Cushman v. Gc Services, Lp, Civil Action No. H-08-2229.

• Decision Date: 13 August 2009
• Docket Number: Civil Action No. H-08-2229.
• Citation: 657 F.Supp.2d 834
• Parties: Naomi CUSHMAN, Plaintiff, v. GC SERVICES, LP., Defendant.
• Court: U.S. District Court — Southern District of Texas

657 F.Supp.2d 834

Naomi CUSHMAN, Plaintiff, v. GC SERVICES, LP., Defendant.

Civil Action No. H-08-2229.

United States District Court, S.D. Texas, Houston Division.

August 13, 2009.

Marshall Meyers, Weisberg & Meyers LLC, Phoenix, AZ, Susan A. Landgraf, Weisberg Meyers LLC, Austin, TX, for Plaintiff.

Kandy Elaine Johnson Messenger, Sprott Rigby Newsom Robbins Lunceford & Bell, PC, Houston, TX, for Defendant.

ORDER

VANESSA D. GILMORE, District Judge.

Pending before the Court is Defendant GC Services, LP's Motion for Partial Summary Judgment on Plaintiffs DTPA and TDCPA claims, incorrectly styled as Defendant GC Services, LP's Partial Motion for Summary Judgment. (Instrument No. 17).

I.

A.

Plaintiff Naomi Cushman ("Plaintiff" or "Cushman") brings suit for damages against Defendant GC Services, LP ("Defendant" or "GC Services") for debt collection actions allegedly taken in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"), the Texas Debt Collection Practices Act, Chapter 392 ("TDCPA"), and the Texas Business and Commerce Code, Subchapter E, Chapter 17 ("DTPA"). (Instrument No. 1, at 1). Plaintiff seeks statutory damages and a declaratory judgment for violations of the FDCPA. (Id., at 7). She seeks a declaratory judgment under the TDCPA, as well as all actual damages, exemplary damages, mental anguish damages, and discretionary additional damages as recovery for Defendant's conduct. (Id.).

B.

The facts of this case stem from a debt Cushman owed on her American Express credit card and GC Services's attempt to collect the debt. Plaintiff first remembers being contacted by American Express sometime in the spring of 2007 after she fell behind on her payments. (Instrument No. 17, Exhibit A, at 48). She subsequently resumed payments but then fell behind again in approximately March of 2008. (Id., at 49). In March 2008, Plaintiff began receiving calls from Defendant GC Services regarding the debt on her American Express account. (Id., at 54). She received both letters through the mail as well as voice mail messages left on her cell phone. (Id.).

Plaintiff never answered calls from Defendant directly. Instead, she called Defendant back after receiving voice mails. (Id., at 68). Plaintiff only spoke to Defendant's employees on two occasions, March 31st and May 6th. (Id., at 132). She also received calls between those two dates, but she cannot remember the frequency of the calls. (Id.). Plaintiff has no memory of Defendant's representatives ever using foul language or curse words. (Id., at 154).

On March 31, 2008, Plaintiff called GC Services from her cell phone while sitting in her car in the Chick-Fil-A parking lot during her lunch break. (Id., at 69). She spoke with a Ms. Dunn, an employee of GC Services, concerning her account. (Id., at 55). Plaintiff felt that the conversation with Ms. Dunn was "way out of line." (Id., at 57). Plaintiff described Ms. Dunn as "aggressive, belligerent" and unwilling to set up a payment arrangement. (Id.). According to Plaintiff, Ms. Dunn "said the only option was payment in full, which, of course, was impossible at the time." (Id., at 71). Plaintiff further alleges that Ms. Dunn was angry and told her "You think you know the law. You don't. We'll see." (Id., at 72). This left Plaintiff feeling "like there was a henchman behind me about to break my knees." (Id.). Plaintiff contends that she was threatened; Ms. Dunn purportedly stated that Defendant would attempt to garnish Plaintiffs wages and contact her employer and family members to get the money. (Id., at 73). Plaintiff "remember[s] her saying that—talking about, the options are wage garnishment, potentially jail, blah, blah, blah, blah" (Id., at 76-77).

Plaintiff also claims that Defendant contacted her employer directly. In the spring of 2007, Cushman received a call from a collections agency, which she believes was GC Services, at the branch office where she was employed as a contract worker. (Id., at 83). Because she was on a temporary assignment at the branch office, Plaintiff claims that "[t]here is no way that there is any record that they could have found, any public record, that would have associated me with that branch office phone number." (Id., at 80). Plaintiff does not have any documentation evidencing that GC Services in fact contacted another office to find out where Plaintiff was assigned. (Id., at 81).

Plaintiff is not aware of any of her family members being contacted concerning her debt. (Id., at 100). However, after the phone call with Ms. Dunn, Plaintiff alerted her mother, who is in a nursing home, to the possibility that a company might call asking for her whereabouts. (Id., at 101). Plaintiff also alerted her fiance and a woman who was living with her at the time about the problems and potential calls from GC Services. (Id., at 101).

After the call on March 31, 2008, Plaintiff next spoke with one of Defendant's employees on May 6, 2008. (Id., at 125). She had received voice mails from a man named Mr. Lewis and, believing that she would have a better chance of working out a payment plan with a different representative, Plaintiff called GC Services and asked to speak to Mr. Lewis. (Id.). She made the call from her car at 6:46 pm in a Whole Foods parking lot. (Id., at 126-127). After being told by the representative who answered the phone that Mr. Lewis was not in, she discussed her account with another man, whose name Cushman cannot recall. (Id., at 127). She recalls the call being "much more civil" and that they had actually worked out a payment agreement. (Id., at 129). However, towards the end of the call, Plaintiff requested that GC Services stop contacting her now that she had agreed to a payment plan. At that point, the man told her that it was not possible to end the calls because they were required to contact her on a weekly basis. (Id.). Plaintiff then offered to contact them in writing to request the calls cease, but the man replied "we may or may not receive your letter." (Id.). According to Plaintiff, she then stated that she would contact American Express directly to make her request, but the man told her "you can't" and "[t]hey won't speak with you [because i]t's our debt now." (Id., at 130). Plaintiff also alleges that the man again mentioned the possibility of wage garnishment after stating that her letter might not be received. (Id., at 150).

Plaintiff does not report missing work in connection with Defendant's debt collection activities. (Id., at 206). After the last telephone conversation in May 2008, Plaintiff is unaware of Defendant contacting any of her family members, friends, or employers or attempting to garnish her wages. (Id., at 232). Plaintiff does allege that she lost sleep for about half the nights between March 31st and May 6th. (Id., at 236). Additionally, Plaintiff contracted shingles in August 2008 and requires ongoing treatment. (Id., at 259). Plaintiff claims that Defendant is thirty to forty percent responsible for her condition. (Id., at 280).

In addition to the phone calls, Cushman also received letters from GC Services. The letters contained language directing her to call GC Service's General Manager, Mr. Bernhagen, regarding the handling of the account. (Instrument No. 19, Exhibit D). Plaintiff never contacted Mr. Bernhagen or GC Services concerning their method of handling the account. (Instrument No. 17, Exhibit A, at 176). Sometime around August of 2008, Plaintiff was contacted by Mr. Earle Britton, an attorney with the Korn Law Firm, after her account was sent to that firm for collection. (Id., at 193-195). Plaintiff set up a payment plan and paid off the debt within approximately thirty days. (Id., at 195).

C.

Plaintiff brought suit against Defendant on July 16, 2008, seeking damages for debt collection actions allegedly taken in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"), the Texas Debt Collection Practices Act, Chapter 392 ("TDCPA"), and the Texas Business and Commerce Code, Subchapter E, § 17, commonly known as the Texas Deceptive Trade Practices and Plaintiff Protection Act ("DTPA"). (Instrument No. 1, at 1). As to her FDCPA claim, Plaintiff alleges that Defendant, in attempts to collect the debt, threatened to take actions that are in violation of § 1692(e)(5), used profane language in violation of § 1692(d)(2), contacted third parties regarding the debt in violation of § 1692(B), and attempted to contact Cushman at inconvenient times in violation of § 1692(C). (Instrument No. 15, at 3-4). In support of her TDCPA claim, Plaintiff contends that Defendant used false or deceptive means and abusive language to collect the debt, in violation of Tex. Fin. Code §§ 392.304(19) and 392.302(1). (Id., at 4). Finally, regarding her DTPA claim, Plaintiff claims that Defendant violated § 17.41 by making material representations which it knew or should have known to be false. (Id., at 6).

On July 22, 2008, Defendant filed an answer to Plaintiffs original complaint and raised the affirmative defense of failure to state a claim. (Instrument No. 4). Defendant argued that its actions did not rise to the level of reckless, willful, wanton, intentional, knowing or malicious, and therefore Defendant lacked the requisite intent. (Id., at 5). Defendant also argued that Plaintiff could have mitigated her damages and thus that any award she may receive should be reduced by that amount. (Id.) Defendant also filed an offer of judgment on July 22, 2008, offering to settle Plaintiff's claim for $1,750.00. (Instrument No. 5, at 1).

On January 15, 2009, Plaintiff filed a motion to amend the complaint based on evidence obtained through discovery. (Instrument No. 13). Defendant did not oppose the amendment (Id., Exhibit A). The Court granted Plaintiff's motion and Plaintiff filed her first amended complaint on February 24, 2009. (Instrument No. 15). In the amended complaint, Plaintiff reiterated the...