Saunders v. NCO Fin. Sys., Inc.

• Decision Date: 19 December 2012
• Docket Number: No. 12–cv–1750 BMC.,12–cv–1750 BMC.
• Citation: 910 F.Supp.2d 464
• Parties: Patrick SAUNDERS, Plaintiff, v. NCO FINANCIAL SYSTEMS, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

910 F.Supp.2d 464

Patrick SAUNDERS, Plaintiff,

v.NCO FINANCIAL SYSTEMS, INC., Defendant.

No. 12–cv–1750 BMC.

United States District Court,

E.D. New York.

Dec. 19, 2012.

Jeanne Lahiff, Weisberg & Meyers LLC, for Plaintiff.

Aaron R. Easley, Sessions Fishman Nathan Israel LLC, for Defendant.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

The legislative history of both the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. and the Telephone Communications Practice Act (“TCPA”), 47 U.S.C. § 227 et seq. discloses a well-based concern by Congress to reduce abusive practices that collection companies had employed against debtors and consumers. Like any statutes, however, remedial laws can themselves be abused and perverted into money-making vehicles for individuals and lawyers. This may be one of those cases. The evidence in the record before me suggests that plaintiff may have engaged in a game of cat and mouse with first his creditor and then its collection company, obscuring his identity so that there was no way the collection company could know with whom it was dealing, all for the purpose of creating this lawsuit. I am granting defendant's motion for summary judgment, and I am requiring plaintiff and his attorney to show cause why monetary sanctions should not be imposed under Rule 11 of the Federal Rules of Civil Procedure.

BACKGROUND

The following facts are not in dispute. On or about August 27, 2009, plaintiff opened an account with Public Access to Court Electronic Records (“PACER”), which is an electronic public access service that allows users to obtain case and docket information from federal courts via the Internet. In opening the account, plaintiff did not use his own name. Instead, he listed the account holder as “PLS” (apparently those are his initials). In addition, although PACER requires an address to open an account, plaintiff did not give his correct address in Brooklyn. Instead, he provided his mother's address in Glenn Dale, Maryland even though he had not lived there for almost 15 years. Finally, as PACER requires a contact telephone number, plaintiff listed his cell phone number as the only number on the application.

PACER charges on a per-page retrieval basis, and plaintiff incurred charges of $36.35. He quickly defaulted on this debt, and PACER turned plaintiff's account over to defendant NCO Financial Systems, Inc. for collection on October 6, 2010. Five days later, on October 11, 2010, NCO sent a “validation notice,” that is, a notice pursuant to 15 U.S.C. § 1692g, that the debt had been assigned to it for collection, and advising the account debtor of his rights, to the only address plaintiff had given it—the Maryland address.¹ Plaintiff never received that letter. Three days after sending the letter, NCO began calling the number on file in an effort to reach the responsible party, “PLS.” At least some of the calls were automated, recorded voice calls.

Plaintiff wrote to NCO on March 16, 2011. In this letter, he recited that he had received two automated calls on that day, and that he was writing “pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 1692(g),” to advise NCO “that your claim is disputed and validation is requested.” Plaintiff requested that NCO stop contacting him by phone “about the above-referenced debt” and insisted that all future communications with plaintiff must be done in writing and sent to the address noted in the letter. The letter further requested identification of the creditor, the amount of the debt, and the original account number.

Significantly, the letter did not disclose or mention in any way that plaintiff was writing with reference to an account in the name of “PLS,” nor did it disclose that the address of the account debtor was in Maryland. In addition, the letter did not contain the telephone number that NCO had been calling. NCO checked its records for an account under plaintiff's name or at the address on his letter—his home address in Brooklyn—and could not locate the account. NCO therefore wrote back to plaintiff on April 22, 2011, advising plaintiff that it could not find an account in his name, and asking him to supply further information such as his social security number and the telephone number at which it was allegedly calling plaintiff.

Plaintiff responded by letter dated April 27, 2011. He identified the dates and times at which he had received automated calls since sending his initial letter and the NCO number which the automated caller asked him to call in order to reach “Anthony Davis with NCO.” Plaintiff again demanded cessation. Once again, however, he did not disclose the name of the account, the address of the account, or the telephone number to which the calls were being made. In fact, plaintiff expressly declined to provide any additional information, saying he did not feel “comfortable,” and that he was “reserve[ing] the right to seek any remedies allowed by law to resolve this matter.”

On May 10, 2011, NCO wrote back, again advising plaintiff that it still could not identify a debtor named Patrick Saunders with an address in Brooklyn, and again asking for information as to the identity of the original creditor or the account number, and, again, the telephone number at which plaintiff was being called.

Plaintiff failed to respond to this letter. Instead, he filed a complaint with the New York City Department of Consumer Affairs (“NYCDCA”). NYCDCA contacted NCO, but with the same absence of accurate identifying information, NCO still could not locate the account, and it so advised NYCDCA.

Finally, on May 23, 2011, plaintiff called NCO and gave a customer service representative the actual address and telephone number on the account. The representative thereupon located the account. Plaintiff advised that he would be sending a fax to confirm his request that NCO cease and desist collection efforts, but he never sent the fax. Instead, he brought this lawsuit.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that “affect the outcome of the suit under the governing law,” and “[a]n issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Shade v. Hous. Auth. of New Haven, 251 F.3d 307, 314 (2d Cir.2001) (citation omitted). In determining whether there is a genuine issue as to any material fact, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

The moving party bears the burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] ... which it believes demonstrates the absence of a genuine issue of fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party meets its initial burden, the non-moving party must then come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(c); See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir.2000). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Rather, the non-movant must offer “concrete evidence from which a reasonable juror could return a verdict in [its] favor.” Id. at 252, 106 S.Ct. 2505.

II. The TCPA Claim

The TCPA prohibits any person from calling a cell phone number “using any automatic dialing system or an artificial or prerecorded voice” unless that person has “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). Here, plaintiff concedes that by listing only his cell phone number with PACER, he gave both PACER and NCO, its collection agent, “prior express consent.” This is a concession that plaintiff must make, as the authorities are almost unanimous that voluntarily furnishing a cellphone number to a vendor or other contractual counterparty constitutes express consent. See Soppet v. Enhanced Recovery Co. LLC, 679 F.3d 637 (7th Cir.2012); Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036 (9th Cir.2012); Moore v. Firstsource Advantage, LLC, No. 07–CV–770, 2011 WL 4345703 (Sept. 15, 2011 W.D.N.Y.); Starkey v. Firstsource Advantage, LLC, No. 07–CV–662A(Sr), 2010 WL 2541756 (Mar. 11, 2010 W.D.N.Y.); FCC 07–232 Declaratory Ruling (Dec. 28, 2007).

Instead, plaintiff contends that his letters to NCO of March 16, 2011 and April 27, 2011 constituted revocations of his prior consent because he therein told NCO to stop calling him. This argument fails both factually and legally.

Factually, the theory fails because neither letter gave NCO sufficient information to identify the account. All plaintiff had to write was that NCO should look for an account named “PLS” or at least give the address or cell phone number that he had given PACER when registering for his account. For whatever reason, he chose not to. The fact that Patrick Saunders of Brooklyn wished to revoke prior consent was meaningless; it may as well have been John Smith of Tacoma making the request. No amount of effort on NCO's part would have disclosed that Patrick Saunders of Brooklyn was actually PLS of Maryland.

Plaintiff's only response to this is to note that in his PACER application, plaintiff listed the “contact person” at PLS as “P. Saunders.” However, the record before me is undisputed that the “contact person” information does not appear in a searchable field that NCO can access. One has to first know who the account debtor is before one can find any particular contact at that account debtor. NCO can search by the name of the account debtor, his address,...