Hicks v. America's Recovery Solutions, LLC

• Decision Date: 29 September 2011
• Docket Number: Case No. 1:09 CV 2650.
• Parties: Mary HICKS, et al., Plaintiffs v. AMERICA'S RECOVERY SOLUTIONS, LLC, Defendant.
• Court: U.S. District Court — Northern District of Ohio

816 F.Supp.2d 509

Mary HICKS, et al., Plaintiffs

v.AMERICA'S RECOVERY SOLUTIONS, LLC, Defendant.

Case No. 1:09 CV 2650.

United States District Court,N.D. Ohio,Eastern Division.

Sept. 29, 2011.

David M. Tannehill, Peter J. Cozmyk, Krohn & Moss, North Royalton, OH, for Plaintiffs.

Boyd W. Gentry, Christopher T. Herman, Jeffrey C. Turner, Surdyk, Dowd & Turner, Miamisburg, OH, for Defendant.

ORDER

SOLOMON OLIVER, JR., Chief Judge.

Currently pending in the above-captioned case is Defendant America's Recovery Solutions, LLC's (“ARS” or “Defendant”) Motion for Summary Judgment (ECF No. 11). For the reasons stated herein, the court denies in part and grants in part Defendant's Motion.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant regularly engages in the collection of outstanding accounts, and has placed phone calls in an attempt to collect an alleged debt from Plaintiff Albert Hicks, but not from his wife, Plaintiff Mary Hicks. (Ans. at ¶ 7, ECF No. 4.) Plaintiffs maintain that when Defendant calls, the caller ID often only shows “UNKNOWN” (Compl. at ¶ 12, ECF No. 1), and that Defendant often hangs up without leaving a message or allowing Plaintiffs to answer. ( Id. at ¶ 15.) Finally, they contend that Defendant did not disclose that it was a debt collector in its messages. ( Id. at ¶¶ 16, 17.)

Defendant's calls have resulted in five conversations with Plaintiffs. (Mary Hicks Aff., ECF No. 13–1, at ¶ 9.) While Plaintiffs have not alleged a specific number of phone calls from Defendant, they contend that they received “daily calls for two weeks, often twice a day” from late September until mid-October. ( Id. at ¶¶ 4, 16.) Defendant has provided a record indicating that 21 calls took place from August 6, 2009 until November 13, 2009. (Debtor Overview Report, ECF No. 11–1.) It also indicates that Defendant called twice in the same day just one time, and never more than that. ( Id.) However, Plaintiffs allege that they were often called more than once in a day. (Mary Hicks Aff., at ¶ 16, ECF No. 13–1.)

On November 12, 2009, Plaintiffs filed the instant suit against Defendant, alleging violations of the Federal Debt Collection Practices Act (“FDCPA”). (ECF No. 1.) On September 28, 2010, Defendant filed a Motion for Summary Judgment. (ECF No. 11.)

II. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(a) governs summary judgment motions and provides that:

A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law....

A party asserting there is no genuine dispute as to any material fact or that a fact is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 153, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943–44 (6th Cir.1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most cases the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252, 106 S.Ct. 2505. However, “[c]redibility judgments and weighing of the evidence are prohibited during the consideration of a motion for summary judgment.” Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir.1999).

The moving party has the burden of production to make a prima facie showing that it is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the burden of persuasion at trial would be on the non-moving party, then the moving party can meet its burden of production by either: (1) submitting “affirmative evidence that negates an essential element of the nonmoving party's claim”; or (2) demonstrating “to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” Id.

If the moving party meets its burden of production, then the non-moving party is under an affirmative duty to point out specific facts in the record which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D.Ohio 1992). The non-movant must show “more than a scintilla of evidence to overcome summary judgment”; it is not enough to show that there is slight doubt as to material facts. Id. Moreover, “the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir.1989) (citing Frito–Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988)).

III. LAW AND ANALYSIS

The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors” and “to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). It prohibits debt collectors from “engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. Further, it forbids “false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The FDCPA also restricts communication with third parties regarding a debt. 15 U.S.C. § 1692c(b).

Plaintiffs' Complaint initially alleged that Defendant's conduct violated § 1692d, § 1692e, and § 1692g(a) of the FDCPA. Defendant has moved for summary judgment on all counts. Plaintiffs oppose Defendant's Motion in regard to § 1692d and § 1692e, but voluntarily withdrew their § 1692g(a) claim.

A. False or Misleading Representations—15 U.S.C. § 1692e

Plaintiffs have alleged that Defendant violated § 1692e, specifically subsections (10) and (11). Plaintiffs contend that Defendant violated this section by calling and hanging up to avoid meaningful disclosure, and that it failed to provide that disclosure even when it did leave a message. Defendant argues that hanging up without leaving a message is not deceptive, and that no cases support such a claim. Additionally, it contends that voicemails are not communications under this section. The section prevents debt collectors from using

any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

...

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector ...

15 U.S.C. § 1692e. Courts apply an objective test of whether the ‘least sophisticated consumer’ would be misled by defendant's actions to determine whether a debt collector's practice is deceptive within the meaning of the FDCPA. Harvey v. Great Seneca Financial Corp., 453 F.3d 324, 331 (6th Cir.2006) (internal citation omitted).

1. Hanging up Without Leaving a Voicemail—§ 1692e(10)

Plaintiffs claim that by calling and hanging up without leaving a voicemail, Defendant has violated § 1692e(10) of the FDCPA. Defendant contends it is entitled to summary judgment on this claim because Plaintiffs have failed to provide any case law to suggest that this conduct is actionable. Further, Plaintiffs maintain that Defendant has not demonstrated how such conduct could mislead even the least sophisticated consumer.

Plaintiffs argue that Defendant has not provided any case law to suggest that the conduct in question is not actionable. They also contend that since Defendant has not deposed them to find out whether they felt deceived or misled, the issue is one for a jury. They allege that Defendant often called from an unknown phone number, and shielding its identity in such a manner could be construed as a deceptive attempt to reach the client.

Despite Plaintiffs' assertion that their feelings create a fact issue to be determined by a jury, the actions of a debt collector are judged by an objective standard. Therefore, Plaintiffs' feelings are not dispositive. Instead, this court must examine whether a debt collector's concealment of its identity, either through blocking its number or hanging up without leaving a voicemail, would mislead the least sophisticated consumer. Plaintiffs argue that Defendant's actions could do so, relying on Hosseinzadeh v. M.R.S. Assoc., Inc., 387 F.Supp.2d 1104 (C.D.Cal.2005). The Hosseinzadeh court found that voicemail messages are actionable under appropriate circumstances, holding that messages...