgment. CAI, for its part, devotes most of its briefing to what amount to affirmative defenses based on their alleged compliance with the notice and debt-verification requirements of § 1692g and with applicable portions of Ohio state law. (Doc. 12, at 8-11.) CAI otherwise makes specific arguments only as to FDCPA §§ 1692e(4), f(5), f(6), and f(1). (Doc. 12, at 11-13; Doc. 18, at 2. These discrepancies and variations make the usual seriatim approach to the issues perhaps more troublesome than helpful; the following discussion instead proceeds by addressing, in groups, classes of arguments or related concepts whenever such grouping is possible. First, though, a brief overview of the relevant FDCPA provisions will provide some useful background for the ensuing analysis.

A. Relevant FDCPA provisions

The instant motions pose questions arising under four major sections of the FDCPA and at least eight subsections:

Because many of CAI's arguments for summary judgment in its favor are predicated on compliance with § 1692g(a)—compliance that CAI has failed thus far to establish—the analysis turns directly to the group of questions that such noncompliance poses.

B. CAI's failure to establish its compliance with the notice provisions of § 1692g(a)

CAI insists that it first sent correspondence to Mr. Searle on June 20, 2007, the same day that Midwest referred the Searle account to CAI. (Doc. 22, ¶ 4; Doc. 12, at 2.) This correspondence allegedly included the required notice under § 1692g(a), including the statement that unless the consumer disputes the validity of the debt within thirty days of receipt of the notice, the debt collector may assume that the debt is valid. (Doc. 12, at 2.) CAI maintains that it sent "additional correspondence" to Mr. Searle on three other occasions in 2007, but received responses from Mr. Searle to none of them. (Id.)

In support of these asseverations, CAI has submitted an affidavit by Gary Foreman, CAI's Operations Manager, along with several attachments. (Doc. 12-1.) Foreman's affidavit echoes what CAI says elsewhere about the company's putative 2007 letters sent to Mr. Searle. (Id. ¶¶ 6, 8.) Although Foreman alleges having personal knowledge of the Searle account (id. ¶ 1), he qualifies his statements about CAI's 2007 letters by saying that the letters were sent "[a]ccording to CAI's account records" (id. ¶¶ 6, 8). In fact, he admits that CAI does not have a copy of any of the four letters that the company claims to have sent to Mr. Searle in 2007. (Id.) The "letters" attached to the affidavit (id. at 11-15) were "true and accurate samples," assured Foreman, but such "samples" establish no facts relevant to CAI's defense.

As to CAI's records that it kept for Mr. Searle's account, which are also attached to Foreman's affidavit, such records are inscrutable to one unfamiliar with CAI's coding system. For instance, among the entries in the account records dated June 20, 2007, four bear a timestamp of 16:29:33, are listed as type "S" entries, and indicate that user "sys" made these entries. (Id. at 4.) In the order they appear in the records, the "notes" section of the four entries read:

(Id.) One might hazard a guess that these notes mean that, shortly before the close of business on June 20, 2007, CAI sent a letter to Mr. Searle that contained the notice required in 15 U.S.C. § 1692g(a), but a guess is all that would be. Further, making such a guess and then, on that basis, considering it an established undisputed fact that the letter was indeed sent on June 20, 2007, would require (a) resolving all doubts as to the existence of a dispute over a material fact—here, the sending of the letter on June 20—in CAI's favor, and (b) making all reasonable inferences and interpretations of the evidence in the way most favorable to CAI, which is precisely the opposite of what the applicable standard of review requires.

Moreover, portions of the transcript of the telephone conversation between CAI's employee Danielle and Mrs. Searle undercut CAI's claim that it sent Mr. Searle any written communications before September 17, 2010. At one point in that conversation, Mrs. Searle said, "[T]his letter that I have in my hand is dated October 7th[, 2010]. We got one previous to that and my husband did respond to it." (Doc. 12-2, at 6, lines 16-19.) A moment later, still in the same conversational thread, Mrs. Searle said, "I just have the second [letter] in front of me. But—like the same day that we got it, he—umm, sent something." (Id. at 7, lines 5-6.) Danielle responded: "Okay. Yeah, that would have been back in September, mid September, when he would have gotten that . . . ." (Id., lines 7-8.) One plausible interpretation of this dialogue—and an appropriate one to make, in reviewing CAI's motion for summary judgment—is that Danielle was agreeing with Mrs. Searle's statement that the first letter that CAI ever sent to Mr. Searle was in September 2010, not June 2007.

CAI's failure to establish that it sent any written communication to Mr. Searle in 2007 dooms its contention that it complied with FDCPA § 1692g(a). This failure knocks down, like a chain of dominoes, every other argument that relied on CAI's ostensible compliance with § 1692g(a): lacking such compliance, CAI was not entitled to presume that Mr. Searle's debt was valid, which casts the letters that CAI sent to Mr. Searle beginning in September 2010 in a very different light.

The September 17, 2010 letter told Mr. Searle that he owed $3,222.48 to an unnamed creditor and that he had ten days to pay this amount in full to CAI, lest his "account(s) be referred to [CAI]'s attorney . . . with instructions to seek judgment." (Doc. 1-1, at 2.) The letter threatened Mr. Searle with garnishment of his wages and with the prospect of "[a]ttachment of real estate and/or personal property" if CAI deemed it "necessary" to "settle [the] matter." (Id.)

Assuming for the purposes of deciding CAI's motion that the September 17, 2010, letter was the first time Mr. Searle had heard from CAI, CAI has no entitlement to summary judgment on a claim under § 1692d, as such a letter smacks of the harassing, oppressive, and abusive conduct that § 1692d was intended to prevent. Similarly, CAI cannot prevail on its motion as to § 1692e or any of the subsections under which the Searles claim (i.e., subsections (4), (5), and (10)); the representations in the September 17 letter are easily characterized as "false, deceptive, or misleading." Without having given the notice required by § 1692g, the representation of the amount of the debt was false;8 the implication that CAI had the lawful right to seek judgment against Mr. Searle for over $3,000 was false; and the implication that CAI had the right to demand such a sum from Mr. Searle lest his wages be garnished or property seized was also false. By the same token, CAI cannot defeat either the Searles' general § 1692f claim or their § 1692f(1) claim.9 When the September 17 letter is viewed as the first communication from CAI to Mr. Searle, the threat of "pay up now or face garnishment of your wages and the loss of your house" meets any common-sense definition of "unfair or unconscionable."

Given that the standard of review applicable to CAI's summary-judgment motion require that the September 17, 2010 letter to Mr. Searle be viewed as the company's first written communication to him—a communication that unquestionably fails to satisfy FDCPA § 1692g(a) and was made on the unestablished predicate that Mr. Searle's debt could be assumed valid—CAI's motion for summary judgment must be denied on the Searles' claims under 15 U.S.C. §§ 1692d, 1692e, 1692e(4), (5), and (10), 1692f, and 1692f(1).

C. The Searles' failure to establish any dispute of material fact that would preclude summary judgment against them on their § 1692f(5) and (6) claims

CAI's brief in support of its motion contains sparse but cogent arguments against the Searles' § 1692f(5) and (6) claims. First, as noted above, § 1692f(5) forbids debt collectors from "[c]ausing charges to be made to any person for communications." Id. (emphasis added). A review of the evidence of record reveals nothing to suggest that CAI imposed any such charges on either Mr. or Mrs. Searle.10 Summary judgment is therefore appropriate for CAI on this claim.

CAI makes a similar argument, and the Searles a similar lack of evidentiary showing, in connection with the claim under § 1692f(6), which forbids debt collectors from "[t]aking or threatening to take any nonjudicial action to effect dispossession or disablement of property." Id. (emphasis added). The evidence of all actions that CAI took or threatened to take "to effect dispossession or disablement" of the Searles' property were strictly judicial in nature. (See Doc. 1-1, at 2 (CAI's letter of Sept. 10, 2010, threatening to refer Mr. Searle's account to CAI's attorney "with instructions to seek judgment"; Doc. 1-2, at 2 (CAI's letter of Oct. 7, 2010, informing Mr. Searle that CAI's attorney would be filing a complaint in Ohio state court against him); Doc. 1-3, at 2-6 (reproducing the complaint and attachments that CAI filed against Mr. Searle in Ohio). Summary judgment is therefore appropriate for CAI on the § 1692f(6) claim as well.

D. The Searles' failure to establish as undisputed that the September 17, 2010 letter was the first communication they received from CAI precludes summary judgment in their favor on all claims

As discussed in Part III.B supra, CAI failed to establish that, for the purposes of its motion, it had made written communications to Mr. Searle in 2007. Largely on the basis of those same reasons—and reviewing the evidence in a light most favorable to CAI—the Searles have failed to establish that CAI did not send them letters on June 20, August 10, September 24, or November 8, 2007, and thus failed to establish that the September 17, 2010 letter was the first written communication from CAI.

Evidence to support such a claim is scant: all that exists in the record to support the Searles' contention on this crucial issue of fact is the excerpt from the dialogue between Danielle and Mrs. Searle on October 12, 2010, also discussed in Part III.B supra. In that conversation, Danielle makes a statement that could be taken as a confirmation of Mrs. Searle's contention that CAI had sent Mr. Searle nothing before September 2010. (See Doc. 12-2, at 6, lines 15-19; id. at 7, lines 7-10.)

Yet in that same conversation, Mrs. Searle makes a passing reference to what could have been the 2007 written communications from CAI:

(Id. at 7, line 25, to 8, line 7 (emphasis added).) A moment later in the same conversation, Mrs. Searle said that she requested "itemized lists of bills" (though from whom, she did not say) "a couple years ago." (Id. at 9, lines 5-9.) These portions of the conversation, viewed in a light most favorable to CAI, tend to undermine the Searles' claim that the September 2010 letter was the first that they received from CAI. Foreman's affidavit (Doc. 12-1) and CAI's records of Mr. Searle's account (Id. at 4-10) further undermine the Searles' claim.

Much as the success or failure of CAI's motion for summary judgment turned largely on whether it had established compliance with § 1692g(a), the success of the Searles' motion depends on establishing that the September 17, 2010, letter was CAI's first communication. Stated differently, to succeed in the context of Rule 56, the Searles must refute CAI's contention and circumstantial evidence that they were sent letters in 2007 that gave them notice under § 1692g(a). If they received those letters but failed to respond to them, CAI was entitled to presume the debt was valid per § 1692g(a)(3)—with the consequence that all actions that CAI took in 2010 and 2011, by writing, by telephone, and in court, could not be said to have violated any provision of the FDCPA, at least not for the purposes of adjudicating the instant motions.

By way of further explanation, if CAI did send a § 1692g(a)-compliant letter to Mr. Searle in June 2007 but he failed to dispute the debt in the 30-day period allowed, CAI was entitled to treat the debt as valid, start charging interest as allowed under Ohio law, and seek the judicial remedies that it described in its letters of September and October 2010. The Searles' motion for summary judgment must therefore be denied on all counts.11

IV. Conclusion

For the foregoing reasons, the court will DENY both motions for summary judgment (Docs. 11, 15), with the exception that CAI's motion (Doc. 11) will be granted with respect to the Searles' claims under 15 U.S.C. §§ 1692f(5) and (6). An appropriate order will issue.

ORDER

AND NOW, this 30th day of March, 2012, upon consideration of the cross-motions for summary judgment filed by plaintiffs (Doc. 15) and defendant (Doc. 11), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that: