Chatman v. GC Servs., LP

• Decision Date: 06 November 2014
• Docket Number: Civil Action No. 3:14–cv–00526–CMC.
• Citation: 57 F.Supp.3d 560
• Court: U.S. District Court — District of South Carolina
• Parties: Kimbrelyn CHATMAN, on behalf of herself and others similarly situated, Plaintiff, v. GC SERVICES, LP, Defendant.

57 F.Supp.3d 560

Kimbrelyn CHATMAN, on behalf of herself and others similarly situated, Plaintiff

v.GC SERVICES, LP, Defendant.

Civil Action No. 3:14–cv–00526–CMC.

United States District Court, D. South Carolina, Columbia Division.

Signed Nov. 6, 2014.

Holly Elizabeth Dowd, Weisberg and Meyers, Phoenix, AZ, Aaron D. Radbil, Michael L. Greenwald, Greenwald Davidson, Boca Raton, FL, for Plaintiff.

Fred W. Trey Suggs, III, Roe Cassidy Coates and Price, Greenville, SC, Michael Twomey, William S. Helfand, Chamberlain Hrdlicka White Williams and Aughtry, Houston, TX, for Defendant.

ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

CAMERON McGOWAN CURRIE, Senior District Judge.

This matter is before the court Plaintiff's motion for partial summary judgment.

Specifically, Plaintiff, Kimbrelyn Chatman (“Chatman”), seeks summary judgment as to liability on her individual claim that Defendant, GC Services, LP (“GP”), violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., by leaving two very similar voice messages on Chatman's cellular telephone.¹ For the reasons set forth below, the motion is granted.

STANDARD

Summary judgment should be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). It is well established that summary judgment should be granted “only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

FACTS

Taken in the light most favorable to GC, the facts are as follows. Chatman received two very similar voice messages on her cellular telephone in May 2013. ECF No. 52–2 ¶¶ 3–5. The earlier of the two messages was as follows: “This message is intended for Kim Chatman. My name is Olivia [last name inaudible]. It is important for you to return my call. My number is 866–862–2789.” Id. ¶ 5. The second message was as follows: “Hello, this message is intended for Kim Chatman. My name is Angel [last name inaudible]. Please return my phone call at 866–862–2789. Thank you.” Id. ¶ 6.

Although the precise wording of these messages is supported only by Chatman's declaration, which was filed with her reply memorandum, the general content was addressed in evidence cited in Chatman's opening memorandum.² For example, Chatman addressed the general content (and absence of required disclosures) in her deposition. See ECF No. 39–7 at 12 (Chatman dep. at 39 explaining that the messages did not “specify who they were. They were calling like they were my friends or something or someone I knew or someone that I needed to get in contact with. For whatever reason, I didn't know because they didn't specify. It was like, My name is So-and-so. Call me back at, you know, this number.”); id. (Chatman dep. at 39–40 including the following exchange: Q. So, really, they left a message that said this is So-and-so. I'm calling about an important matter. Please call me at this number. Something like that, correct? A. Something along those lines. Q. And so what about that are you complaining about? A. I didn't know who it was. I didn't know who was calling me, and they left a few messages.”). Other evidence suggests that GC has had access to a recording of these messages since at least early July 2014. See, e.g., ECF No. 39–1 at 78–79 (deposition of GC's corporate representative, Paul Grover, referring to having read a transcript of the messages); ECF No. 52–1 (July 8, 2014 email between counsel relating to disclosure of recording); ECF No. 39–7 at 4 (defense counsel referring during Chatman's deposition to having received “a tape recording that sounds like you kind of narrating something or somebody narrating something and then a reply of some voicemail messages that say, Hello. this is So-and-so. Would you please call me at this number[.]”). GC does not, in any event, present any evidence that the messages were not as described by Chatman.

In light of other evidence discussed below, and in the absence of any evidence to the contrary, the only reasonable inference is that these messages (which included a return phone number) were, in fact, from GC. For example, GC's own documents indicate that GC representatives left voicemail messages for Chatman on May 6 and 16, 2013. See ECF Nos. 39–3 (GC's “Account Detail Listing” for Chatman's account); ECF No. 39–4 (GC's “Dialer Report” for Chatman's account)³ ; ECF No. 39–1 at 43–46 (Grover dep. at 42–45 explaining codes used on Account Detail Listing).⁴

In light of Chatman's uncontroverted declaration, it is also beyond dispute that the calls related to collection of a consumer debt. ECF No. 52–2 ¶¶ 7, 8 (Chatman declaration relating to nature of her debt to QVC); see also ECF No. 39–3 at 2 (GC's Account Detail Listing disclosing creditor (QVC) and purchases to which debt related); ECF No. 39–1 at 37 (Grover dep. at 36 indicating client for whom calls were made to Chatman was QVC); id. at 67 (Grover dep. at 77 agreeing “specific debt issue in this case” was a “consumer debt,” stating he “would imagine” it was a debt “incurred for personal, family, or household purposes[,]” and agreeing messages left “were an effort to collect that debt” and that GC had no other reason to call Chatman).⁵

GC's corporate representative conceded that he had read a transcript of the alleged messages and that the messages reflected on the transcript “followed GC company policy.” ECF No. 39–1 at 68–69 (Grover dep. at 78–79). The corporate representative also confirmed that it has “always” been GC's policy “that if ... a consumer's outgoing voice message does not include a first and a last name, GC does not leave a message which states that it is a debt collector and it is GC Services.” Id. at 69 (Grover dep. at 79). That policy, which is in written form, instructs GC's employees that they should leave a “Voicemail Disclaimer,” meaning a disclosure that the caller is a debt collector, only if the caller first “verified that a telephone number for a debtor is a valid number.” ECF No. 39–2 at 4 (listing several means of verifying the number including if the debtor has confirmed the number or the outgoing message provides both a first and last name); see also Grover dep. at 59 (agreeing that GC's employees were instructed to “just leave the name and a phone number” unless they had “identified the customer or talked to them at that number before.”); ECF No. 47–3 ¶¶ 4, 5 (Grover declaration explaining why GC does not disclose that it is a debt collector until it has confirmed that the number belongs to the debtor).

A substantial portion of GC's business is collecting debts for other companies. Grover dep. at 9–10 (agreeing GC is one of the largest private debt collection agencies in North America and estimating debt collection constitutes 40 to 45% of GC's business). Thus, GC is a third-party debt collector and was acting in that capacity when it left messages for Chatman in May 2013. See ECF No. 47–3 ¶¶ 2, 3 (Grover declaration addressing GC's “third-party debt collection procedures and practices” such as those followed on behalf of “QVC in this case”).

DISCUSSION

Chatman argues that she is entitled to summary judgment on liability on both of her claims. Specifically, she argues that the undisputed evidence establishes that GC violated 15 U.S.C. §§ 1692d(6) and 1692e(11) by leaving the two messages quoted above because GC is a debt collector as defined by the FDCPA, the messages related to collection of a consumer debt, and the messages failed to disclose that the call was from GC, that GC was a debt collector, or that the message related to collection of a debt.

GC opposes summary judgment on both factual and legal grounds.⁶ GC's first two arguments relate to the adequacy of Chatman's proffer of evidence. ECF No. 47 at 3–6. For reasons explained above in the statement of facts, these arguments are defeated by Chatman's declaration filed with her reply.⁷

GC's third argument is a legal argument that the voicemail messages are not “communications” as defined by the FDCPA and, consequently, are not subject to the disclosure requirements of 15 U.S.C. § 1692e(11). ECF No. 47 at 7–9. GC's fourth argument is that the messages did not violate 15 U.S.C. § 1692d(6) because they were left solely for the purpose of locating Chatman, and, therefore, fall within the exemption for calls pursuant to 15 U.S.C. § 1692b. ECF No. 47 at 9–12. These legal arguments are rejected for reasons explained below.

Fair Debt Collection Practices Act. The FDCPA is a comprehensive statute that requires and prohibits certain activities in connection with collection of debts by debt collectors. See 15 U.S.C. § 1692 et seq. The express purposes of the FDCPA are to “eliminate abusive debt collection practices by debt collectors, to insure that debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). Consistent with its protective purpose, the FDCPA provides consumers with a private right of action for violations of the FDCPA. 15 U.S.C. § 1692k (establishing private cause of action for actual and statutory damages and authorizing an award of attorneys fees).

Elements of an FDCPA Claim. To establish a violation of the FDCPA, Chatman must prove that (1) she has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3...