Dorsey v. Morgan, Civ. A. No. R-90-1226.

Decision Date24 January 1991
Docket NumberCiv. A. No. R-90-1226.
Citation760 F. Supp. 509
PartiesJames E. DORSEY, Plaintiff, v. Bruce L. MORGAN, Defendant.
CourtU.S. District Court — District of Maryland

Mary Elizabeth Peitersen, UAW-GM Legal Services Plan, Baltimore, Md., for plaintiff.

Jacqueline S. Russell, Niles, Barton & Wilmer, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

RAMSEY, District Judge.

Pending before the Court in the abovecaptioned case are defendant's ("Morgan") motion for summary judgment on count III of the complaint and plaintiff's ("Dorsey") motion for summary judgment as to liability only on counts I and II of the complaint. Pursuant to Local Rule 105, subd. 6 (D.Md. 1989), the Court is now prepared to rule without need for a hearing. For the reasons set forth below, plaintiff's motion will be denied and defendant's motion will be granted.

Standards for Summary Judgment

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure serves the important purpose of "conserving judicial time and energy by avoiding unnecessary trial and by providing a speedy and efficient summary disposition" of litigation in which the plaintiff fails to make some minimal showing that the defendant may be liable on the claims alleged. Bland v. Norfolk & Southern R.R. Co., 406 F.2d 863, 866 (4th Cir.1969). The applicable standards for analyzing a motion for summary judgment under Rule 56 are well-established. The defendant1 seeking summary judgment bears the burden of showing the absence of any genuine issue of material fact and that he is entitled to judgment as a matter of law. In determining whether the defendant has sustained this burden, this Court must consider whether, when assessing the evidence in the light most favorable to the plaintiff, a "fair-minded jury could return a verdict for the plaintiff...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986); Pulliam Investment Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). That is, the "mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to defeat a motion for summary judgment. Id., see also Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984). It is against these standards that the Court shall review defendants' motion.

Factual Background

Defendant, Morgan, is an attorney admitted to practice in New York and Pennsylvania. Morgan is employed as in-house counsel for Outdoor World Corporation ("Outdoor World"). On April 18, 1989, plaintiff, Dorsey, and his fiancee, Sheila Love, entered into an agreement with Outdoor World for the purchase of a membership in one of Outdoor World's recreational campgrounds. The agreement provided that the membership was "being purchased primarily for personal, family, or household use." The total cost of the membership was $4,577.68. Under the terms of the agreement, Dorsey was required to make 42 monthly payments of $103.04 per month. Dorsey made a downpayment of $250.00 at the time of purchase and made one monthly payment in May, 1989.

On September 25, 1989, Morgan sent a letter to Dorsey demanding payment of amounts allegedly owing to Outdoor World. The letter was generated from a word processor in accordance with procedures whereby Morgan was requested to mail letters to persons overdue in their payments to Outdoor World. The letterhead of the letter contained the following information: 1) at the top center of the letter "BRUCE L. MORGAN" was printed in bold face type directly above "ATTORNEY AT LAW;" 2) on the right hand side of the letterhead was "MEMBER OF THE BARS OF PENNSYLVANIA AND NEW YORK;" and 3) on the left hand side of the letterhead was the address "RT. 209" above "BUSHKILL PA 18324." The address contained in the letterhead is the business address of Morgan.

The relevant text of the letter stated: Dear JAMES DORSEY,
I am the attorney for Outdoor World. I have been advised by my client of your delinquency under the terms of your Outdoor World contract. As you are aware, the contract provides that in the event of default, Outdoor World may immediately declare the entire balance of $3388.34 due and owing.
This letter constitutes a demand that unless arrangements are made with Outdoor World for payment of the delinquent amount of $427.16 due by 5:00 p.m. on October 05, 1989, they may request that I take appropriate legal action on behalf of Outdoor World to enforce your obligations to Outdoor World. If an action were to be commenced in court, we would ask the court to award attorney's fee and cost associated with the collection efforts. Such action will not be necessary if you make arrangement for payment by the date set forth above.
You should immediately contact ROBERTA HARTNAGEL at 1-800-222-1702, extension 2249, or make your check payable to Outdoor World, referencing your account number, and forward the check to this address:

Outdoor World P.O. Box 1144 Scranton, PA 18501 Sincerely Bruce L. Morgan Attorney at Law

Other than the September 25, 1989 letter, no other letters, notices, correspondence, or communications, written or oral, were conveyed by Morgan to Dorsey.

Analysis

Dorsey claims that Morgan has violated three sections of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (hereinafter "FDCPA") namely: FDCPA §§ 1692d, 1692e(11), and 1692g. Plaintiff has moved for summary judgment as to liability only with respect to his claims that Morgan violated FDCPA §§ 1692e(11) and 1692g. Defendant has moved for summary judgment on the issue of whether he violated FDCPA § 1692d.

I. The FDCPA

The FDCPA is a comprehensive statute designed to eliminate abusive debt collection practices by debt collectors. FDCPA § 1692(e). The statute governs both communications and debt collection practices utilized by debt collectors in the collection of debts from consumers. In addition to providing for actual damages that result from a debt collectors failure to comply with any provision of the statute, the FDCPA provides for statutory damages of up to $1000 per violation in addition to attorney fees and costs. Id. § 1692k.

As a preliminary matter the Court must determine whether 1) Dorsey is a "consumer"; 2) Dorsey's obligation to pay constitutes a "debt"; and 3) Morgan is a "debt collector" as those terms are defined by the statute. Under the statute "`consumer' means any natural person obligated or allegedly obligated to pay any debt." Id. § 1692a(3). Dorsey clearly is a natural person. "`Debt' means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the ... property ... or services which are the subject of the transaction are primarily for personal, family, or household purposes...." Id. § 1692a(5). The contract between Dorsey and Outdoor World provided that the membership was "being purchased primarily for personal, family, or household use." Accordingly, the money allegedly owed by Dorsey to Outdoor World upon which the communication from Morgan to Dorsey was based clearly constitutes a debt.

The Court now turns to the question of whether Morgan is a "debt collector" as that term is defined under the statute. Under the FDCPA a "debt collector" is defined 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 regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... The term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.... The term does not include — (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor.

Id. at § 1692a(6). As noted by both parties, the definition of "debt collector" thus includes: 1) persons in a business the principal purpose of which is the collection of debts; 2) persons who regularly collect or attempt to collect, directly or indirectly, debts owed or due to another; and 3) creditors, who in the process of collecting their own debts, use any names that would indicate that a third person is collecting or attempting to collect the debts.

The Court first turns to the issue of whether Morgan can be held liable as a creditor, who in the process of collecting his debts, uses a name indicating that a third person is attempting to collect the debts. Under the FDCPA "`creditor' means any person who offers or extends credit creating a debt or to whom a debt is owed...." Id. at § 1692a(4). The contract in this case that created the debt was entered into by Outdoor World and Dorsey. There has been no allegation anywhere in this case that Morgan extended credit to Dorsey. It is clear, therefore, that Outdoor World, as opposed to Morgan, is the creditor.

Both parties expended considerable effort in arguing whether or not Morgan was liable merely due to Outdoor World's alleged process of attempting to collect its debts in Morgan's name. This argument misses the point entirely. A creditor, i.e. Outdoor World, may be held liable if it, in the process of collecting its own debts, uses any names that would indicate that a third person is collecting or attempting to collect the debts. Because Morgan was not a creditor, he can not be held to be a "debt collector" merely because he allegedly attempted to collect Dorsey's debt to Outdoor World in his name.

Plaintiff also suggested that Morgan was a "debt collector" by virtue of the fact that he regularly attempted to collect debts owed or due to Outdoor World. For instance, plaintiff submits evidence that the letter sent to Dorsey was produced from a form that provided the basis for other letters sent to other debtors. This evidence, however, does not provide a sufficient basis for this Court to conclude as a matter...

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