Caputo v. Professional Recovery Services, Inc.

• Decision Date: 21 April 2003
• Docket Number: No. 00-4208-SAC.,00-4208-SAC.
• Citation: 261 F.Supp.2d 1249
• Parties: Michael D. CAPUTO, Plaintiff, v. PROFESSIONAL RECOVERY SERVICES, INC., and John Santos, Defendants.
• Court: U.S. District Court — District of Kansas

261 F.Supp.2d 1249

Michael D. CAPUTO, Plaintiff, v. PROFESSIONAL RECOVERY SERVICES, INC., and John Santos, Defendants.

No. 00-4208-SAC.

United States District Court, D. Kansas.

April 21, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James C. Heathman, Topeka, KS, Frederick W. Schwinn, Consumer Law Center, P.A., Livermore, CA, for Plaintiff.

Susan L. Mauch, Cosgrove, Webb & Oman, Topeka, KS, Adam L Plotkin, Denver, CO, Adam L. Plotkin, Denver, CO, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the defendants' motion for summary judgment on plaintiffs claims under the Fair Debt Collection Practices Act, fraud and outrage and partial summary judgment on plaintiffs claims on unconscionable business practices and entitlement to an enhanced penalty under the Kansas Consumer Protection Act (Dk.87); the plaintiffs motion for partial summary judgment to bar the defendant from presenting a bona fide error defense pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692(k) (Dk.91); and the plaintiffs motion for partial summary judgment to have the court declare him a "disabled person" as defined under the Kansas Consumer Protection Act, K.S.A.2000 Supp. § 50-676(b) (Dk.93). The parties having filed their respective memoranda in support, in response and in reply, the matter is ready for decision.

The plaintiff Michael D. Caputo filed this action against the defendant John P. Marzulli, a debt collector, and the defendant Professional Recovery Services, Inc. ("PRS"), the collection agency employing Marzulli, alleging the defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692; violated the Kansas Consumer Protection Act, K.S.A. 50-623; and committed the state law torts of fraud and outrage. These claims arise entirely from one telephone message and four subsequent telephone conversations occurring in January and February of 2000. These calls were made concerning the defendants' efforts to collect on a credit card debt incurred by Caputo when he purchased a Honda tractor mower sometime before 1996.

Before addressing the substance of the motions, the court must comment on the briefs and exhibits that have been submitted. This case consists principally of what was said in a telephone message and four subsequent collection calls, all of which were tape recorded and have been transcribed, reproduced, and submitted as exhibits. Neither side advances any challenge to the accuracy of the recordings, and both sides apparently agree the actual recordings are the best evidence of what was said. This case is unusual in that the most critical facts involved in the litigation are essentially undisputed. Nor is the relevant law governing these claims particularly complex or unsettled. In such circumstances, one would expect the parties to submit concise memorandum that focus on narrow legal issues appropriately suited to summary judgment proceedings. What the court has received is a stack of briefs and exhibits almost eclipsing nine inches. The briefs are anything but concise and focused.¹ They are rambling, repetitive and replete with argumentative, if not somewhat misleading, characterizations of what was said in those recorded conversations.² This chosen manner for briefing the issues has placed an unnecessary demand on the court's time and resources. To conserve its efforts, the court will suspend its normal practice of addressing each tendered paragraph in the parties' statements of fact and simply summarize the more important uncontroverted facts in its discussion of the respective claims.

SUMMARY JUDGMENT STANDARDS

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence of record and draw all reasonable inferences in the light most favorable to the nonmovant. Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995).

The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert, denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). (citations omitted). "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir.1995). "It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment." Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995). The nonmovant's burden is more than a simple showing of "some metaphysical doubtas to the material facts." Matsushita, 475 U.S. at 586,106 S.Ct. 1348. "All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." Vasquez v. Ybarra, 150 F.Supp.2d 1157, 1160 (D.Kan.2001) (citing See Gullickson v. Southwest Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir.1996) (applying local rules of District of Utah)); see also D.Kan. Rule 56.1(b)(1).

FAIR DEBT COLLECTION PRACTICES—BONA FIDE ERROR

As appearing in the pretrial order, the plaintiff generally alleges that the defendants "threatened to have Plaintiff prosecuted criminally for not paying the alleged debt, threatened to tell all his other creditors unless he paid the debt, and made numerous misrepresentations about the legal status of the debt." (Dk.83, p. 5). Later in the pretrial order, under his theory of the Fair Debt Collection Practices Act ("FDCPA"), the plaintiff identified numerous issues of fact to be resolved at trial, specifically whether the defendant: engaged in conduct and used language the natural consequence of which was to harass, oppress or abuse the plaintiff in violation of 15 U.S.C. § 1692d(2); used any false, deceptive, or misleading misrepresentation or means in connection with the collection of a debt, including false representations of the character, amount or legal status of the alleged debt in violation of 15 U.S.C. § 1692e(2)(A); made false representations of any compensation which may be lawfully received by any debt collector for the collection of a debt in violation of 15 U.S.C. § 1692e(2)(B); made false representations or implications that any individual is an attorney or that any communication is from an attorney in violation of 15 U.S.C. § 1692e(3); made representations or implications that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person in violation of 15 U.S.C. § 1692e(4); threatened to take any action that cannot legally be taken or that is not intended to be taken in violation of 15 U.S.C. § 1692e(5); made false representations or implications that the plaintiff committed any crime or other conduct in order to disgrace the consumer in violation of 15 U.S.C. § 1692e(7); communicated or threatened to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed in violation of 15 U.S.C. § 1692e(8); made false representation or used deceptive means to collect or attempt to collect any debt or to obtain information concerning the plaintiff in violation of 15 U.S.C. § 1692e(10); and failed to cease collection of the alleged debt after it was notified by the plaintiff that disputed the alleged debt in violation of 15 U.S.C. § 1692g(b).

Missing from the pretrial order is the plaintiffs identification of which statements in the recorded conversations correspond to which alleged violation of the FDCPA. See Bieber v. Associated Collection Services, Inc., 631 F.Supp. 1410, 1413-14 (D.Kan.1986). Without such an effort, the issues of fact remain mere restatements of the statutory provisions and the court is unable to add any focused structure to the parties' broad summary judgment filings. Thus, as demonstrated hereafter, the court cannot conduct the necessary analysis to decide the summary judgment issues presented under this theory.

"Congress enacted the Fair Debt Collection Practices Act in order to stop 'the use of abusive, deceptive and unfair debt collection practices by...