Brown v. Credit Mgmt., LP, Civil Action No. 1:14–CV–2274–TWT.

• Decision Date: 15 September 2015
• Docket Number: Civil Action No. 1:14–CV–2274–TWT.
• Citation: 131 F.Supp.3d 1332
• Parties: Heather BROWN, et al., Plaintiffs, v. CREDIT MANAGEMENT, LP, Defendant.
• Court: U.S. District Court — Northern District of Georgia

131 F.Supp.3d 1332

Heather BROWN, et al., Plaintiffs,

v.CREDIT MANAGEMENT, LP, Defendant.

Civil Action No. 1:14–CV–2274–TWT.

United States District Court, N.D. Georgia, Atlanta Division.

Signed Sept. 15, 2015.

Filed Sept. 16, 2015.

Charles Moses Clapp, Hyslip & Taylor, LLC, LPA, Atlanta, GA, David Michael Menditto, Mark Thomas Lavery, Hyslip & Taylor, LLC, LPA, Chicago, IL, for Plaintiffs.

John H. Bedard, Jr., Michael K. Chapman, Bedard Law Group, P.C., Duluth, GA, for Defendant.

ORDER

THOMAS W. THRASH, JR.

, District Judge.

This is an action under the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. It is before the Court on the Report and Recommendation [Doc. 63] of the Magistrate Judge recommending that the Defendant's Motion for Summary Judgment [Doc. 39] be GRANTED in part and DENIED in part, and that the Plaintiff's Motion for Summary Judgment [Doc. 44] be DENIED. The Defendant's objections are overruled for the reasons set forth in the thorough and well-reasoned Report and Recommendation. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendant's Motion for Summary Judgment [Doc. 39] is GRANTED in part and DENIED in part. The Plaintiff's Motion for Summary Judgment [Doc. 44] is DENIED.

UNITED STATES MAGISTRATE JUDGE'S NON–FINAL REPORT AND RECOMMENDATION

ALAN J. BAVERMAN

, United States Magistrate Judge.

In this action, Plaintiff Heather Brown raises claims against Defendant Credit Management, LP, for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.,

and Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. [Doc. 37 (2d Am. Compl.) ]. The matter is presently before the Court on Defendant's and Plaintiff's cross-motions for summary judgment, [Doc. 39 (Def.'s Mot. Summ. J.); Doc. 44 (Pl.'s Mot. Summ. J.) ]. For the reasons herein, the undersigned RECOMMENDS to the District Judge that Defendant's motion for summary judgment, [Doc. 39], be GRANTED IN PART and DENIED IN PART, and that Plaintiff's motion for summary judgment, [Doc. 44], be DENIED.

I. Background¹

On or about March 24, 2014, Plaintiff opened an account with Comcast for cable services. (PSUMF ¶ 3).² She lived with her parents, receiving some income in exchange for caring for her father, but she opened the account in her own name. (PSUMF ¶¶ 1, 2, 4). At the time she opened the Comcast account, Plaintiff provided Comcast with her cellular telephone number ending with –7539. (PSUMF ¶ 5).

Plaintiff ultimately defaulted on the account, and on May 28, 2014, Comcast placed the account with Defendant Credit Management, LP, for collection. (PSUMF ¶ 14; DSUMF ¶¶ 5, 6). Defendant's primary business is the collection of past due debts. (PSUMF ¶ 15). When Comcast provided the account to Defendant for collection, it also provided Defendant with Plaintiff's cellular telephone number. (DSUMF ¶ 7).

In furtherance of its attempts to collect the unpaid Comcast account from Plaintiff, Defendant placed four telephone calls to her cellular telephone number. (DSUMF ¶¶ 8, 9). Defendant placed all four of the telephone calls on May 30, 2014. (DSUMF ¶ 9). Plaintiff also placed three calls to Defendant on that date. (DSUMF ¶ 12).

Defendant first called Plaintiff on her cellular telephone at or around 8:33 that morning. (PSUMF ¶ 48). Plaintiff missed the call, and Defendant did not leave a message. (PSUMF ¶ 49; DSUMF ¶ 10).

A few minutes later, Plaintiff called Defendant back. (PSUMF ¶ 50). After she identified herself to a verification agent, she was transferred to a collection agent. (PSUMF ¶ 50). Defendant disclosed that the purpose of the call was to collect a debt. (PSUMF ¶ 51). Defendant noted in its account records that Plaintiff then hung up on the agent. (Deposition of Nelson Wilson ("Wilson Dep."), Exh. 9 [Doc. 55–11 at 11] ).³

Later that same day, at or around 12:43 p.m., Defendant placed another outbound call to Plaintiff on her cellular telephone. (PSUMF ¶ 57). Plaintiff answered the call. (PSUMF ¶ 57). Defendant's representative identified herself by name and indicated that she was calling on a recorded line. (PSUMF ¶ 58). Defendant again noted in its account records that Plaintiff hung up on the agent. (Wilson Dep., Exh. 9 [Doc. 55–11 at 11] ).

Later that same day, at or around 4:19 p.m., Defendant placed another outbound call to Plaintiff on her cellular telephone. (PSUMF ¶ 64). Plaintiff missed the call, and Defendant did not leave a message. (PSUMF ¶ 65; DSUMF ¶ 10).

Within minutes after the missed call, Plaintiff called Defendant back. (PSUMF ¶ 66). She identified herself to a verification agent and was transferred to a collection agent. (PSUMF ¶ 67). In response to the collection agent's request for payment, Plaintiff stated, "Um, right now, I am unemployed, and I do not have a job to pay anything, and my husband just got locked up, and will not be out for several months." (Deposition of Heather Brown ("Pl. Dep.") at 41). She also told the agent that she had "no income whatsoever," that she did not have anyone to pay her bills, that her bills would "get paid when [she got] money to pay them," and that she could not set up a payment arrangement because she had "other things [she had] to deal with before [she could] made any arrangements, period." (Id. at 41–42). Plaintiff further stated to the agent, "I feel like, just today, I've received, like, ten phone calls, and told everybody the same thing. So I feel like I'm being harassed," and she said that she would call back when she had money and was able to pay. (Id. at 44). The call then ended. (PSUMF ¶ 70).

Later that same day, at or around 6:25 p.m., Defendant placed another outbound call to Plaintiff on her cellular telephone. (PSUMF ¶ 76). Plaintiff missed the call, and Defendant did not leave a message. (PSUMF ¶ 77; DSUMF ¶ 10).

Shortly thereafter, around 6:45 p.m., Plaintiff called Defendant back. (PSUMF ¶ 78). During the call, Plaintiff identified herself to the verification agent and was transferred to a collection agent. (PSUMF ¶ 79). Upon being transferred to the collection agent, Plaintiff voluntarily handed the phone to her father ("Father") so that he could speak to Defendant on her behalf. (PSUMF ¶ 80). Father identified himself to Defendant as "Heather Brown's father." (PSUMF ¶ 80). He told the agent that Plaintiff had told Defendant earlier that day that she was unemployed and that her husband recently went to jail. Father stated that no matter how many times Defendant called, Plaintiff would not be able to make payment and that they were harassing her and needed to stop calling. (Pl. Dep. 53–55). The collection agent told Father that she could not take the order to stop calling from him, and then the call ended. (Pl. Dep. at 55). No further calls were placed to Plaintiff. (PSUMF ¶ 86).

In the complaint presently before the Court, Plaintiff asserts four counts against Defendant: three counts under the FDCPA and one count under the TCPA. [Doc. 37 at 7–9]. In Count One, Plaintiff claims that Defendant violated the portion of the FDCPA codified at 15 U.S.C. § 1692c(a)(1)

by calling her at times known to be inconvenient to her, [id. ¶¶ 67–70]; in Count Two, Plaintiff claims that Defendant violated the portion of the FDCPA codified at 15 U.S.C. § 1692d by engaging in conduct the natural consequence of which was to harass, oppress, or abuse her in connection with the collection of a debt, [id. ¶¶ 71–75]; in Count Three, Plaintiff claims that Defendant violated the portion of the FDCPA codified at 15 U.S.C. § 1692f by using unfair or unconscionable means to collect the debt, [id. ¶¶ 76–85]; and in Count Four, Plaintiff claims that Defendant violated the portion of the TCPA codified at 47 U.S.C. § 227(b)(1)(A) by calling her cellular telephone using an automatic telephone dialing system—namely, a predictive dialer—without express consent for non-emergency purposes, [id. ¶¶ 12–15, 86–90]. She seeks actual damages, statutory damages, costs, and attorneys' fees under 15 U.S.C. § 1692k ; a permanent injunction prohibiting Defendant from placing further telephone calls to her cellular telephone number pursuant to 47 U.S.C. § 227(b)(3) ; and statutory damages pursuant to 47 U.S.C. § 227(b)(3). [Id. at 10].

Following the close of discovery, on February 20, 2015, Defendant filed a Motion for Summary Judgment seeking judgment in its favor on all of Plaintiff's claims, [Doc. 39], and on February 23, 2015, Plaintiff filed a Motion for Summary Judgment seeking judgment in her favor on all of her claims, [Docs. 44, 59]. The parties both filed response briefs, [Docs. 56, 60], and reply briefs, [Doc. 61, 62]. With briefing concluded, the Court now considers the merits of the motions.

II. Summary Judgment Standard

Summary judgment is proper when no genuine issue as to any material fact is present, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a)

. The moving party carries the initial burden of "informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact." Rice–Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir.2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party may also meet its burden by pointing out that there is an absence of evidence to support an element of the case on which the nonmoving party bears the burden of proof.

Celotex, 477 U.S. at 325, 106 S.Ct. 2548

. "Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

The nonmoving party is then...