Erickson v. Gen. Elec. Co.

• Decision Date: 23 February 2012
• Docket Number: Case No. 3:11–cv–37–J–37TEM.
• Parties: Mary ERICKSON, Plaintiff, v. GENERAL ELECTRIC COMPANY, Equable Ascent Financial, LLC, Credit Control, LLC, and Enhanced Recovery Company, LLC, Defendants.
• Court: U.S. District Court — Middle District of Florida

854 F.Supp.2d 1178

Mary ERICKSON, Plaintiff,

v.GENERAL ELECTRIC COMPANY, Equable Ascent Financial, LLC, Credit Control, LLC, and Enhanced Recovery Company, LLC, Defendants.

Case No. 3:11–cv–37–J–37TEM.

United States District Court,

M.D. Florida,

Jacksonville Division.

Feb. 23, 2012.

Ryan Garrett Moore, First Coast Consumer Law, Wendell Finner, PA, Jacksonville Beach, FL, for Plaintiff.

Dale R. Hightower, Harold Davis Lewis, Jr., Hightower & Partners, Orlando, FL, Barbara A. Sinsley, Barron, Newburger & Sinsley, PLLC, Lutz, FL, Robert Franklin Springfield, Burr & Forman, LLP, Birmingham, AL, for Defendants.

Order

ROY B. DALTON, JR., District Judge.

This cause comes before the Court on Defendant EQUABLE ASCENT FINANCIAL, LLC's (“Equable”) Renewed Motion for Summary Judgment (Doc. No. 69), filed on July 27, 2011. Plaintiff MARY ERICKSON (“Ms. Erickson”) filed her response to the motion (Doc. No. 70), and Equable filed its Reply to Ms. Erickson's Response to its Renewed Motion for Summary Judgment (Doc. No. 77). Thus, the motion is ripe for the Court's disposition.

BACKGROUND

This is an unlawful collection practices action arising under the Fair Debt Collection Practices Act, Title 15, United States Code, §§ 1692 et seq. (“FDCPA”), and the Florida Consumer Collection Practices Act (“FCCPA”), §§ 559.55 et seq., Florida Statutes. ( See generally Doc. No. 22.) ¹ Ms. Erickson had an alleged debt owed to General Electric arising out of her personal, family or household needs. ( Id. at ¶ 6.) On March 20, 2009, Ms. Erickson's counsel informed General Electric that Ms. Erickson had retained him. ( Id. at ¶ 7.) Ms. Erickson's counsel also informed General Electric that it should cease contacting Ms. Erickson and contact him instead. ( Id. at ¶ 7.)

Notwithstanding the March 20, 2009 letter, Credit Control, a debt collector, sent Ms. Erickson a letter dated June 15, 2010, which sought to settle her outstanding debt. ( Id. at ¶ 9, Ex. B.) This letter was followed by a September 14, 2010 “collection notice” from Enhanced Recovery on behalf of Equable. ( Id. at ¶ 10.) In this correspondence, Enhanced Recovery informed Ms. Erickson that Equable had purchased her debt from General Electric and that it was handling the collection for Equable. ( Id., Ex. C.) Enhanced Recovery sent Ms. Erickson a second letter on October 28, 2010 offering several options for the payment of the debt. ( Id., Ex. D.)

In Count II of the Second Amended Complaint, Ms. Erickson alleges the following claims against Equable: (1) violations of FCCPA, Fla. Stat. §§ 559.72(9) and (18)²; and, (2) violations of FDCPA, 15 U.S.C. §§ 1692c(a)(2)³ and 1692e(2) and (5)⁴. ( Id. at 4.) Moreover in Count V, Ms. Erickson seeks a permanent injunction against Equable, its officers, directors, agents, attorneys, and employees, and anyone acting in concert with it, from contacting Ms. Erickson or any other person in connection with the alleged debt, and awarding Ms. Erickson pre- and post-judgment interest, attorney's fees and costs. ( Id. at 6.)

ANALYSIS

A. Standard on Motion for Summary Judgment

Summary judgment is appropriate when the movant can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir.2009) (citing Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir.2007)). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Evidence is reviewed in the light most favorable to the non-moving party. Fennell, 559 F.3d at 1216 (citing Forman, 509 F.3d at 1356). A moving party discharges its burden by showing that there is an absence of evidence to support the non-moving party's case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.2001) (citation omitted).

When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir.2006) (citation omitted). The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.1985) (stating “conclusory allegations without specific supporting facts have no probative value”). This Court may not decide a genuine factual dispute at the summary judgment stage. Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564 (11th Cir.1990). “[I]f factual issues are present, the [C]ourt must deny the motion and proceed to trial.” Id. (quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983)).

B. Parties' Arguments

Equable argues that Ms. Erickson has not presented, nor can she present, any evidence showing that Equable had actual knowledge of Ms. Erickson's representation by legal counsel prior to the filing of this cause of action. (Doc. No. 69, pp. 3–6.) As such, Equable contends that there is no genuine dispute as to this issue, and Ms. Erickson's claims of alleged violations of FDCPA § 1692c(a)(2) and FCCPA §§ 559.72(9) and (18)—all having the actual knowledge requirement—are to be summarily decided in its favor. ⁵ In her response, Ms. Erickson simply states that the reason why she has not been able to produce such evidence is Equable's refusal to produce the requested documents. (Doc. No. 70, p. 1; Ex. A.)

Moreover, Ms. Erickson submits that in her Second Amended Complaint she asserts that Equable did not provide a timely notice of assignment of debt pursuant to Fla. Stat. § 559.715, and that, therefore, its collection attempts constitute a collection of debt that cannot legally be collected, a violation of FDCPA § 1692e(5). Ms. Erickson states that Equable's “failure to provide a copy of a timely notice of assignment, either in connection with the [m]otion or in response to discovery, implies that no such notice was ever given.” ( Id. at 2.) Therefore, Ms. Erickson argues, “[i]n the absence of evidence from [Equable] showing that timely notice of assignment was given,” Equable's motion for summary judgment should be denied. ( Id.)

In its reply, Equable lamentably does not assert that it provided timely notice of assignment to Ms. Erickson, but rather it focuses on the argument that a violation of a state statute cannot serve as the basis for a violation of the FDCPA. (Doc. No. 77, pp. 3–5.)

C. Discussion

The FDCPA is a strict liability statute, the purpose of which is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692e. The Eleventh Circuit, in Oppenheim v. I.C. System, Inc., 627 F.3d 833, 836–37 (11th Cir.2010), held that “[t]o recover under both the FDCPA and the FCCPA (a Florida state analogue to the federal FDCPA), a plaintiff must make a threshold showing that the money being collected qualifies as a ‘debt.’ ” In the FDCPA and the FCCPA,

“debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

15 U.S.C. § 1692a(5); Fla. Stat. § 559.55(1). Accordingly, the Oppenheim court held that “the FDCPA and FCCPA apply only to payment obligations of a (1) consumer arising out of a (2) transaction in which the money, property, insurance, or services at issue are (3) primarily for personal, family, or household purposes. The statute thus makes clear that the mere obligation to pay does not constitute ‘debt’ under the FDCPA.” Oppenheim, 627 F.3d at 837 (emphasis in original).

In order to prevail on an FDCPA claim, a plaintiff must plead and prove three elements. First, the plaintiff must have been the object of a collection activity arising from consumer debt. McCorriston v. L.W.T., Inc., 536 F.Supp.2d 1268, 1273 (M.D.Fla.2008). Second, the defendant must be a debt collector as defined by the FDCPA. Id. Third, the defendant must have engaged in an act or omission prohibited by the FDCPA. Id.;see also Fuller v. Becker & Poliakoff, P.A., 192 F.Supp.2d 1361, 1366 (M.D.Fla.2002); Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360 (S.D.Fla.2000).⁶ Here, the only issue is whether Equable engaged in an act or omission prohibited by the FDCPA and/or FCCPA.

The Court is underwhelmed by Ms. Erickson's two-page response to Equable's motion for summary judgment. She does not dispute that actual knowledge is an element necessary to prove violations of FDCPA § 1692c(a)(2) and FCCPA §§ 559.72(9) and (18). Rather, she blames the self-proclaimed inadequate response by Equable to her request for production of documents. She has made no effort to offer any evidence to raise a genuine dispute as to any material fact in this case. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers, 770 F.2d at 986. After almost a year of being on notice of Equable's position regarding the actual knowledge requirement, and after about seven months since the filing of Equable's renewed motion for summary judgment, Ms. Erickson has not filed one discovery motion with the Court. Now that the discovery period is closed, the Court finds itself antipathetic to Ms. Erickson's predicament at this stage. Thus, ...