Bacelli v. MFP, Inc.

• Decision Date: 28 July 2010
• Docket Number: Case No. 8:09-cv-1396-T-27EAJ
• Citation: 729 F.Supp.2d 1328
• Parties: Joann BACELLI, Plaintiff, v. MFP, INC. and St. Joseph's Hospital, Inc., Defendants.
• Court: U.S. District Court — Middle District of Florida

729 F.Supp.2d 1328

Joann BACELLI, Plaintiff,

v.MFP, INC. and St. Joseph's Hospital, Inc., Defendants.

Case No. 8:09-cv-1396-T-27EAJ.

United States District Court,

M.D. Florida,

Tampa Division.

July 28, 2010.

Timothy Condon, Vollrath-Condon, PA, Tampa, FL, for Plaintiff.

Ernest H. Kohlmyer, III, South Milhausen, PA, Orlando, FL, John Travis Godwin, Kirk Stuart Davis, Akerman Senterfitt, Tampa, FL, for Defendants.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT are the Magistrate Judge's Report and Recommendation (Dkt. 45) and the parties' cross-motions for summary judgment (Dkts. 14, 40, 41). Plaintiff alleges that Defendants violated the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., and the Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. §§ 559.55 et seq. , by demanding immediate payment on a debt while she was in bankruptcy, after the debt's discharge, and while she was represented by an attorney with respect to the debt. As set forth below, the Magistrate Judge's Report and Recommendation is approved and adopted. Plaintiff's Motion for Partial Summary Judgment as to Liability Only and Defendant St. Joseph's Hospital, Inc.'s Motion for Summary Judgment are DENIED. Defendant MFP, Inc.'s Motion for Summary Judgment is GRANTED in part.

Background

The facts are largely undisputed. On August 29, 2008, Plaintiff through her attorney filed a voluntary petition under Chapter 7 of the Bankruptcy Code in the Middle District of Florida, Case No. 8:08-bk-13272-CPM. Pretrial Statement, Dkt. 59, ¶ H.4. Plaintiff listed on her Schedule F a debt of $459.15 owed to Defendant St. Joseph's Hospital, Inc. ("St. Joseph's"). (Dkt. 14-3 at 3 ¹). The bankruptcy file shows that a notice of Plaintiff's bankruptcy filing was mailed to St. Joseph's at its processing center in Atlanta, Georgia, on September 3, 2008. Dkt. 59, ¶ H.11. On December 12, 2008, Plaintiff was granted a discharge by the bankruptcy court. Id. ¶ H.12. The bankruptcy file shows that anotice of Plaintiff's discharge was mailed to St. Joseph's on December 14, 2008. (Dkt. 14-5).

On November 17, 2008. St. Joseph's forwarded Plaintiff's account to Defendant MFP, Inc., d/b/a Financial Credit Services ("MFP"), for collection.² St. Joseph's did not inform MFP that Plaintiff had filed for bankruptcy. Nasso Aff. ¶¶ 5, 9. MFP is not listed as a creditor or other party on Plaintiff's bankruptcy mailing matrix. Dkt. 59, ¶ H.9. Prior to June 26, 2009, MFP had no actual notice from the bankruptcy court, from Plaintiff, or from St. Joseph's that Plaintiff had filed for bankruptcy or was represented by an attorney with respect to the debt. Id. ¶ H.8.

About November 18, 2008, MFP mailed and Plaintiff received MFP's initial collection letter (the "post-petition MFP collection letter" [Dkt. 5-2] ). Id. ¶ H.5. About December 18, 2008 and February 18, 2009, respectively, MFP mailed and Plaintiff received MFP's second and third collection letters (together, the "post-discharge MFP collection letters" [Dkts. 5-3, 5-4] ). Id. ¶¶ 6-7. On June 30, 2009, MFP was informed that Plaintiff had filed bankruptcy and was represented by counsel. Nasso Aff. ¶ 15. At that time, the MFP account notes were updated and the account was closed and returned to St. Joseph's. Id.

About September 11, 2008 and October 8, 2008, respectively, St. Joseph's mailed to Plaintiff and Plaintiff received bills (together, the "post-petition hospital bills" [Dkts. 5-5, 5-6] ) for the debt at issue. Dkt. 59, ¶ 9. ¶¶ H.13-14.

Standard

Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56. "An issue of fact is 'material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). "An issue of fact is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir.2004).

Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. Plaintiff's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Court will not weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir.2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the nonmoving party. Id.

Discussion

The FDCPA provides a civil cause of action against any debt collector who failsto comply with its requirements. Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352 (11th Cir.2009) (citing 15 U.S.C. § 1692k(a)).³ The FDCPA prohibits debt collectors from using any false representation as to the "legal status of any debt." 15 U.S.C. § 1692e(2)(A). "A demand for immediate payment while a debtor is in bankruptcy (or after the debt's discharge) is 'false' in the sense that it asserts that money is due, although, because of the automatic stay ( 11 U.S.C. § 362) or the discharge injunction ( 11 U.S.C. § 524), it is not." Randolph v. IMBS, Inc., 368 F.3d 726, 728 (7th Cir.2004) (dicta); see also Ross v. RJM Acquisitions Funding LLC, 480 F.3d 493, 495 (7th Cir.2007) ("Dunning people for their discharged debts" is prohibited by 15 U.S.C. § 1692e(2)(A)); cf. Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 995 (7th Cir.2003) ( " Turner I ") (reversing summary judgment in favor of debt collector on claim under 15 U.S.C. § 1692e(2)(A) in part because a reasonable jury could conclude debt collector's collection letter implied that the discharged debt was still payable).⁴ The FDCPA also prohibits debt collectors from using "unfair or unconscionable" debt collection methods, 15 U.S.C. § 1692f, ⁵ and (with exceptions not relevant here) from communicating with a consumer in connection with the collection of a consumer debt "if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address ...." 15 U.S.C. § 1692c(a)(2).

"The FDCPA does not ordinarily require proof of intentional violation and, as a result, is described by some as a strict liability statute." LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir.2010). However, characterization of the FDCPA as a strict liability statute is not entirely accurate, in part because the FDCPA provides debt collectors with an affirmative defense (the "bona fide error" defense) that "insulates them from liability even when they have failed to comply with the Act's requirements." Edwards, 584 F.3d at 1352 (citing Johnson v. Riddle, 443 F.3d 723, 727 (10th Cir.2006)). Pursuant to the bona fide error defense, a debt collector cannot be held liable for any violation of the statute

if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

15 U.S.C. § 1692k(c).

A debt collector asserting the bona fide error defense must show by a preponderance of the evidence that its violation of the FDCPA "(1) was not intentional; (2) was a bona fide error; and (3) occurreddespite the maintenance of procedures reasonably adapted to avoid any such error." Edwards, 584 F.3d at 1352-53 (citing Johnson, 443 F.3d at 727-28).⁶ Section 1692k(c) "does not require debt collectors to take every conceivable precaution to avoid errors; rather, it only requires reasonable precaution." Kort v. Diversified Collection Servs., Inc., 394 F.3d 530, 539 (7th Cir.2005). However, the required procedures must be reasonably adapted to avoid the specific error at issue. Johnson, 443 F.3d at 729. Moreover, "the procedures ... must be explained, along with the manner in which they were adapted to avoid the error." Reichert v. Nat'l Credit Sys., Inc., 531 F.3d 1002, 1007 (9th Cir.2008). A conclusory declaration that the debt collector maintained procedures to avoid error is insufficient. Id.

The FCCPA provides that a debtor may bring a civil action against any person who violates its provisions. Fla. Stat. § 559.77.⁷ The FCCPA prohibits any person, in collecting consumer debts, from "claim[ing], attempt [ing], or threaten[ing] to enforce a debt when such person knows that the debt is not legitimate or assert[ing] the existence of some other legal right when such person knows that the right does not exist." Fla. Stat. § 559.72(9) (emphasis added). As the emphasis indicates, this provision "requires actual knowledge of the impropriety or overreach of a claim." In re Cooper, 253 B.R. 286, 290 (Bankr.N.D.Fla.2000) (citing Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1363 (S.D.Fla.2000)). Additionally, like the FDCPA, see 15 U.S.C. § 1692c(a)(2), the FCCPA generally prohibits persons from communicating with a debtor "if the person knows that the debtor is represented by an...