ORDER

HENRY LEE ADAMS, JR., District Judge.

This Case is before the Court on Defendant's Motion for Summary Judgment (Dkt. 18). Plaintiff has filed a response to the motion and Defendant has filed a reply.

Background

As a threshold matter, this case is related to Tucker v. CBE, Case no.: 3:09-cv-134-25-MCR (Tucker). The Court entered Summary Judgment on Defendant's behalf in that case (Dkt. 43) and granted Defendant's request for sanctions based on its finding that Plaintiffs counsel filed a complaint wherein a majority of the allegations had no basis in fact and then failed to dismiss any of the claims based on these allegations until a summary judgment motion was filed.

To streamline this Order, the Court incorporates the standard and analysis contained in the Tucker summary judgment order.

To address another threshold issue, it appears that Elissa Rhinehart is not Stacey Tucker's legal guardian. Thus, even if Stacey Tucker possessed legally cognizable claims in this case, it appears that Ms. Rhinehart does not have standing to sue on her behalf.1

Even if Ms. Rhinehart has standing to sue, the Court notes the serious deficiencies in the Complaint. Specifically, the Court observes that Plaintiffs Complaint is founded on the following allegations:

1. Defendant constantly and continuously places collection calls to Plaintiff seeking and demanding payment for an alleged debt;

2. Defendant calls Plaintiff at the following telephone numbers: 904-434-3017, 904-434-0136, 904-379-9848 and 904-607-0716;

3. Defendant disclosed Plaintiffs alleged debt to a third party, Robert Tucker;

4. Defendant constantly and continuously calls Plaintiff and hangs up the phone without leaving a message; and

5. Defendant failed to send Plaintiff a debt validation letter.2

However, based on Plaintiffs own deposition testimony, only the third allegation could possibly be accurate. First, Plaintiff testified that she could not positively identify the owner of any of the four telephone numbers listed above. (Elissa Rhinehart Depo. at 41-42). Second, she testified that she did not know whether she received any calls from Defendant (Elissa Rhinehart Depo. at 20). Third, Mr. Rhinehart, Plaintiffs husband, testified that the requisite debt validation letter was received. (Robert Rhinehart Depo. at 12). Thus, the only potential claim here involves the allegation that Defendant illegally disclosed Stacey Tucker's debt to a third party, her father, Robert Tucker.

As to this claim, as noted in this Court's Tucker summary judgment Order, Stacey Tucker lived with Robert Tucker for about 12 months at some point, probably in the last two to three years. Defendant CBE ran a Lexis Nexis Accurint for Collections search (Accurint) to locate a current telephone number for Stacey Tucker and the search produced the same telephone number as that used by Robert Tucker. Therefore, CBE attempted to contact Ms. Tucker at that number.3

Based on these facts, the Court finds that the bona fide error defense is available; CBE's error in calling Mr. Tucker was unintentional and occurred despite procedures reasonably adapted to avoid a FDCPA violation. Indeed, the Court notes that a creditor's procedures need not be foolproof. 15 U.S.C. § 1692k(c); see also Kort v. Diversified Collection Services, Inc., 394 F.3d 530, 538-39 (7th Cir. 2005) (FDCPA does not require debt collectors to take every conceivable precaution to avoid errors, but only requires reasonable procedures).

Because any alleged violation of the FDCPA was unintentional and Defendant has demonstrated that it has reasonable procedures in place to prevent debt disclosures to third parties, Defendant CBE is entitled to summary judgment in the instant case.4

In addition, the Court finds that Defendant's sanction request is well founded.5 Not only were the majority of the Complaint's claims utterly unsupported, Plaintiffs own deposition testimony contradicted most of the allegations contained in the Complaint. As in Tucker, it appears that Plaintiff's attorney simply produced a boilerplate complaint and Plaintiff verified a complaint which contained spurious claims and erroneous assertions of fact.

Here, the Plaintiff's complaint also includes the unsubstantiated allegation that Defendant called four specific telephone numbers even though Plaintiff could not verify that either she or a family member owned any of the numbers.

And as in Tucker, Plaintiff's counsel failed to dismiss any of the claims when it became clear during discovery that they had no factual basis whatsoever, forcing Defendant to file a summary judgment motion. As stated by the Eleventh Circuit, "[w]hen it becomes apparent that discoverable evidence will not bear out the claim, the litigant and his attorney have a duty to discontinue their quest." Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991).

Here, as in Tucker, the Court finds that Plaintiff and her attorney multiplied the proceedings in this case unreasonably and vexatiously and exhibited a deliberate indifference to obvious facts.

Accordingly, the Court finds that Defendant is entitled to recover attorneys fees from Plaintiff and her attorney for work done on all of the claims in this case with the exception of the claim under Section 1692b(2) and 1692c(b).

If Defendant is not able to break down its fees in this way, it will be entitled to recover five-sevenths of the reasonable fees incurred to defend this case; five of the seven alleged violations of the FDCPA were wholly without merit.

Lastly, Plaintiff is admonished that it expects her to accurately verify any future complaints. Plaintiff's counsel is admonished that it expects that allegations in future complaints will be properly vetted prior to the complaint's filing. Accordingly, it is ORDERED:

Defendant's Motion for Summary Judgment (Dkt. 18) is GRANTED; the clerk is directed to enter judgment in favor of Defendant and against Plaintiff. Defendant may file a properly supported motion for reasonable fees, to be paid by Plaintiff and her counsel, in the next thirty days.

DONE AND ORDERED in Chambers this 26 day of May, 2010.