Edwards v. Niagara Credit Solutions, Inc.

• Decision Date: 13 November 2008
• Docket Number: Civil Action No. 1:07-CV-2396-BBM.
• Citation: 586 F.Supp.2d 1346
• Parties: Brenda EDWARDS, Plaintiff, v. NIAGARA CREDIT SOLUTIONS, INC., a New York Corporation, Defendant.
• Court: U.S. District Court — Northern District of Georgia

586 F.Supp.2d 1346

Brenda EDWARDS, Plaintiff, v. NIAGARA CREDIT SOLUTIONS, INC., a New York Corporation, Defendant.

Civil Action No. 1:07-CV-2396-BBM.

United States District Court, N.D. Georgia, Atlanta Division.

November 13, 2008.

COPYRIGHT MATERIAL OMITTED

James Marvin Feagle, Law Office of James M. Feagle, P.C., Decatur, GA, Kris Kelly Skaar, Law Office of Kris Skaar, Marietta, GA, for Plaintiff.

Michael D. Robl, Thomerson, Spears & Robl, LLC, Savannah, GA, for Defendant.

ORDER

BEVERLY B. MARTIN, District Judge.

This case, brought pursuant to the Fair Debt Collection Practices Act ("FDCPA"), is before the court on the Report and Recommendation of the Magistrate Judge (the "R & R") [Doc. No. 19]. The R & R recommends that the court grant Plaintiff Brenda Edwards's ("Ms. Edwards") Motion for Summary Judgment. [Doc. No. 16]. Defendant Niagara Credit Solutions, Inc. ("Niagara") has filed Objections to the R & R [Doc. No. 20], which the court considers on a de novo basis.

I. Niagara's Objections and Standards of Review

Niagara makes four objections in its request for review: (1) that the answering machine messages at issue are not "communications" under the FDCPA, (2) if they are "communications," that it did not violate 15 U.S.C. §§ 1692d(6) & 1692e(11) because the messages did not include harassing language, (3) that the "bona fide error" defense is available, and (4) that the statutory maximum damage award should not be awarded. Niagara also requests that this court engage in de novo review of certain portions of its prior briefs. To that end, it has included objections simply for "reasons stated in Niagara's brief opposing summary judgment." (Def.'s Objections 22.) And, instead of objecting to particular facts, Niagara has attempted to incorporate "facts by reference [included in prior briefs] as if set out fully in this Objection." (Id. at 3.)

As an initial matter the court declines to consider de novo Niagara's arguments that are not set forth as "specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); see Tauber v. Barnhart, 438 F.Supp.2d 1366, 1373 (N.D.Ga.2006) (Story, J.). Where Niagara has not raised a specific objection, the court reviews the R & R for clear error. Tauber, 438 F.Supp.2d at 1373-74 (citing HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir.2005)); Chamblee v. Schweiker, 518 F.Supp. 519, 520 (N.D.Ga. 1981) (O'Kelley, J.). Clear error review asks if, "after viewing all the evidence, we are `left with the definite and firm conviction that a mistake has been committed.'" HGI Assocs., 427 F.3d at 873 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

II. Background

Niagara has not specifically objected to the Magistrate Judge's recitation of the facts. Instead, it attempts to "incorporate[ ] those facts by reference" that were stated in its "motion for summary judgment, the Sworn Declaration submitted in support of its brief, and its separate statement of additional material facts . . . . as if set out fully in this Objection." (Def.'s Objections 3 (emphasis added).) This does not constitute a specific written objection to the R & R. The court has reviewed the Magistrate Judge's recitation of the facts under the clear error standard and finds none. Therefore, the court adopts those facts as stated in the R & R. The following is a brief summary of the most relevant facts in a light favorable to Niagara.

Niagara is a debt collector subject to the provisions of the FDCPA. In an attempt to collect a consumer debt from Ms. Edwards, Niagara contacted Ms. Edwards through letters, phone calls, and a series of approximately 14 messages on her answering machine from July through October 2007. In September 2007 Niagara left a message on Ms. Edwards's answering machine stating that the message was "important." (Pl.'s Statement of Material Facts ¶¶ 12-14.) The message did not state the name of the Defendant. In October 2007 Niagra left a message on Ms. Edwards's answering machine that stating "[t]his message is intended for Brenda Edwards. Please contact Jennifer [last name not clear] at 1 800 381 0416, my extension is 220. When returning my call have your file number available, it's 1250740." (Id. ¶ 15.) Also, in October 2007 Niagara left another message on Ms. Edwards's answering machine stating "Brenda Edwards, contact Mrs. Strickland at 1-800-381-0416 extension 220. When returning the call have your file number available, please, 1250740." (Id. ¶ 16.) Niagara's company policy when leaving a message on the answering machine is "NOT to indicate that the call is from `Niagara Credit Solutions, Inc.' The policy is also NOT to indicate that the call is from a `debt collector' or for the `purpose of collecting a debt." (Def.'s Statement of Additional Material Facts ¶ 18.)

Ms. Edwards filed a Complaint against Niagara alleging that the voice messages left on her answering machine violate the FDCPA. Specifically, she contends because the messages fail to identify Niagara as the caller and fail to disclose that the messages were from a debt collector, they violate the FDCPA. On April 24, 2008 Ms. Edwards filed a Motion for Summary Judgment. On October 21, 2008 the Magistrate Judge issued the R & R recommending that Ms. Edwards's Motion be granted. Niagara filed its objections on November 4, 2008.

III. Legal Standard

Summary judgment is appropriate only when the pleadings and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A dispute over a fact will preclude summary judgment if the dispute "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court must deny summary judgment "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

Although in considering a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor," id. at 255, 106 S.Ct. 2505, the nonmovant 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). Indeed, the nonmovant must present affirmative evidence beyond mere allegations to show that a genuine issue of material fact does exist. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. Furthermore, the court must evaluate the evidence "through the prism of the substantive evidentiary burden" at trial. Anderson, 477 U.S. at 254, 106 S.Ct. 2505.

IV. Analysis

Niagara has made four objections to the R & R. After careful consideration of Niagara's objections, the court agrees with the Magistrate Judge's rulings.

A. Whether the Answering Machine Messages are "Communications" as Defined by FDCPA

Niagara objects to the Magistrate Judge's conclusion that the answering machine messages it left for Ms. Edwards were "communications" covered by the FDCPA. It claims they were not communications because the messages did not convey any specific information about a debt, nor do they implicate the legislative intent to stop abusive practices. In support of its objection, Niagara references its brief opposing summary judgment. The court has reviewed Niagara's brief, and finds that it does not include any additional objections. Therefore the court reviews de novo Niagara's objection that the messages do not meet the statutory definition of "communication."

15 U.S.C. § 1692a(2) provides that "[t]he term `communication' means the conveying of information regarding a debt directly or indirectly to any person through any medium." The Magistrate Judge found that the messages here, which did not convey specific information about a the debt, but rather, instructed Ms. Edwards to return a call would be considered "communications" under the statute. The Magistrate Judge reasoned, and this court agrees, that the messages at issue here indirectly conveyed information about a debt. The messages referenced an "important" matter—a debt; contained information regarding a file number and whom to contact about the debt; and were left for the purpose of collecting a debt. Though the word "debt" was never used, no one disputes that the calls were about the debt allegedly owed by Ms. Edwards that Niagara was seeking to collect. The phone messages indirectly conveyed information concerning this debt.

The Magistrate Judge also correctly notes that the majority of courts that have addressed this issue have held that a phone message referencing an "important matter" or similar language may be considered a "communication" under the FDCPA. See e.g., Belin v. Litton Loan Servicing, LP, 8:06-cv-760-T-24 EAJ, 2006 WL 1992410, at *4 (M.D.Fla. July 14, 2006); Masciarelli v. Richard J. Boudreau & Assocs., LLC, 529 F.Supp.2d 183, 185-86 (D.Mass.2007); Costa v. Nat'l Action Fin. Servs., 2007 WL 4526510, at *5 (E.D.Cal. Dec.19, 2007); Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643, 654-60 (S.D.N.Y.2006); Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104, 1116 (C.D.Cal.2005); but see Biggs v. Credit Collections, Inc., No. CIV-07-0053-F, 2007 WL 4034997, at *4 (W.D.Okla. Nov.15, 2007).

Indeed, at least one court within the Eleventh Circuit has reached this conclusion. In Belin, the Middle District of Florida found that phone messages that referenced the name of a company, gave directions to return the phone call, but did not disclose that the call came from a debt collector were "communications" under the FDCPA. It rejected the argument, like the one made here, that the messages were not "communications" because the messages "did not convey information regarding a debt." Belin, 2006 WL 1992410, at *4. The court...