Rivera v. Amalgamated Debt Collection Services

• Decision Date: 16 October 2006
• Docket Number: No. 05-20176-CIV.,05-20176-CIV.
• Citation: 462 F.Supp.2d 1223
• Parties: Felicia E. RIVERA, a/k/a F.E. Rivera, Individually and on behalf of all others similarly situated, Plaintiff, v. AMALGAMATED DEBT COLLECTION SERVICES, INC. d/b/a Credit Data Systems, Defendant.
• Court: U.S. District Court — Southern District of Florida

462 F.Supp.2d 1223

Felicia E. RIVERA, a/k/a F.E. Rivera, Individually and on behalf of all others similarly situated, Plaintiff, v. AMALGAMATED DEBT COLLECTION SERVICES, INC. d/b/a Credit Data Systems, Defendant.

No. 05-20176-CIV.

United States District Court, S.D. Florida.

October 16, 2006.

COPYRIGHT MATERIAL OMITTED

Alejandro Perez, Alexander N. Kapetan, Jr., Marc Aaron Wites, Wites & Kapetan, Lighthouse Point, FL, for Plaintiff.

Eduardo None Cosio, Julie Bork Glassman, Eduardo Casio, P.A., Jose Alfredo De Armas, Alvarez Armas & Borron, Coral Gables, FL, for Defendant.

ORDER ON PLAINTIFF'S MOTION FOE PARTIAL SUMMARY JUDGMENT

TORRES, United States Magistrate Judge.

This matter comes before the Court upon Plaintiffs Motion for Partial Summary Judgment as to Liability on Plaintiffs Fair Debt Collection Practices Act Claim [D.E. 65]. The motion is before the undersigned for final disposition pursuant to the Order of Reference entered by the Honorable Joan A. Lenard on August 12, 2005 [D.E. 24] and the parties' consent thereto [D.E. 23], as well as Admin. Order 2006-18.

Following complete briefing, the Court held a hearing on the matter on September 25, 2005. Plaintiff filed on September 29, 2006, a supplemental memorandum of law that addressed certain questions raised at that hearing. Having considered the papers filed in this case and argument of counsel, and the entire record, the Court grants in part Plaintiffs motion for partial summary judgment for the reasons that follow.

I. FACTUAL BACKGROUND

Plaintiff is a "consumer" and Defendant is a "debt collector" as defined by the Fair Debt Collection Practices Act ("FDCPA"), codified at 15 U.S.C. § 1692 et seq. Pl.'s Mot. Sum. Judg. at 2. Defendant was retained to collect a purported $39.32 debt from Plaintiff. On May 28, 2004, Defendant sent Plaintiff a form notice letter labeled "Second Notice" and dated May 22, 2004. The letter sought to collect a debt allegedly owed by Plaintiff to Supra Communications for $39.32. Defendant also delivered another notice, which is identically worded to the Second Notice, but is titled "First Notice." Id. Both notices include the following language:

Therefore, unless this matter can be resolved within 30 days of the above date, it will be necessary to consider the institution of legal procedures against you.

. . . . .

If you dispute the debt in whole or in part within (30) days of the date set forth above, we will mail verification of the debt to you.

Id at 3.

The notices also state that in the "event of suit, you may be held liable for money damages plus interest, court costs and attorney's fees." Id. It is undisputed that Defendant has never sued a debtor or sought money damages, interest, court costs or attorney's fees from anyone to whom it has sent either of these notices. The notices also state that judgments obtained against debtors will be recorded in their county of residence and that "further action, including depositions and execution by the Sheriff, may be required." Id. It is also undisputed that Defendant has never recorded a debt, deposed a debtor or had a judgment executed by the Sheriff. Id.

Both of these notices are "communications" as defined by 15 U.S.C. § 1692a(2). Id. at 4. Defendant sent another debt collection letter to Plaintiff titled "Action Notice" on July 23, 2004. Id. The action informed Plaintiff that her failure to remit payment within 15 days would result in the "nationwide reporting" of her debt as a "bad debt." Id.

On January 21, 2005, Plaintiff filed a class action against Defendant alleging that Defendant was mailing unlawful debt collection letters to Plaintiff in violation of the FDCPA, the Florida Consumer Collection Practices Act ("FDCPA"), codified at Fla. Stat. § 559.55 et seq., and the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), codified at Fla. Stat. § 501.201 et seq. The Plaintiff also included an unjust enrichment claim against Defendant. That equitable claim was ultimately voluntarily dismissed, leaving the statutory claims at issue. Defendant had originally filed a motion to dismiss those claims, but the District Judge denied that motion on November 23, 2005 [D.E. 42].

Approximately one year later, Plaintiff filed the pending motion for partial summary judgment on her FDCPA claims, arguing that she was entitled to summary judgment on liability for several violations of the statute. Defendant opposed the motion, arguing that issues of fact remained for trial, and re-arguing some of the legal defenses originally raised in the motion to dismiss, most predominate of which was the argument that Plaintiff lacked standing to raise these claims.

II. ANALYSIS

A. Standard of Review

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Miller v. Harget, 458 F.3d 1251, 1255 (11th Cir. 2006) (citing Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1278 (11th Cir.2006)). The moving party bears the initial burden of showing that there are no material issues of fact. Imaging Business Machines, LLC v. BancTec, Inc., 459 F.3d 1186, 1192 (11th Cir.2006). Once the moving party satisfies that burden, the non-moving party must introduce facts showing a genuine issue of material fact. Id. In determining whether summary judgment is appropriate, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party," Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997) and "must resolve all reasonable doubts about the facts in favor of the non-movant," United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir.1990).

B. FDCPA

Plaintiff argues that she is entitled to judgment as a matter of law on her claims under the FDCPA. Pl.'s Mot. Sum. Judg. at 5. Congress enacted the FDCPA to "eliminate abusive debt collection practices by debt collectors ...." 15 U.S.C. § 1692e (1977). The FDCPA both requires and proscribes specific conduct by debt collectors. For example, under the FDCPA every initial debt communication must be accompanied within five days by a written debt validation notice that provides the debtor with thirty days to dispute the debt. 15 U.S.C. § 1692g(a). The FDCPA also prohibits the use of any "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e.

The FDCPA is a strict liability statute and, therefore, does not require a showing of intentional conduct on the part of a debt collector. Further, a single violation of the statute is sufficient to establish civil liability. Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2nd Cir. 1993).

To establish her claim under the FDCPA, Plaintiff must show that the Defendant is a debt collector and that it engaged in some act or omission prohibited by the FDCPA in attempting to collect from Plaintiff on her consumer debt. Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360-61 (S.D.Fla.2000). When determining whether the FDCPA has been violated, the Court must apply an objective test focused on how the least sophisticated consumer would be affected by Defendant's collection practices. Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1172-75 (1st Cir.1985). Courts have interpreted the least-sophisticated-consumer standard in a way that "protects debt collectors against liability for unreasonable misinterpretations of collection notices." Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir.1993) (collection notice valid although it did not expressly inform debtors that they had a right to contest a portion of the debt where that right was implicit in debtors' right to challenge the entire debt). Additionally, "courts have held that even the `least sophisticated consumer' can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care." Id.

This objective standard does not apply in all instances. For instance, the sophistication of the consumer is irrelevant to a determination that subsection (5) of § 1692e has been violated. Jeter, 760 F.2d at 1175. In examining alleged violations of § 1692e(5), the Court only looks to the debt collector's intent to take the action threatened. Id. "Thus, subsection (5) requires proof of a fact which amounts to a per se violation of § 1692e." Id. The Court notes, however, that the least-sophisticated-consumer standard applies to subsection (10) of § 1692e. Id. at 1177; Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 331 (6th Cir.2006).

C. Defendant Is a Debt Cell

15 U.S.C. § 1692a(6) defines "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails ... [to] regularly collect[] or attempt[] to collect, directly or indirectly, debts owed ... another." Paragraph five of Plaintiffs Complaint alleges that Defendant's principal purpose is the collection of debts and that it "regularly attempts to collect debts alleged to be due another using the mail and telephone." Compl. ¶ 5. Paragraph twenty-nine states: "Defendant is a `debt collector' as defined by 15 U.S.C. § 1692a(6)." Compl. ¶ 29. Defendant admitted both of these allegations in its answer. Accordingly, there is no issue of fact that Defendant is a debt collector within the meaning of the FDCPA.

D. Alleged Violations of the FDCPA

Plaintiff alleges that Defendant violated the FDCRA in the following ways: (1) Defendant failed to provide notice in a manner consistent with 15 U.S.C. § 1692g; (2) Defendant's notices contain contradictory language that overshadow the validation notice in violation of 15 U.S.C. § 1692e; (3) Defendant's notices make idle threats in violation of 15 U.S.C. § 1692e(5); and (4) Defendant threatened to report Plaintiffs debt as a bad debt in violation of 15 U.S.C. § 1692e(5) and (10).

1. Section 1692g Has...