Dragon v. I.C. System, Inc.
| Decision Date | 12 April 2007 |
| Docket Number | Civil No. 3:05cv00771 (JBA). |
| Court | U.S. District Court — District of Connecticut |
| Parties | Patricia DRAGON, Plaintiff, v. I.C. SYSTEM, INC., Defendant. |
Joanne S. Faulkner, Law Offices of Joanne Faulkner, New Haven, CT, for Plaintiff.
Jonathan D. Elliot, Zeldes, Needle & Cooper, Bridgeport, CT, for Defendant.
Substituted Ruling on Plaintiff's Motion for Partial Summary Judgment [Doc. # 35]
Plaintiff Patricia Dragon's Complaint [Doc. # 1] against defendant I.C. System, Inc. ("ICS") claims inter alia violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, arising from defendant's efforts to collect on a debt allegedly owed by plaintiff to Dell Financial Services ("DFS"). By her Motion for Partial Summary Judgment [Doc. # 35], Ms: Dragon seeks summary judgment on defendant's liability for violation of the FDCPA (Count One). Plaintiffs Motion will be granted in part.
In September 2004, plaintiff purchased a Dell personal computer which arrived by mail in defective condition, and which plaintiff mailed back on October 5, 2004. (Pl. letter to Rollins, Pl.Ex. 3 [Doc. # 35-4] at 7.) Although Dell had promised to absorb the shipping charges, Dell Financial Services mistakenly billed plaintiff for that cost, which as of November 14, 2004 was $92.58 (inclusive of a $10.000 late fee). (Pl Aff., Pl.Ex. 3 [Doc. # 35-4] at 1; Nov. 14, 2004 DFS bill, Pl.Ex. 3 [Doc. # 35-4] at 6.)
Thereafter, defendant debt collector ICS, retained by DFS, sent plaintiff two billing letters. The first, dated January 18, 2005, was in the amount of $136.64 (Jan. 18, 2005 ICS bill, Pl.Ex. 3 [Doc. # 35-4] at 5); the second, dated March 16, 2005, was for $198.46 (Mar. 16, 2005 ICS bill, Pl.Ex. 3 [Doc. # 35-4] at 10). Both statements included the following language:
Your account with Dell Financial Services is past due. We have been asked by Dell Financial Services to begin debt collection activity.... We are a debt collector attempting to collect a debt ... Unless you notify us within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, we will assume this debt it valid. If you notify us in writing within 30 days after receiving this notice that the debt or any portion thereof is disputed, we will: obtain verification of the debt (or obtain a copy of a judgment, if there is one) and mail you a copy of such judgment or verification. If you make a written request within 30 days after receiving this notice, we will provide you with the name and address of the original creditor, if different from the current creditor.
(Jan. 18, 2005 ICS bill, Pl.Ex. 3; Mar. 16, 2005 ICS bill, Pl.Ex. 3.) Plaintiffs Dell account number 6879450119022494011 appeared on the November bill from DFS and the two letters from defendant. The first collection letter from defendant dated January 18, 2005 included, in addition to plaintiffs Dell account number, ICS internal account number F020699629515110 ("first ICS account number"); in the March 16, 2005 billing letter, a different internal account number, F0208655455153G0 ("second ICS account number"), appeared.
On January 23, 2005, plaintiff sent two letters of complaint to Dell: one to President and CEO of Dell, Inc. Kevin B. Rollins (Pl. letter to Rollins, Pl.Ex. 3), and the other to Dell Chairman Michael S. Dell (Pl. letter to Dell, Pl.Ex. 3 [Doc. # 35-4] at 8). Plaintiff then retained counsel, Attorney John C. Wirzbicki, who sent a letter dated February 2, 2005 to defendant stating: (Wirzbicki letter, Pl.Ex. 3 [Doc. # 35-4] at 9.) The requested verification was never sent.
From the activity log of plaintiffs first ICS account number, on February 7, 2005 a "disputed flag"/"ATTY DISPUTE" is shown, after which date no further letters were sent or phone calls made to plaintiff as of March 15, 2005. (First ICS account log, Def. Ex. A [Doc. # 40].) Defendant ICS has a "front-end team" responsible for collecting on an account during its first 120 days, and a "back-end team" which collects on an account from day 121 to day 180. (Def. 56(a)(2) [Doc. # 41] ¶ 13.) While the first ICS account number is a front-end account known by its numerical shorthand designation "9629" (Beckstrom-Ehlers Dep. at 33, Pl.Ex. 4(a) [Doc. # 35-5] at 13), the parties dispute the significance of the second ICS account number in relation to ICS's divided "team" responsibilities: plaintiff maintains that the second ICS account number on the March 16 letter represents the transfer of her initial account to the back-end team; defendant — relying heavily on the deposition and affidavit of Shelley Beckstrom-Ehlers, supervisor of ICS's Dell collection team in the first half of 2005 (Beckstrom-Ehlers Aff. ¶ 3, Def. Exs. [Doc. # 40] at 4) — urges that the second ICS account indicated the initiation of a new, separate debt placement by Dell but admits that the second ICS account was "cross-referenced to the first placement" (Def. 56(a)(2) ¶ 14). On April 28, 2005, DFS sent plaintiff a letter apologizing for having billed her "in the amount of $82.58" and informing her that she no longer had an account balance and that her account dispute was closed. (Apr. 28, 2005 DFS letter, Pl.Ex. 3 [Doc. # 35-4] at 11.)
Plaintiff moves for summary judgment on liability based on defendant's non-disclosure of the amount of debt, defendant's contact with her after receiving an attorney dispute letter, and defendant's attempt to collect on a disputed debt before verification of that debt was provided. Defendant denies any wrongdoing, asserting a statutory "bona fide error" defense.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). A party seeking summary judgment "bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish [its] right to judgment as a matter of law." Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002). The duty of the court is to determine whether there are issues to be tried and in making that determination, the Court must draw all factual inferences in favor of the party opposing the motion, viewing the factual disputes among materials such as affidavits, exhibits, and depositions in the light most favorable to that party. Phaneuf v. Fraikin, 448 F.3d 591, 595 (2d Cir.2006). "If reasonable minds could differ as to the import of the evidence ... and if there is any evidence in the record from any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party simply cannot obtain a summary judgment." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir.1997) (internal quotation, citation, and alteration omitted). The non-moving party, in order to defeat summary judgment, must come forward with evidence that would be sufficient to support a jury verdict in his or her favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), not merely "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Plaintiff moves for summary judgment under multiple provisions of the FDCPA. It is undisputed that plaintiff is a "consumer" and defendant a "debt collector" for purposes of the FDCPA. Although "the Act imposes strict liability, ... a debt collector may escape liability if it can demonstrate by a preponderance of the evidence that `its violation [of the Act] was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.'" Russell v. Equifax A.R.S., 74 F.3d 30, 33-34 (2d Cir.1996).
Under the FDCPA, a debt collector may not falsely represent "the character, amount, or legal status of any debt," "use [] any false representation ... to collect or attempt to collect any debt," or fail to provide the consumer with written notice containing the amount of the debt. 15 U.S.C. §§ 1692e(2), (10), 1692g(a)(1). Plaintiff contends that defendant violated these provisions by "asserting flatly in the notice required by § 1692g that the Balance Due was a sum certain ... since defendant was hired to collect a balance that it knew would increase on a per diem basis, and monthly, by the amount of interest accrued and late charges." (Pl. Mem. at 7.) By contrast, defendant asserts that its (Def. Opp. Mem. at 5.)
After DFS first informed plaintiff in November 2004 that she owed $92.58, defendant ICS's first communication to plaintiff, which plaintiff challenges for failure to properly disclose the amount due on the account, was a January 18, 2005 letter stating:
Your account with Dell Financial Services is past due. We have been asked by Dell Financial Services to begin debt collection activity. If you would like to make payment arrangements please call 1-877-221-3940. We would like to give you the opportunity to clear this debt. Please make your check or money order payable to...
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