McKinley v. Everest Receivable Servs.
| Decision Date | 14 February 2022 |
| Docket Number | 19-CV-1289S |
| Court | U.S. District Court — Western District of New York |
| Parties | JOHN AND JENA MCKINLEY, Plaintiffs, v. EVEREST RECEIVABLE SERVICES, INC., et al. Defendants. |
DECISION AND ORDER
In this Fair Debt Collection Practices Act[1] case, Plaintiffs sued for two alleged debt collection calls made by Defendant Everest Receivable Services, Inc. (“Everest” or “Defendant”)[2]. Defendant's representatives twice called Lois McKinley, John's mother, purportedly to confirm John's current address.
Before this Court is both sides' respective Motions for Summary Judgment (Docket Nos. 15 (Defendant Everest), 16 (Plaintiffs)). Defendant Everest (Docket No. 15) seeks judgment in its favor on judicial estoppel grounds and dismissal of Plaintiffs John and Jena McKinley's FDCPA claims on their merits. Plaintiffs move for summary judgment (Docket No. 16) granting their FDCPA claims.
For the reasons stated below, Everest's Motion for Summary Judgment (Docket No. 15) is denied on the grounds of judicial estoppel but granted to dismiss Jena McKinley's FDCPA claims on standing grounds and John McKinley's claims on their merits. Plaintiffs' opposing Motion for Summary Judgment (Docket No. 16) is denied. Their Motion for leave to amend the Complaint sought in their response is granted. This case is dismissed.
Plaintiffs John McKinley (“John”) and Jena McKinley (“Jena”) generally admit the facts alleged by Everest in its Motion for Summary Judgment and vice versa (Docket No. 19, Def. Responding Statement; cf. Docket No. 16, Pl. Statement). This Court will cite to the accepted facts, involving Plaintiffs' filing for bankruptcy and Everest's contacts alleged in Plaintiffs' FDCPA action. Where pertinent, this Court also will note disputed facts.
Plaintiffs reside in Rosemount, Minnesota . Defendant Everest is a New York debt collector .
On or about July 22, 2017, John incurred a debt with Republic Bank, owing the bank $695.80 (Docket No. 15, Def. Statement ¶¶ 33-35).
On January 28, 2019, Plaintiffs filed for bankruptcy in the United States Bankruptcy Court for the District of Minnesota, In re McKinley, No. 19-30258 . They listed John's debt with Republic Bank in the bankruptcy Petition (Docket No. 15, Def. Statement ¶ 37). In March 2019, the McKinleys modified their Chapter 13 plan (Docket No. 15, Def. Statement ¶ 2), In re McKinley, No. 19-30258 (Docket No. 18) (Bankr. D. Minn.). On April 25, 2019, the Bankruptcy Court confirmed the modified Chapter 13 plan (Docket No. 15, Def. Statement ¶ 3).
Meanwhile, Republic Bank placed John's debt with Everest for servicing on or about May 3, 2019 (Docket No. 19, Def. Responding Statement ¶ 17). The parties agree that Everest never attempted to collect a debt owed by Jena . Only John owed the Republic Bank debt and Everest never called John about that debt (Docket No. 15, Def. Statement ¶¶ 41, 44).
On May 28, 2019, an Everest's representative named Leeanne called Lois McKinley, John's mother[3], and asked for John's address . Lois McKinley's call from Leeanne went as follows :
Everest claims its representative called Lois merely to confirm John's location (Docket No. 15, Def. Statement ¶ 11).
Plaintiffs counter that Everest here attempted to leave a message with Lois. They argue that although Everest already had John's correct mailing address when Leeanne called.
On June 24, 2019, another Everest representative, Chris Guth, called Lois McKinley to confirm John's address . This call went as follows:
[call ends].
Everest denies attempting to collect John's debt when it contacted Lois (Docket No. 19, Def. Responding Statement ¶ 6). Everest called Lois only to confirm John's address (id. ¶¶ 2, 6). Plaintiffs claim that Everest already had confirmed McKinleys' address before calling Lois McKinley .
Everest argues that there is no evidence that it had prior confirmation of that address before calling Lois McKinley and it only confirmed the address when Jena called Everest (Docket No. 19, Def. Responding Statement ¶¶ 7, 9). Everest produced its Chief Compliance Officer, David Maczka, who stated that Jena's June 24, 2019, conversation confirmed John's mailing address for Everest (Docket No. 22, Maczka Decl. ¶¶ 5-6).
After Guth's June 24th call, Lois McKinley called Jena reporting Everest's calls and relaying Everest's telephone No. to Jena . Later that day Jena called that number, learned that the caller was from Everest and that Everest was attempting to collect a debt allegedly owed by John .
The parties also dispute whether Jena suffered from anxiety due to the two telephone calls to Lois, Lois' conversation with Jena, and Jena's follow up call with Everest . She claims that it was “bothersome” and “not called for” for Everest to call and then for Lois to ask Jena detailed questions about her family finances. Jena also felt embarrassed and frustrated by Everest's conversations with Lois. Jena later testified that she suffered humiliation from Lois knowing that a debt collector was attempting to collect a debt from the McKinleys (Docket No. 15, Def. Statement ¶ 52).
Everest denied that Jena suffered any actual damage from the calls to Lois (Docket No. 15, Def. Statement ¶ 51).
Plaintiffs filed their Complaint here, on September 20, 2019 (Docket No. 1). There, they allege several violations of the FDCPA (id.). First, they claim that Everest violated 15 U.S.C. § 1692b(1) that Everest contacted third parties for purposes other than to confirm or correct location information (id. ¶ 23). Second, Plaintiffs allege that Everest violated § 1692d by engaging in behavior the natural consequences of which was harassment, oppression, or abuse in connection with collection of a debt (id. ¶ 24). Third, Plaintiffs claim that Everest violated § 1692e for its use of false, deceptive, or misleading representation or means in connection with the collection of a debt (id. ¶ 25). Fourth, they assert that Everest also violated § 1692e(10) that Everest used false and deceptive means to collect a debt (id. ¶ 26). Fifth, Plaintiffs allege that Everest violated § 1692f that Everest used unfair and unconscionable means to collect a debt (id. ¶ 27). Plaintiffs seek statutory damages of $1, 000, pursuant to 15 U.S.C. § 1692k(a)(2)(A) (id., WHEREFORE Cl. ¶ 2), recovery of their costs including attorneys' fees (id., ¶ 3), and punitive damages (id. ¶ 4).
Plaintiffs did not allege violation of 15 U.S.C. § 1692c for a debt collector contacting anyone other than the consumer in connection with debt collection.
Everest answered the Complaint (Docket No. 4). To date, there is no identification or appearances by John Doe Defendants 1-10, the individual collectors employed by Everest .
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