JOHN W. LUNGSTRUM, District Judge.
Plaintiff Holly Cokeley asserts claims against defendant Midland Credit Management, Inc. under the Fair Debt Collection Practices Act ("FDCPA" or "the Act"), 15 U.S.C. §§ 1692 et seq. This matter comes before the Court on defendant's motion for summary judgment (Doc. # 23). For the reasons set forth below, the Court
On August 28, 2013, defendant purchased an account on which plaintiff had defaulted. On September 7, 2013, a representative of defendant telephoned and spoke to plaintiff about the account. The call was recorded by defendant, and the transcript of the entire call reads as follows ("P" refers to plaintiff; "D" refers to defendant's representative):
Defendant then sent plaintiff written correspondence, titled "NOTICE OF NEW OWNERSHIP AND PRE-LEGAL REVIEW," dated September 8, 2013. The notice stated that plaintiff's account had been sold and that defendant would be collecting on that account, and it included a payment due date of October 23, 2013. The notice included the following statements:
The notice also listed, among the "Benefits of Paying," the following: "This may be your last chance to work with us before the account goes to an attorney."
On September 27, 2013, a representative for defendant telephoned plaintiff, but the call was not answered, and the representative did not leave a message. Later that day, plaintiff telephoned defendant and spoke with a representative, as follows:
The parties did not have any other contact before plaintiff filed the instant suit on October 8, 2013.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue of fact is "genuine" if "the evidence allows a reasonable jury to resolve the issue either way." Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006). A fact is "material" when "it is essential to the proper disposition of the claim." Id.
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. (citing Celotex, 477 U.S. at 325).
If the movant carries this initial burden, the nonmovant may not simply rest upon the pleadings but must "bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof." Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence pertinent to the material issue "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir. 2002).
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
Plaintiff asserts a claim for a violation of Section 1692d of the FDCPA. That section provides in relevant part as follows:
15 U.S.C. § 1692d(5). Although plaintiff has not identified a particular paragraph of Section 1692d that underlies her claim, Paragraph (5) is the only one that could be relevant here. Moreover, in the pretrial order, plaintiff states her legal claim as follows: "Defendant's continued calls after Plaintiff advised she wasn't going to pay the account show an intent to harass and violate 15 U.S.C. § 1692d." (Emphasis added.) Plaintiff's reference to an intent to harass in stating her claim clearly refers to Paragraph (5). Moreover, in her brief, plaintiff argues that calls after a consumer states that she cannot pay demonstrate an intent to annoy or harass, which argument clearly implicates Paragraph (5), and the case that plaintiff cites in support of that argument involved that specific paragraph. See Prewitt v. Wolpoff & Abramson, LLP, 2007 WL 841778 (W.D.N.Y. Mar. 19, 2007). Accordingly, the Court will analyze plaintiff's claim under Section 1692d(5).
The Court first concludes that defendant cannot have violated Section 1692d(5) because it did not call plaintiff "repeatedly or continuously." Defendant called plaintiff for the first time on September 7, 2013, and it called again on September 27, 2013, when no one answered and no message was left. In considering claims under this statutory provision, various courts have applied the FTC's definition of "repeatedly" to mean "calling with excessive frequency under the circumstances," and "continuously" to mean "making a series of telephone calls right after the other." See, e.g., Druschel v. CCB Credit Servs., Inc., 2011 WL 2681637, at *5 n.10 (M.D. Fla. June 14, 2011) (quoting FTC Staff Comm. on FDCPA, 53 Fed. Reg. 50097-02, at 50105 (Dec. 13, 1988)). The Court agrees that such definitions are appropriate and in accord with the generally-understood meaning of those terms as used in this context. Applying those definitions, the Court concludes as a matter of law that making two calls 20 days apart does not constitute calling repeatedly or continuously. Plaintiff has not cited any authority to suggest that making two calls could satisfy that requirement of the statute, and the Court is not aware of any such authority. Cf., e.g., Shuler v. Ingram & Assocs., 441 F. App'x 712, 718 (11th Cir. 2011) (unpub. op.) (affirming summary judgment in favor of defendant; making five calls, including one successful contact lasting less than five minutes and two voicemail messages left, did not constitute repeated or continuous attempts to harass under Section 1692d(5)); Sutton v. New Century Fin. Servs., 2006 WL 2038500, at *2 (D.N.J. July 19, 2006) (denying leave to amend as futile; two calls over a two-month period did not show that the defendant made repeated or continuous calls with the intent to harass).
In her brief, plaintiff has not attempted to explain how two calls could be considered "repeated" or "continuous" under the statute. Rather, plaintiff argues that a factual dispute arises concerning the number of calls placed by defendant to plaintiff. The Court rejects this argument. Defendant submitted a declaration stating that it called plaintiff only twice. Plaintiff has controverted that evidence only by stating that certain log entries in a report attached to defendant's declaration are "indecipherable" with respect to conduct occurring at five different times within a 12-minute period on September 27, 2013, and at one time on October 1, 2013. Those disputed entries, however, do not contain language suggesting that additional calls were made to plaintiff at those times, and plaintiff has not submitted any evidence of her own to contradict the sworn statement by defendant's representative that defendant called plaintiff only on two occasions. Therefore, the Court must accept as an uncontroverted fact that defendant called plaintiff only two times.
The Court also concludes that summary judgment is appropriate on this claim because there is no evidence that defendant acted with an intent to annoy, abuse, or harass plaintiff.
See Hendricks v. CBE Group, Inc., 891 F.Supp.2d 982, 896 (N.D. Ill. 2012) (citations omitted) (citing cases); see also, e.g., Higgs v. Diversified Consultants, Inc., 2014 WL 1374055, at *3 (W.D. Mo. Apr. 8, 2014) (citing Hendricks). As noted above, defendant made only two calls to plaintiff, 20 days apart. Thus, no intent to harass may be inferred here from the volume and pattern of calls. Indeed, courts in this district have recognized that even "[a] high volume of calls, even daily calls, unaccompanied by other egregious conduct is insufficient to raise a triable issue of fact for the jury." See Webb v. Premiere Credit of N. Am., LLC, 2012 WL 5199754, at *3 (D. Kan. Oct. 22, 2012) (Robinson, J.) (citing Carman v. CBE Group, Inc., 782 F.Supp.2d 1223, 1229-31 (D. Kan. 2011) (Robinson, J.)); see also Little v. Portfolio Recovery Assocs., LLC, 2014 WL 1400660, at *2 (D. Kan. Apr. 20, 2014) (Marten, J.) (noting that Webb is consistent with other decisions interpreting Section 1692d); Lynch v. Nelson Watson & Assocs., LLC, 2011 WL 2472588, *2 (D. Kan. June 21, 2011) (Melgren, J.) (citing Carman).
Moreover, the undisputed evidence concerning the two telephone contacts between the parties reveals that plaintiff did not ask defendant to stop calling her. Plaintiff argues that intent to harass should be inferred from the fact that defendant called her again after she stated in the first call that she did not have the money to pay the debt. Such conduct falls far short, however, of the sort of egregious conduct that could create a reasonable inference of an intent to harass. Plaintiff did not tell defendant not to call her, and defendant quite reasonably could have chosen to call her weeks later to see whether her financial situation had changed. Plaintiff has not cited any authority to suggest that a single call following a declaration of an inability to pay could create an reasonable inference of an intent to harass. Plaintiff cites Prewitt v. Wolpoff & Abramson, LLP, 2007 WL 841778 (W.D.N.Y. Mar. 19, 2007), in which the court denied summary judgment on a claim under Section 1692d(5), in part based on evidence that the plaintiff had indicated that he could not pay. See id. at *3. In that case, however, the court specifically noted that the frequency of calls after that statement could demonstrate to a jury an intent to harass. See id. In this case, there was only one call after plaintiff stated that she could not pay; thus, Prewitt does not provide support for plaintiff's claim here.
For these reasons, the Court concludes that no reasonable jury could infer, from this evidence, viewed in the light most favorable to plaintiff, that defendant acted with an intent to harass plaintiff.
Plaintiff also asserts a claim under Section 1692e(10) of the FDCPA, which provides as follows:
15 U.S.C. § 1692e(10).
Ferree, 1997 WL 687693, at *1 (citations and internal quotations omitted). This Court has previously applied this standard, see Jeter v. Alliance One Receivables Mgmt., Inc., 2010 WL 2025213, at *2 & n.1 (D. Kan. May 20, 2010) (Lungstrum, J.) (citing, inter alia, Ferree), and it will do so again in this case.
In support of her claim that defendant made false or misleading statements to her, plaintiff cites various statements from defendant's written notice and the two telephone conversations. From the written notice, plaintiff cites the reference to "pre-legal review" and the statement that defendant "is considering forwarding this account to an attorney in your state for possible litigation." From the first telephone conversation, plaintiff cites the statements by defendant's representative that he was calling "in regards to a potential lawsuit which [plaintiff] might have to face soon;" that plaintiff's account was "in prelegal status;" and that he was calling to help plaintiff "avoid a possible lawsuit on the account." From the second telephone conversation, plaintiff cites the statements by defendant's representative that the account was in "prelegal status;" that defendant was "looking at possible litigation" to resolve the account; and that if she did not pay the amount due, "recommendation for attorney placement would be applied to the account."
Plaintiff argues that her claim that such statements were deceptive or misleading is supported by evidence that no such review was taking place and that no particular person at defendant's company was considering or looking at whether to involve attorneys or to file suit against plaintiff. Plaintiff also cites to evidence that defendant never sued plaintiff on the account or even referred the matter to an attorney for possible litigation.
The Court concludes as a matter of law that plaintiff has not submitted evidence that any of defendant's statements to her were misleading or deceptive. First, defendant did not represent to plaintiff that it would sue her if she did not pay, or even that it would definitely refer her case to an attorney. It merely stated that it was considering forwarding her account to an attorney for possible litigation (written notice); that it may proceed with forwarding the account to an attorney (written notice); that plaintiff might have to face a potential lawsuit (first call); that plaintiff should try to avoid a possible lawsuit (first call); that litigation was possible (second call); that defendant could recommend attorney placement (second call); and that when the recommendation is made, the account would possibly be placed with an attorney (second call). Thus, defendant consistently told plaintiff that placement with an attorney and ultimate litigation were possibilities if she did not pay the debt by the deadline it gave her. It is true that in the second call, defendant's representative stated that if she did not pay, "then at that time the documentation and recommendation for attorney placement would be applied to the account." The speaker made clear following that statement, however, that the account would "be possibly placed with an attorney," and that such decision had not yet been made.
Such statements about the possibility of attorney referral and litigation would be deceptive or misleading, then, only if such referral or litigation was not in fact a possibility—that is, if defendant knew at that time that it would not refer the account to an attorney or sue plaintiff on the debt. Plaintiff has not submitted evidence of any such knowledge or lack of intent by defendant. Plaintiff argues that defendant was not in fact reviewing plaintiff's account or considering litigation against her. Plaintiff cites to the Rule 30(b)(6) deposition of defendant. The deponent, however, did not testify that defendant was not considering litigation against plaintiff; rather, he testified that he could not identify by name any particular person at the company who was engaged in a review of plaintiff's account or was actually considering the question of litigation at the time of the statements.
The use of the word "prelegal" by defendant was accurate, as no legal proceedings or legal referral had yet been initiated. That word may imply that legal proceedings are a possibility, but again, plaintiff has not submitted evidence that such proceedings were not, in fact, a possibility. The use of the words "review" and "considering" and "looking at," in the plain and ordinary sense, did not mean necessarily that an employee of defendant was at that time conducting a review and trying to decide what to do with plaintiff's account; indeed, it should have been apparent even to the least sophisticated consumer that such a decision was not to be made until the deadline had passed without payment by the consumer. That is even more true with respect to defendant's initial call and official written notice to the debtor, as that person could hardly be misled, under an objective standard, that the collection company was already engaging in an analysis about attorney referral without first waiting to see whether initial collection efforts bore fruit.
The Court also concludes that the fact that defendant never referred the case to an attorney or sued plaintiff does not create any reasonable inference that defendant never intended to do such things when it made the statements to plaintiff. Defendant gave plaintiff an explicit deadline of October 23, 2013, for payment of the debt, after which time litigation would become a possibility. Plaintiff, however, initiated the present lawsuit on October 8, 2013, prior to that deadline. Defendant submitted evidence that, as a matter of policy, it ceases all collection activity if a consumer files a lawsuit against it.
Similarly, there is no basis to find defendant's use of the word "soon" in reference to possible future litigation to be misleading or deceptive. Defendant did not state in that first call that litigation would commence immediately, but instead referred only to the possibility of litigation in the future. Defendant followed up with its written notice the next day, in which it gave plaintiff the deadline for paying, after which time, litigation might ensue. The fact that defendant did not sue before its deadline had expired does not suggest that it falsely stated that litigation could "soon" become possible.
Plaintiff argues at one place in her brief that the case should not be reduced to an analysis of particular snippets of the written notice and calls, but that the notice and calls should be considered in their entirety. The Court agrees, and such consideration reinforces the lack of evidence that defendant violated this provision of the FDCPA. The whole of the notice and the whole of each call make clear that litigation and attorney referral are mentioned only as possibilities if plaintiff did not pay. Especially in the second call, defendant's representative painstakingly made clear that he could not say that a lawsuit was a certainty, but that the company would decide whether to refer the case for possible litigation after the deadline if plaintiff had not paid by then.
Plaintiff cites only the case of Brown v. Card Service Center, 464 F.3d 450 (3d Cir. 2006), as authority in support of her argument, but that court's holding actually weighs in favor of summary judgment in this case. In Brown, the court held that the district court had erred in granting a motion to dismiss a claim under Section 1692e. See id. at 454-56. The district court had relied on the fact that the letter to the plaintiff had stated merely that the defendant could take action (conditionally, not affirmatively), but the Third Circuit concluded that such a statement could still be deceptive if the defendant in fact had no intention of taking such action. See id. The court noted that the plaintiff had alleged such a lack of intent in that case. See id. at 455. In the present case, plaintiff argues that she should also be permitted to pursue a claim based on a statement that litigation could ensue.
The outcome is different in this case, however, because of the different stage of the litigation here. In Brown, the claim had been dismissed on the pleadings, and the court concluded that a claim could be proved with evidence that the defendant never intended to take action against the plaintiff. See id. The court noted specifically that a jury could conclude that the notice was deceptive if the plaintiff could prove that the defendant "seldom litigated or referred debts such as [the plaintiff's] . . . to an attorney." See id. The present case, on the other hand, involves a motion for summary judgment, and thus the time has arrived for plaintiff to identify evidence to support her claim. Here, plaintiff has submitted no evidence to suggest that defendant seldom litigated or referred such debts to attorneys. To the contrary, defendant has submitted its own evidence that it has engaged attorneys in Kansas to review debtors' accounts and to initiate suit in some cases. Nor has plaintiff submitted any other evidence to create a reasonable inference that, at the time defendant stated to plaintiff that referral and litigation were possibilities, in fact it had no such intent to take action against plaintiff. In the absence of such evidence, plaintiff cannot maintain her claim at this stage of the litigation.
For these reasons, the Court grants the motion, and defendant is awarded summary judgment on plaintiff's claim under Section 1692e of the FDCPA.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion for summary judgment (Doc. # 23) is hereby granted, and defendant is awarded summary judgment on plaintiff's claims in this case.
IT IS SO ORDERED.