Lee v. Credit Mgmt., LP.

• Decision Date: 13 January 2012
• Docket Number: Civil Action No. G–10–538.
• Parties: Derek LEE v. CREDIT MANAGEMENT, LP.
• Court: U.S. District Court — Southern District of Texas

846 F.Supp.2d 716

Derek LEE

v.CREDIT MANAGEMENT, LP.

Civil Action No. G–10–538.

United States District Court,

S.D. Texas,

Galveston Division.

Jan. 13, 2012.

Dennis R. Kurz, Weisberg and Meyers LLC, Phoenix, AZ, Noah Daniel Radbil, Weisberg & Meyers, LLC, Houston, TX, for Derek Lee.

Robbie Luann Malone, Robbie Malone PLLC, Dallas, TX, for Credit Management, LP.

ORDER ADOPTING REPORT AND RECOMMENDATION

KENNETH M. HOYT, District Judge.

Before the Court is the December 27, 2011, Report and Recommendation from Magistrate Judge Froeschner which recommends that Plaintiff's Motion for Partial Summary Judgment be denied and Defendant Credit Management's Motion for Summary Judgment be granted in part and denied in part. (Dkt. No. 58). Both Plaintiff and Defendant filed timely objections to the Report and Recommendation. (Dkt. Nos. 64, 62).

As required by 28 U.S.C. § 636(b)(1)(C), this Court has given this matter de novo review and, after careful consideration of the Motions and the Objections of the parties to the Report and Recommendation, finds that the objections are without merit and that Judge Froeschner's findings and recommendations are well-grounded in law and fact.

Accordingly, it is hereby, ORDERED AND ADJUDGED that:

1) The Report and Recommendation of Magistrate Judge Froeschner is ACCEPTED and ADOPTED;

2) Plaintiff Derek Lee's Motion for Partial Summary Judgment (Dkt. No. 27) is DENIED; and

3) Defendant Credit Management's Motion for Summary Judgment (Dkt. No. 20) and Supplement (Dkt. No. 41), as deemed filed by the Court's Order (Dkt. No. 43), are GRANTED as to the following: (a) Lee's FDCPA claims under § 1692e(10) and § 1692d; and (b) Lee's DTPA claims; but DENIED as to the following claims: (a) Lee's FDCPA claims under § 1692a(2)(A) and § 1692(g)(a); (b) Lee's TDCPA claim; and (c) Lee's TCPA claim.

REPORT AND RECOMMENDATION

JOHN R. FROESCHNER, United States Magistrate Judge.

Before the Court, by referral from the Honorable Kenneth M. Hoyt, United States District Court Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), is Defendant Credit Management, LP's Motion for Summary Judgment. (Docket Entry (“Dkt.”) No. 20). Plaintiff Derek Lee filed a Response in Opposition to Defendant's Motion (Dkt. No. 25), to which Defendant filed a Reply. (Dkt. No. 31). Also before the Court is Plaintiff Derek Lee's Motion for Partial Summary Judgment (Dkt. No. 27), to which Defendant filed a Response (Dkt. No. 35), and Plaintiff filed a Reply. (Dkt. No. 36). Having carefully considered the competing motions, the responses and replies, the exhibits, and the applicable law, the Court submits this Report and Recommendation to the District Court.

I. INTRODUCTION

On November 18, 2010, Plaintiff Derek Lee (“Lee”) brought the instant suit against Defendant Credit Management, LP d/b/a The CMI Group (“CMI”) ¹ alleging that in its attempt to collect a debt, CMI violated the Fair Debt Collection Practices Act, the Texas Debt Collection Practice Act, the Deceptive Trade Practices Act of the Texas Business and Commerce Code, and the Telephone Consumer Protection Act. Lee seeks to recover monetary damages for the violations and an order or injunction preventing CMI from continuing the violations. Almost a year later, CMI filed its Motion for Summary Judgment seeking dismissal of Lee's action in its entirety. Shortly thereafter, Lee filed a Motion for Partial Summary Judgment.

II. FACTUAL BACKGROUND

The facts in this case are not complex. Lee, a customer of Comcast Cable, discontinued the services that Comcast provided to his home. At the time he discontinued services, Lee claims that he was led to believe that Comcast would pick-up its equipment, but this did not occur. Since Comcast did not receive its equipment back from Lee when services were discontinued, it automatically charged his account approximately $300–400 for the cost of the equipment. After receiving the bill for these charges Lee contacted Comcast and informed them of the misunderstanding regarding the return of the equipment. Following this call, the equipment was returned to Comcast, his account was credited, and Lee believed that his account was satisfied. However, thereafter, Lee was surprised to receive an email from Comcast informing him that he still owed them $32.00 for unreturned equipment namely, a modem. (Dkt. No. 25, Ex. B).

On July 10, 2010, Comcast referred the outstanding balance on Lee's account to CMI for collection. (Dkt. No. 35, Def. App. 0089 (Wilson Affidavit); Dkt. No. 26, Ex. 4). Lee's phone records reflect that on July 13, 2010, CMI attempted to contact him about the amount owed. (Dkt. No. 25, Ex. C). The next day a CMI representative attempted contact again and this time reached Lee by telephone—his cellular phone—and informed him that the company was seeking to collect the outstanding balance that he owed Comcast. The representative for CMI stated that the amount he owed was $386.21. During this call, Lee informed the representative that he was at work offshore ² and that he believed, based on an email that he had received from Comcast, that he only owed $32.00, not $386.21. (Dkt. No. 25, Ex. B; Dkt. No. 26, Ex. 1). The representative requested that Lee mail her the email, but because he worked offshore, Lee told her that he would be unable to do that.³ Lee agreed to send the document to CMI when he returned home the following week and the representative promised to note his account accordingly. (Dkt. No. 26, Ex. 1).

However, less than a week later and before he returned home, another CMI representative called Lee again. Lee disputed that he owed Comcast $386.21 and, once again, explained that he was still working offshore and, therefore, he was unable to mail anything to CMI. Despite Lee's explanations, he was contacted again by telephone on July 20, 2010, at which time he reiterated his situation.

Thereafter, CMI's representatives continued to call Lee and reached him on July 30 and again on August 5, 2010. (Dkt. No. 25, Ex. C). Lee once again disputed that he owed Comcast $386.21 and asked the representative to stop calling him. Before ending the call, Lee inquired if representatives from CMI were going to continue to harass him regarding this matter and he was told that they would continue to call until he paid the $386.21 that he owed Comcast.

Sometime after returning home, Lee returned the modem to Comcast and, dealing directly with Comcast, resolved his outstanding balance. (Dkt. No. 20 at Def. App. 0029) (Lee Deposition at 60:16–25). Thereafter, it appears that CMI may have placed another call to Lee on September 7, 2010. ( See Dkt. No. 27, Ex. B (Dialer Master Result History)).

Lee then retained an attorney. ( See Dkt. No. 48, Ex. C). On behalf of his client, the attorney sent CMI a letter dated September 28, 2010, disputing the debt and requesting that they cease all attempts to contact Lee. (Dkt. No. 48, Ex. C). On October 25, 2010, CMI sent Lee a letter through his attorney's office. In the letter, CMI informed Lee that he still owed Comcast $386.21; that it would continue to seek to recover this amount from him; that it had, as Lee suspected, reported this unpaid debt to the credit bureaus; and that it could not and/or would not honor his attorney's request to remove the information from the credit bureaus until the debt was paid in full. (Dkt. No. 26, Ex. 4).

Thereafter, Lee filed suit against CMI alleging that it violated both the Federal and Texas Fair Debt Collection Act, the Telephone Consumer Protection Act, and the Texas Deceptive Trade Practices Act. On August 5, 2011, CMI moved for summary judgment on all of Lee's claims (Dkt. No. 20), to which Lee responded (Dkt. No. 25) and CMI replied. (Dkt. No. 31). On September 9, 2011, Lee moved for partial summary judgment (Dkt. No. 27), to which CMI responded (Dkt. No. 35) and Lee replied. (Dkt. No. 36). The parties' cross motions for summary are now ripe for consideration.

III. SUMMARY JUDGMENT STANDARD

The Court analyzes the cross motions of the parties under the well-established summary judgment standard. Fed. R. Civ. P. 56(c); see generally, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Burge v. Parish of St. Tammany, 187 F.3d 452, 464 (5th Cir.1999); United States v. Arron, 954 F.2d 249, 251 (5th Cir.1992).

IV. DISCUSSIONA. Federal Fair Debt Collection Practices Act

In his Complaint, Lee alleges that CMI violated the Federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 (1982). In particular, Lee alleges that CMI violated 15 U.S.C. § 1692e and § 1692g(a) of the Act. (Dkt. No. 1). In addition, Lee maintains that Defendant violated § 1692d(2) and d(5) when it stated that it would continue to harass him. ( Id.). The parties have filed cross-motions for summary judgment concerning Lee's claims under the FDCPA. (Dkt. Nos. 20, 27).

The FDCPA was enacted “to eliminate abusive debt collection practices ... and ... to protect consumers against debt collection practice abuses.” 15 U.S.C. § 1692e. The protections of the Act extend only to those who are “consumers.” See id. Under the Act, a “consumer” means “any natural person obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3); see also, Baker v. G.C. Servs. Corp., 677 F.2d 775, 777 (9th Cir.1982) (concluding that the plaintiff had standing to sue under the statute because a debt was erroneously attributed to him). The term “debt”, however, is limited to obligations to pay money for transactions that are “primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). Thus, assuming an individual qualifies as a “consumer”, the FDCPA prohibits “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.

To establish a violation, a consumer...