Robinson v. Tsys Total Debt Management, Inc.

• Decision Date: 25 August 2006
• Docket Number: Civil Action No.: RDB 05-2130.
• Citation: 447 F.Supp.2d 502
• Parties: Carolyn A. ROBINSON, Plaintiff pro se, v. TSYS TOTAL DEBT MANAGEMENT, INC., a/k/a TSYS Total Debt Management, Defendant.
• Court: U.S. District Court — District of Maryland

447 F.Supp.2d 502

Carolyn A. ROBINSON, Plaintiff pro se, v. TSYS TOTAL DEBT MANAGEMENT, INC., a/k/a TSYS Total Debt Management, Defendant.

Civil Action No.: RDB 05-2130.

United States District Court, D. Maryland.

August 25, 2006.

Carolyn A. Robinson, Frederick, MD, pro se, for Plaintiff.

Thomas Jay Althauser, Gregg Edward Viola, Eccleston and Wolf PC, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

BENNETT, District Judge.

Pending before this Court are two motions: Defendant TSYS Total Debt Management, Inc., a/k/a TSYS Debt Management's ("TDM" or "Defendant") Motion for Summary Judgment and Plaintiff Carolyn A. Robinson's ("Robinson" or "Plaintiff') Motion for Partial Summary Judgment. The primary issue raised by these motions is whether Defendant's conduct with respect to Plaintiffs credit information violates the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA") or the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq. ("FCRA"). This Court has jurisdiction pursuant to 28 U.S.C. § 1331. The parties' submissions have been reviewed and no hearing is necessary. See D. Md. Loc. R. 105.6 (2004). For reasons stated below, Defendant's Motion for Summary Judgment is GRANTED and Plaintiffs Motion for Partial Summary Judgment is DENIED.

BACKGROUND

The background of this case must be viewed in the context of the Defendant having taken one act of requesting a likelihood of collection score for the Plaintiff from a third party vendor. The pro se Plaintiff has not documented any facts that would indicate that the Defendant took any other actions. Even reviewing the facts in the light most favorable to the Plaintiff, there are simply no genuine issues of material fact.

In her Complaint, Plaintiff alleges that on or about November 2, 2004, Defendant engaged in "continued collection activity" by "obtain[ing] a consumer report on Plaintiff." (Compl.¶ 10.) Plaintiff also alleges that on or about November 2, 2004, Defendant "entered an `inquiry' about Plaintiff to a credit reporting agency (`CRA') Experian Information Solutions ... [that] contained derogatory information that Plaintiff had not paid a bill allegedly incurred by her." (Id. ¶ 17.) Finally, Plaintiff alleges that Defendant failed to take appropriate corrective action after Plaintiff notified Defendant of its alleged misconduct. (Id. ¶ 19.)

In its summary judgment papers, Defendant notes that it operates a division known as the National Attorney Network ("NAN") that licenses software to law firms throughout the United States. (Def.'s Mem. Supp. Summ. J. 2.) These law firms use NAN's software when hired to collect on delinquent accounts. (Id.) In addition, NAN "services business creditors by providing an interface between the creditor and the law firms that utilize NAN software to collect the delinquent accounts." (Id.) The Plaintiff has not presented any facts to dispute these facts.

Target National Bank ("Target Bank"), the financing arm of the national retail chain store, is apparently one of Defendant and NAN's clients. (Def.'s Mem. Supp. Summ. J. 2.) Defendant states that Plaintiff maintained a Target Visa credit card account administered by Target Bank. (Id.) After Plaintiffs credit card account became delinquent, Defendant contends that Target Bank retained a Maryland law firm to collect the debt. (Id.) It is undisputed and a matter of public record that on or about October 4, 2004, Target Bank obtained a judgment against Plaintiff in the amount of $3,588.24 plus interest, costs, and attorney's fees, in the District Court of Maryland for Frederick County. (Id.)

Defendant explains that on or shortly before November 2, 2004, Target Bank advised Defendant that "it wished to obtain a likelihood of collection score on [Plaintiffs] account." (Def.'s Mem. Supp. Summ. J. 2.) This type of score is obtained from a credit reporting agency named Experian, Inc. ("Experian") and estimates the likelihood of collection with respect to a particular account. (Id.) On or about November 2, 2004, Defendant requested and received a likelihood of collection score from Experian with respect to Plaintiff's account. (Id. at 2-3.) Defendant maintains that "[a]t no time did [Defendant] or NAN access, examine, or obtain a copy of Plaintiff's credit report or advise Experian that Plaintiff had not paid a bill allegedly incurred by her." (Id. at 3.) The Plaintiff has not submitted any facts to bring this summary into question.

On August 4, 2005, Plaintiff filed her Complaint in this Court. Three of the four defendants named in Plaintiffs Complaint—Hilco Receivables, LLC, Academy Collections, and Crown Asset Management—have been dismissed, leaving TDM as the only remaining defendant. (See Paper Nos. 26 & 29.) On October 3, 2005, Defendant filed its Motion for Summary Judgment. (Paper No. 10.) On October 11, 2005, Plaintiff filed a Motion to Require Defendant to Comply with Fed.R.Civ.P. 5(a), alleging that, inter alia, she never received a copy of Defendant's Motion for Summary Judgment. On November 22, 2005, this Court denied Plaintiffs Motion to Require Defendant to Comply with Fed. R.Civ.P. 5(a). On November 15, 2005, Plaintiff filed its Motion for Partial Summary Judgment. (Paper No. 28.) Discovery in this matter has not commenced.

STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c) (emphasis added). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court explained that only "facts that might affect the outcome of the suit under the governing law" are material. Id. at 248, 106 S.Ct. 2505. Moreover, a dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. The Court further explained that, in considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence supporting a claimed factual dispute exists to warrant submission of the matter to a jury for resolution at trial. Id. at 249, 106 S.Ct. 2505. In that context, a court is obligated to consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also E.E. O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir.2005).

When both parties file motions for summary judgment, as here, the court applies the same standards of review. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir.1983) ("The court is not permitted to resolve genuine issues of material fact on a motion for summary judgment—even where ... both parties have filed cross motions for summary judgment.") (emphasis omitted), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985). The role of the court is to "rule on each party's motion on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." Towne Mgmt. Corp. v. Hartford Acc. & Indem. Co., 627 F.Supp. 170, 172 (D.Md. 1985). "[B]y the filing of a motion [for summary judgment] a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary's theory is adopted." Nafco Oil & Gas, Inc. v. Appleman, 380 F.2d 323, 325 (10th Cir.1967); see also McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C.Cir.1982) ("[N]either party waives the right to a full trial on the merits by filing its own motion."). However, when cross-motions for summary judgment demonstrate a basic agreement concerning what legal theories and material facts are dispositive, they "may be probative of the non existence of a factual dispute." Shook v. United States, 713 F.2d 662, 665 (11th Cir.1983).

DISCUSSION

I. Discovery.

This Court acknowledges the general principle that "summary judgment must be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The nonmoving party, however, "cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery." Evans v. Techs. Applications & Service Co., 80 F.3d 954, 961 (4th Cir. 1996). "If a party believes that more discovery is necessary for it to demonstrate a genuine issue of material fact, the proper course is to file a Rule 56(f) affidavit stating 'that it could not properly oppose a motion for summary judgment without a chance to conduct discovery.'" Harrods Ltd., 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). "[A] party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit." Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir.1995). See Stray v. Board of Trustees, 55 F.3d 943, 954 (4th Cir.1995) (denial of Rule 56(f) motion generally appropriate "where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment"); Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ("Only disputes over facts that might affect the outcome of the...