Drossin v. National Action Financial Services

• Citation: 641 F.Supp.2d 1314
• Decision Date: 07 August 2009
• Docket Number: Case No. 07-61873-CIV.
• Parties: Wally E. DROSSIN, on behalf of herself and all others similarly situated, Plaintiff, v. NATIONAL ACTION FINANCIAL SERVICES, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1314

641 F.Supp.2d 1314

Wally E. DROSSIN, on behalf of herself and all others similarly situated, Plaintiff, v. NATIONAL ACTION FINANCIAL SERVICES, INC., Defendant.

Case No. 07-61873-CIV.

United States District Court, S.D. Florida.

August 7, 2009.

Donald A. Yarbrough, Fort Lauderdale, FL, O. Randolph Bragg, Horwitz, Horwitz & Associates, Chicago, IL, for Plaintiff.

James Ignatius Sullivan, Chioma Ulumma Hibbert, Hinshaw & Culbertson LLP, Tampa, FL, David M. Schultz, Hinshaw & Culbertson, Chicago, IL, for Defendant.

ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTIONS FOR SUMMARY JUDGMENT

WILLIAM P. DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon Defendant's Motion for Summary Judgment and Memorandum in Support [DE-47; DE-48] and Plaintiff's Motion for Summary Judgment and Memorandum in Support [DE-81; DE-82]. The Court has carefully considered the Motions, Defendant's Statement of Material Facts [DE-49], Plaintiff's Statement of Material Facts [DE-80], Plaintiff's Response [DE-79], Defendant's Response/Reply [DE-87], Defendant's Response to Plaintiff's Statement of Material Facts [DE-88], Plaintiff's Reply [DE-94], Plaintiff's Supplement [DE-116], along with the depositions and exhibits filed in support, and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiff Wally E. Drossin filed this action on December 21, 2007, on behalf of herself and all others similarly situated. She alleges that Defendant National Action Financial Services, Inc. ("NAFS"), violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA"), and the Florida Consumer Collections Practices Act, Fla. Stat. §§ 559.55, et seq. ("FCCPA"), through its communications. Specifically, Plaintiff alleges, in the Amended Complaint, that in telephone messages she received on October 15 and 16, 2007, the Defendant failed to identify itself and failed to indicate the purpose of the messages. Plaintiff claims violations of 15 U.S.C. § 1692d(6) and 15 U.S.C. § 1692e(11), as well as Florida Statute § 559.72(9). She seeks statutory damages, declaratory relief, injunctive relief, and attorney's fees. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

On February 2, 2009, the Court certified a FDCPA class [DE-95] pursuant to Fed. R.Civ.P. 23(b)(3) consisting of:

(i) all Florida residents for whom Defendant left a telephone message

(ii) in which Defendant failed to state that the call was from a debt collector and/or that the purpose of the call was to collect a debt

(iii) incurred for personal, family, or household purposes

(iv) during the one-year period prior to the filing of the Complaint (December 21, 2007) through the date of class certification.

The undisputed facts are as follows:

Plaintiff Wally E. Drossin is an individual who resides in Broward County, Florida. Defendant National Action Financial Services, Inc. is a corporation with its principal place of business in New York. It regularly uses the mails and telephone in a business, the principal purpose of which is the collection of debts. It regularly collects or attempts to collect debts for other parties. Its net worth is $21,565,023.00.

The pre-recorded messages received by Plaintiff on October 15 and 16, 2007 stated as follows:

I am calling with the offices of National Action Financial Services. This message is being left in accordance with both Federal and State regulations. Unfortunately, due to the sensitive nature of this call, Federal laws prohibit the disclosure of any additional information at this time. If you intend to protect your rights as a consumer you will contact me immediately at 1-800-443-2918. That is 1-800-443-2918.¹

II. DISCUSSION

Plaintiff and Defendant have both moved for summary judgment. Plaintiff argues that summary judgment is proper on the basis that Defendant violated the FDCPA and the FCCPA by failing to disclose in its telephone messages that the call was from a debt collector. Plaintiff seeks a declaratory judgment and statutory damages in the amount of $1,000.00 for her as the named plaintiff and $215,650.00 (1% of NAFS' net worth) for the FDCPA class. She also seeks $1,000.00 for herself and $215,650.00 for the FCCPA class, along with a permanent injunction barring NAFS from leaving telephone messages.²

Defendant filed a Motion for Summary Judgment, arguing that the Section 1692d(6) claim fails, as does the Section 1692e(11) claim. Defendant argues that Plaintiff is not a consumer and that the messages adequately disclosed it was a debt collector. Defendant also argues that the FCCPA claim is not supported by any evidence. Moreover, even if any of the claims were valid, it has a bona fide error defense. It had policies in place to reasonably avoid violations and any violations were merely due to errors. Finally, Defendant argues that declaratory relief is not available and the injunctive relief sought under the FCCPA is moot.

A. Applicable Law

Congress established the FDCPA to "eliminate abusive debt collection practices." 15 U.S.C. § 1692. The FDCPA restricts communications from debt collectors to consumers in various ways. See e.g., 15 U.S.C. § 1692c (restricting, among other things, the time or place when a debt collector may contact a consumer); 15 U.S.C. § 1692d (prohibiting harassing or abusive conduct in connection with the collection of a debt). Although debt collectors are to refrain from mentioning the debt when communicating with third parties, they must provide a warning that is sometimes referred to as the "mini-Miranda." See e.g., Barrows v. Chase Manhattan Mortgage Corp., 465 F.Supp.2d 347, 359-60 (D.N.J.2006). This warning requires that debt callers give "meaningful disclosure of the caller's identity" when placing telephone calls, except when communicating with third parties. 15 U.S.C. § 1692d(6). It is also required that in an initial oral communication, a debt collector must indicate that it is "attempting to collect a debt and that any information obtained will be used for that purpose," and that in subsequent communications, the debt collector must identify itself as a debt collector. 15 U.S.C. § 1692e(11).

Notably, "[t]he FDCPA establishes a strict liability standard; a consumer need not show [an] intentional violation of the Act by a debt collector to be entitled to damages." Castro v. A.R.S. Nat'l Servs., Inc., 2000 WL 264310, *2 (S.D.N.Y. Mar. 8, 2000) (citing Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996)). A single violation of the Act is sufficient to subject a debt collector to liability under the Act. Id. When a court evaluates whether language is deceptive under the FDCPA, it applies an objective standard to the language's tendency "`to mislead the least sophisticated'" consumer, in order to give effect to the FDCPA's purpose of protecting consumers. Jeter v. Credit Bureau, 760 F.2d 1168, 1175 (11th Cir.1985) (quoting Wright v. Credit Bureau of Ga., Inc., 548 F.Supp. 591, 599 (N.D.Ga.1982)). Courts may assume, however, that the least sophisticated consumer will "possess a rudimentary amount of information about the world" and will not make "unreasonable misinterpretations." Rivera v. Amalgamated Debt Collection Servs., 462 F.Supp.2d 1223, 1227 (S.D.Fla.2006) (quotations omitted).

For its part, the Florida Consumer Collections Practices Act, Section 559.72(9) prohibits persons, in collecting consumer debts, from "claim[ing], attempt[ing], or threaten[ing] to enforce a debt when such person knows that the debt is not legitimate or assert[ing] the existence of some other legal right when such person knows that the right does not exist." Fla. Stat. § 559.72(9).

B. Standard of Review

The Court may grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142(1970).

The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548.

After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is 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). Consideration of a motion for summary judgment does not lessen the burden on the non-moving party; the non-moving party still bears the burden of coming forward with sufficient evidence on each element that must be proven. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). According to the plain language of Rule 56(e), the nonmoving party "may not rely merely on allegations or denials in its own pleading," but instead must come forward with "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

Essentially, so long as the nonmoving party has had an ample opportunity to conduct discovery, it must come forward with affirmative...