Ferguson v. Credit Management Control, Inc.
| Decision Date | 23 March 2001 |
| Docket Number | No. 8:00-CV-01492-T-23C.,8:00-CV-01492-T-23C. |
| Citation | 140 F.Supp.2d 1293 |
| Parties | Robert FERGUSON, on behalf of himself and all others similarly situated Plaintiff, v. CREDIT MANAGEMENT CONTROL, INC. Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Joseph W. Bonie, Law Office of Joseph W. Bonie, St. Petersburg, FL, for Robert Ferguson, on behalf of himself and all others similarly situated, plaintiffs.
Donald R. Kirk, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, FL, for Credit Management Control, Inc., defendant.
Before the court are Motion and Memorandum of Law by Credit Management Control for Summary Judgment (Dkts.7, 8); Motion and Memorandum of Law by Robert Ferguson in Opposition to Defendant's Motion for Summary Judgment and for Partial Summary Judgment (Dkt.14); and Response by Credit Management Control in Opposition to Plaintiff's Motion for Partial Summary Judgment (Dkt.23).1 Oral argument has been held.
This action commenced on July 24, 2000, with the filing of a "Class Action Complaint" against the defendant, Credit Management Control, Inc. ("CMC"). The complaint was filed pursuant to 15 U.S.C. § 1692, et seq., the Fair Debt Collection Practices Act ("FDCPA"), and Fla. Stat. § 559.55, et seq., the Florida Consumer Collection Practices Act ("FCCPA"). It asserts the following two (2) causes of action: a violation of the FDCPA for using false or deceptive representation in attempting to collect a debt without a proper license in Florida (Count I); and violations of the FCCPA for mailing "dunning letters"2 without being licensed as a debt collector pursuant to Fla. Stat. §§ 559.72 and 559.565 (Count II).
On October 26, 2000, defendant filed a motion for summary judgment before any discovery had taken place.3 Plaintiff then filed a motion in opposition to defendant's motion for summary judgment and a motion for partial summary judgment. Defendant submitted its response on January 12, 2001.
Summary judgment should be entered when there is no genuine issue regarding any material fact when all the evidence is viewed in the light most favorable to the non-moving party. See Rule 56, Fed. R.Civ.P.; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 609 (11th Cir.1991). A genuine issue of material fact exists when there is sufficient evidence in favor of the non-moving party for a reasonable jury to return a verdict in its favor. See Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (citations omitted).
The following facts are undisputed in this case:
(1) Plaintiff, Robert Ferguson ("Ferguson"), is a "consumer" as defined in 15 U.S.C. § 1692a(3) and Fla. Stat. § 559.55(2). (See Dkt. 14 at 2).
(2) Defendant, Credit Management Control, Inc. ("CMC"), is a collection agency governed by the FDCPA and the FCCPA. (See Dkt. 8 at 2).
(3) The obligation allegedly due Aerial Operating Company from plaintiff is a "debt" or "consumer debt" pursuant to the FDCPA and FCCPA. (See Dkt. 14 at 2).
(4) On or about June 27, 2000, CMC sent Ferguson a letter attached as Exhibit A to plaintiff's complaint . This one (1) page letter states, in pertinent part and not to scale:
[CMC street address] [CMC letterhead]
June 27, 2000 [CMC mailing address]
[Ferguson's address] Account No.: C74623
Total Due: $31.25
* * * Detach Upper Portion And Return with Payment * * *
Creditor Regarding This Debt
Amount
Aerial Operating
Co-Tam Cellular Charges $31.25
Total Balance Due: $31.25
* * * Request For Payment In Full * * *
Your creditor has turned your account to our collection agency for payment. Please take care of this bill by choosing one of the following options.
• Mail payment in full by check or money order to: [CMC mailing address]
• Come to our office to pay your account at: [CMC office address]
• Contact our office at (262) 633-9650 or (800) 501-1025 to make arrangements to pay this account.
This communication is from a debt collector.
This is an attempt to collect a debt. Any information will be used for that purpose.
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume the debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.
(5) CMC was not registered with the Florida Department of Banking when it mailed its collection letter dated June 27, 2000 to Ferguson. (See Dkt. 23 at 1).
(6) Prior to sending the letter to Ferguson, CMC researched the State of Florida's requirements for conducting business as a consumer collection agency.4 . This research included a review of the ACA "Summary of State Consumer Collection Requirements,"5 and the State of Florida's Department of State, Division of Licensing internet website regarding its licensing requirements. (See id.). CMC registered with the Florida Department of State and received confirmation of registration as of October 21, 1999. (See id.). CMC mistakenly believed it was exempt from registering with the Florida Department of Banking because the Florida Department of State, Division of Licensing's internet website listed specific exemptions from Florida's licensing requirements.6 (See id.).
(7) CMC's stated purpose for mailing the letter was "an attempt to collect a debt." (See Dkt. 23 at 3).
The crux of the parties' dispute is the application of §§ 1692e(5) and 1692e(10) of the FDCPA to the facts at hand. As there are no genuine issues of material facts in dispute, summary judgment is appropriate in this matter. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 609 (11th Cir. 1991); but see Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1176 (11th Cir.1985) ().
The parties do not dispute the material facts of this case; however, they dispute the conclusions to be drawn therefrom. Plaintiff argues that CMC violated Florida law by attempting to collect a debt without being properly licensed as a "debt collector" in Florida. Plaintiff also argues that CMC's alleged violation of state law constitutes a per se violation of the FDCPA, 15 U.S.C. § 1692e(5). Additionally, plaintiff argues that CMC violated 15 U.S.C. § 1692e(10) by falsely representing that it was a debt collector, when it was not registered with the Florida Department of Banking.
Defendant, on the other hand, argues that it did not violate the FCCPA by mailing a collection letter while it was not registered with the Florida Department of Banking.7 Moreover, defendant argues that even if it did violate the Florida statute, it did not violate the FDCPA by merely failing to register with the Florida Department of Banking before it mailed the letter.
Congress enacted the FDCPA to:
eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.
15 U.S.C. § 1692(e). The FDCPA was "not intended to shield ... consumers from the embarrassment and inconvenience which are the natural consequences of debt collection." Dalton v. FMA Enters., Inc., 953 F.Supp. 1525, 1531 (M.D.Fla.1997) (citation omitted).
The FDCPA is a strict liability statute. See Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1361-62 (S.D.Fla.2000); see also Russell v. Equifax, 74 F.3d 30, 33-34 (2nd Cir.1996). A single violation of § 1692e is sufficient to establish civil liability. See 15 U.S.C. § 1692k(a); see also Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238 (5th Cir. 1997).
Under the FDCPA, a debt collector may not "threat[en] to take any action that cannot legally be taken or that is not intended to be taken." 15 U.S.C. § 1692e(5). Moreover, a debt collector is prohibited from using "any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." 15 U.S.C. § 1692e(10).
Two different standards have developed for analyzing claims under §§ 1692e(5) and 1692e(10) of the FDCPA: the "least sophisticated debtor" standard or the "unsophisticated consumer" standard. Compare Jeter, 760 F.2d at 1175-76 (11th Cir.1985); Wade v. Regional Credit Ass'n, 87 F.3d 1098, 1100 (9th Cir.1996); Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1226-27 (9th Cir.1988); Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1098-1102 (D.Or.2000); Marchant v. U.S. Collections W., Inc., 12 F.Supp.2d 1001, 1006 (D.Ariz.1998); with United States v. National Fin. Servs., Inc., 820 F.Supp. 228, 232 (D.Md.1993), aff'd, 98 F.3d 131 (4th Cir.1996) with Nance v. Friedman, 2000 WL 1700156, *2 (N.D.Ill.2000); Veillard v. Mednick, 24 F.Supp.2d 863, 866 (N.D.Ill. 1998); and Withers v. H.R. Eveland, 988 F.Supp. 942, 946 (E.D.Va.1997). Both standards are quite similar. The Eleventh Circuit follows the "least sophisticated debtor" standard, which analyzes whether a hypothetical least sophisticated consumer would be deceived or misled by the debt collector's practices. See Jeter, 760 F.2d at 1175 (citation omitted).8
The Eleventh Circuit in Jeter limited the...
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