Litt v. Portfolio Recovery Assocs. LLC

• Decision Date: 20 November 2015
• Docket Number: Case No. 13–12462
• Citation: 146 F.Supp.3d 857
• Court: U.S. District Court — Eastern District of Michigan
• Parties: Michael Litt, Karol Litt & Marvin Litt, Plaintiffs, v. Portfolio Recovery Associates LLC & John Doe, Defendants.

146 F.Supp.3d 857

Michael Litt, Karol Litt & Marvin Litt, Plaintiffs,
v.
Portfolio Recovery Associates LLC & John Doe, Defendants.

Case No. 13–12462

United States District Court, E.D. Michigan, Southern Division.

Signed November 20, 2015

146 F.Supp.3d 860

Rex C. Anderson, Davison, MI, for Plaintiffs.

Avanti D. Bakane, David M. Schultz, Hinshaw & Culbertson LLP, Chicago, IL, Steven A. Siman, Troy, MI, for Defendants.

OPINION AND ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 105) AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 110)

PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

In the claims that remain in this action, Plaintiff Michael Litt alleges that Defendant Portfolio Recovery Associates LLC (“PRA”) contacted his parents, Marvin and Karol Litt, more than two hundred times regarding a debt owed by Michael Litt, in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.¹ Before the Court are the parties' cross-motions for summary judgment. The Court held a hearing on August 6, 2015. Following the hearing, the parties indicated an intent to attempt to resolve the issues without a ruling from the Court on their motions. The parties have informed the Court that efforts at resolution have been unsuccessful. Accordingly, for the reasons that follow, the Court will GRANT IN PART AND DENY IN PART Plaintiff's Motion for Partial Summary Judgment (ECF No. 105) and will GRANT IN PART AND DENY IN PART Defendant's Motion for Summary Judgment (ECF No. 110).

INTRODUCTION

Plaintiff Michael Litt claims that PRA violated the FDCPA by placing more than 200 phone calls to his parents, allegedly in an effort to collect debts owed by Michael Litt. PRA admits having placed the calls to Litt's parents' phone but responds that: (1) Michael Litt's claims are barred by the statute of limitations; (2) any claims based on calls to Michael Litt's parents were

146 F.Supp.3d 861

resolved by his parents' acceptance of PRA's Offer of Judgment; (3) PRA was calling Marvin and Karol Litt under the reasonable belief that Michael Litt's parents' phone number was a good number at which Michael Litt could be reached; and (4) as to calls that were placed after PRA was made aware that the parents' phone was a “wrong number” for Michael Litt, PRA is entitled to the FDCPA's bona fide error defense because the error was unintentional and PRA maintained procedures reasonably adopted to avoid such errors.

I. BACKGROUND

Plaintiff Michael Litt has abandoned several claims and his parents' claims have been resolved. Remaining in this action are Michael Litt's claims related to the 200-plus calls that PRA admittedly placed to his parents' phone number. His remaining claims are brought: (1) under §§ 1692b(1)-(3) and 1692c(b), claiming that PRA violated those sections by placing calls to his parents without his consent and for disclosing to his parents that he owed a debt; and (2) under § 1692d—a catchall provision—claiming that PRA placed these calls with the intention to humiliate and embarrass him.²

The following facts, largely supported by PRA's own call logs and the testimony of PRA's designated 30(b)(6) representative, Tara Privette, are undisputed. PRA purchased from the original creditors three debts owed by Michael Litt: 1) a GE Capital account (for purchases from Meijer), 2) a Four Score Resource account (for purchases from Kay Jewelers) and 3) a Citibank account (for purchases from Good Year). ECF No. 105, Pl.'s Mot. 4; Pl.'s Mot. Ex. 1, July 10, 2014 Deposition of Tara Privette 43. In an effort to collect on one or more of the above debts, PRA made the following calls to Michael Litt's home phone, XXX-XXX-1801, none of which was answered by Michael Litt:

2011	2012	2013
May: 7	July: 3	January: 23
June: 8	August: 24	February: 8
	September: 22
	October: 20
	November: 2
	December: 19

ECF No. 109, Def.'s Mot. Ex. 4, PRA Call Log, Bates Stamp PRA100-103 (showing calls placed and a duration of 0 seconds for each call); Privette Dep. 204-205; Def.'s Mot. Ex. 6, Oct. 31, 2014 Declaration of Tara Privette, ¶¶ 12-16.

In an effort to collect on one or more of the three debts, PRA made the following calls to Michael Litts' parents, XXX-XXX-1078:

2010	2011	2012	2013
July: 3	January: 8	July: 3	January: 21
August: 4	February: 9	August: 24	February: 8
September: 4	March: 9	September: 19
October: 4	April: 11	October: 22
November: 8	May: 14	November: 3
November: 8	June: 11	December: 19

146 F.Supp.3d 862

ECF No. 109, Def.'s Mot. Ex. 4, PRA Call Log, Bates Stamp PRA104-109; Privette Dep. 204-205; Def.'s Mot. Ex. 6, Privette Decl. ¶ 17.

Of the 213 calls placed to Michael Litt's parents, 5 calls were answered. Def.'s Mot. Ex. 4, PRA Call Log, PRA104-109 (showing call duration of 0 seconds for all but five calls placed); Privette Decl. ¶ 19. Those five calls were placed on the following dates, for the following duration and their content is noted in PRA Call Log files as follows:

August 25, 2010 (99 second call): “Left msg at XXX-XXX-1078 [HOME] N1 IS OUT OF STATE.. NO ALT #...N1 IS CALIFORNIA...LM” (Def.'s Mot. Ex. 4, PRA Call Log, PRA66, PRA104.) Ms. Privette interprets this notation in the PRA Call Log as follows: “[A]n individual answered the phone, stated that Michael Litt was in California at the time, and when asked for an alternate phone number for the plaintiff, stated that there was no alternate number to reach him at.” (ECF No. 109, Ex. 6, Privette Decl. ¶ 20). Ms. Privette further testified that this indicated to her “that at the time they called, he was out-of-state; and that he was in California; and that it was an appropriate number to leave a message for him at...and there was no alternate number.” (Privette Dep. 126; 211-12.);

November 16, 2010 (25 second call): “DIALED RELATION 1 HOME: XXX-XXX-1078, N1'S FATHER SD N1 NOT IN” (Def.'s Mot. Ex. 4, PRA Call Log, PRA65, PRA104). Ms. Privette interprets this notation in the PRA Call Log as follows: “[T]he Plaintiff's father answered and stated that he was not in.” (Privette Decl. ¶ 21.) Ms. Privette further testified that this indicated to her that the caller dialed the number that was listed as the home number at that time and that Plaintiff's father told the caller that Michael Litt was not in. (Privette Dep. 127, 213.)

December 1, 2010 (40 second call): “MOP SAID N1 NOT THERE AND HE IS N1 FATHER NO OTHER NO#NML” (Def.'s Mot. Ex. 4, PRA Call Log, PRA65, PRA 104). Ms. Privette interprets this notation in the PRA Call Log as follows: “[A] male answered the phone, stated he was the Plaintiff's father, and when asked if there was another phone number to reach the plaintiff at, stated that there was not.” (Privette Decl. ¶ 22.) Ms. Privette further testified that this indicated to her that “MOP,” man on the phone, said Michael Litt was not there and that there is no better number to reach him at. (Privette Dep. 129, 213.)

January 6, 2011 (9 second call): “No Msg at XXX-XXX-1078 [HOME] PU...HU” (Def.'s Mot. Ex. 4, PRA

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