Irvine v. I.C. Sys., Inc.

• Decision Date: 31 March 2016
• Docket Number: Civil Action No. 14-cv-01329-PAB-KMT
• Citation: 176 F.Supp.3d 1054
• Parties: Leona Irvine, Plaintiff, v. I.C. System, Inc., a Minnesota corporation, Defendant.
• Court: U.S. District Court — District of Colorado

176 F.Supp.3d 1054

Leona Irvine, Plaintiff,

v.I.C. System, Inc., a Minnesota corporation, Defendant.

Civil Action No. 14-cv-01329-PAB-KMT

United States District Court, D. Colorado.

Signed March 31, 2016

David Michael Larson, David M. Larson, Attorney at Law, Englewood, CO, for Plaintiff.

Jamie N. Cotter, Philip Michael Quatrochi, Spencer Fane Britt & Browne, LLP, Denver, CO, Joshua Caine Dickinson, Spencer Fane Britt & Browne, LLP, Omaha, NE, for Defendant.

ORDER

PHILIP A. BRIMMER, United States District Judge

This matter is before the Court on the Motion for Summary Judgment [Docket No. 36] and Second Motion for Summary Judgment [Docket No. 59] filed by defendant I.C. System, Inc. (“ICS”), and plaintiff's Motion for Summary Judgment [Docket No. 60]. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND¹

This case arises out of defendant's alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. On or about March 31, 2011, plaintiff Leona Irvine incurred a debt (the “Account”) to Banfield Pet Hospital. Docket No. 36-1 at 2, Statement of Undisputed Material Facts (“SUMF”) 1; Docket No. 48 at 2, ¶ 1. Plaintiff defaulted on the Account by failing to make timely payments. Id ., SUMF 3. On November 28, 2011, the Account was transferred to ICS for collection. Docket No. 36-1 at 3, SUMF 2.

On March 13, 2014, plaintiff called ICS. Docket No. 36-1 at 3, SUMF 5. A transcription of the March 13, 2014 phone call states, in relevant part:

[ICS representative]: [O]k it looks like you have a balance of $630.51 with Banfield Pet Hospital.

* * *

[Plaintiff]: And how did it get to that?

[ICS representative]: Well there was a balance of $536.61 there was a nonpayment adjustment of $93.90 and then there was a collection charge. Yes the collection charge was $93.90. It was originally $536.61 then they added a collection charge.

[Plaintiff]: What date is this for?

[ICS representative]: This was for March 31, 2011.

[Plaintiff]: 2011?

[ICS representative]: Yes, will you be paying that in full today Leona?

[Plaintiff]: Well I don't believe it's that. I don't owe that balance. I don't owe that much.

[ICS representative]: Ok how much can you pay?

[Plaintiff]: Well what can we do to settle this?

* * *

[ICS representative]: [T]he lowest I can go is $315.25.

[Plaintiff]: I disagree with that balance it's just too much and I want to get this settled for that.²

[ICS representative]: Ok that's the lowest I can go. It's the lowest Banfield Pet Hospital allows me to go.

[Plaintiff]: Well that's too much. I can pay maybe $10 or $15 dollars a month.

* * *

[ICS representative]: Ok, and then when were you going to have these payments posted by? So I can set your date on here?

[Plaintiff]: Um...I don't know. Let me think here. Only thing is this is messing up my credit report because it's on here.

[ICS representative]: I understand.

[Plaintiff]: So what do I have to do to get it off my credit report?

[ICS representative]: Well the only. I mean if you paid in full, which you said you won't be able to, but if you paid in full we will report it on Monday as paid in full zero balance then your account would have to show as paid in full for 30 days then our system will automatically request this to be deleted after showing it is paid in full for 30 days.

[Plaintiff]: So I have to pay it off to get it off my credit report?

[ICS representative]: No, but each payment that's made towards the account ma'am will be reported as a payment so say you pay $15 today that payment will be reported as a payment and once its paid off it will be reported as paid in full zero balance. And then it will have to show on your account as paid in full for 30 days and then our system will automatically request this to be deleted.

[Plaintiff]: So it's going to stay on my credit report until it's paid? [ICS representative]: Yes correct.

[Plaintiff]: So I need to pay it?

[ICS representative]: If you want it off your credit report sooner yes. Instead of doing payment arrangements for $15 a month, yes. Correct.

* * *

[ICS representative]: Ok ma'am well do you mind if we update the address?

[Plaintiff]: [Provides current address]

[ICS representative]: Ok Thank you.

Docket No. 36-3 at 1-8.

Before the March 13, 2014 phone call from plaintiff, ICS had reported the Account to Experian and TransUnion, providing information on the balance of the Account and plaintiff's address. Docket No. 36-1 at 4, SUMF 11; Docket No. 48-2 at 41 (Bacon Rule 30(b)(6) Depo., 133:4-15).

On March 16, 2014, ICS provided plaintiff's new address to Experian and TransUnion. Docket No. 36-1 at 4, SUMF 12. During the March 16, 2014 communication, ICS did not identify the debt as disputed. Docket No. 60 at 4, ¶ 8.

On March 18, 2014, plaintiff made a payment towards the Account in the amount of $15.00. Docket No. 36-1 at 4, SUMF 14. On March 23, 2014, defendant updated the balance information for the Account with Experian and TransUnion to reflect plaintiff's March 18 payment. Id ., SUMF 16. During the March 23, 2014 communication, ICS did not identify the debt as disputed. Docket No. 60 at 4, SUMF 10.

On March 16 and 23, 2014, ICS was a person who regularly and in the ordinary course of business furnished information to consumer reporting agencies about ICS's transactions or experiences with consumers. Docket No. 36-1 at 4, SUMFs 13, 17.

On April 1, 2014, ICS communicated information regarding the Account to Banfield Pet Hospital via email, including plaintiff's name, the debtor reference number, the amount paid to the defendant, the amount paid to Banfield Pet Hospital, the fee due to the defendant, and the amount due to Banfield Pet Hospital. Docket No. 60 at 5, SUMF 11; Docket No. 59 at 2, SUMF 11. Defendant did not indicate that the amount was disputed. Docket No. 60 at 5, SUMF 11.

On May 12, 2014, plaintiff filed her complaint alleging that defendant's March communications violated §§ 1692e, e(2)(A), e(8), e(10), and 1692f of the FDCPA by making false, misleading, or deceptive statements and for making communication regarding the Account without also identifying the Account as a disputed debt. Docket No. 1 at 9-10.

On May 18, 2014, ICS updated plaintiff's account information with Experian and TransUnion to show that the Account was “deleted.” See Docket No. 36-1 at 5, SUMF 21.³

On October 7, 2015, plaintiff filed an amended complaint in which she added allegations regarding defendant's April 1, 2014 communication to Banfield Pet Hospital, Docket No. 56 at 9-11, ¶¶ 63-75, and defendant's May 18, 2014 communication to Experian and TransUnion. Id . at 8, ¶¶ 55-58. Plaintiff's amended complaint contains one claim alleging violations of §§ 1692e, e(2)(A), e(8) and e(10) of the FDCPA. Id . at 14, ¶ 93.

On June 29, 2015, defendant filed its first motion for summary judgment. Docket No. 36 at 1. Defendant's first summary judgment motion addresses plaintiff's claims relating to the March communications and argues that (1) its statement to plaintiff that the debt would remain on her credit report was not false pursuant to 15 U.S.C. §§ 1692e, e(2)(A), e(8) and e(10) because there is no requirement to delete a debt from a credit report solely because it is disputed, Docket No. 36-1 at 7-8; (2) the March 16, 2014 and March 23, 2014 communications were not communications made in connection with collecting a debt under §§ 1692e or 1692f. Id . at 8-11.

On November 9, 2015, following the filing of plaintiff's amended complaint, defendant filed its second motion for summary judgment. Docket No. 59. Defendant argues that defendant's April 1, 2014 communication to Banfield Pet Hospital did not constitute debt collection activity under 15 U.S.C. § 1692e. Id . at 4.

On November 9, 2015, plaintiff filed her summary judgment motion. Plaintiff argues that the undisputed facts show: (1) the ICS representative made a false statement during the March 13, 2014 phone call; (2) ICS made a communication in connection with the collection of a debt on March 16, 2014 without identifying the debt as disputed; (3) ICS made a communication in connection with the collection of a debt on March 23, 2014 without identifying the debt as disputed; (4) ICS made a communication in connection with the collection of a debt on April 1, 2014 without identifying the account as disputed; and (5) ICS made a communication in connection with the collection of a debt on May 18, 2014 without identifying the account as disputed. Docket No. 60 at 1-2.

II. STANDARD OF REVIEW

Summary judgment is warranted under Federal Rule of Civil Procedure 56 when 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.” Fed. R. Civ. P. 56(a) ; see Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc ., 259 F.3d 1226, 1231–32 (10th Cir.2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver , 423 F.3d 1192, 1198 (10th Cir.2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee , 119 F.3d 837, 839 (10th Cir.1997). Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp. , 252 F.3d 1111, 1115 (10th Cir.2001) (quoting Adler v. Wal – Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir.1998) (internal quotation marks omitted)). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of...