Smith v. Greystone Alliance LLC.
| Decision Date | 29 March 2011 |
| Docket Number | No. 09 C 5585,09 C 5585 |
| Parties | Tara Smith, Plaintiff v. Greystone Alliance LLC, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION TEXT STARTS HERE
The Honorable William J. Hibbler
Tara Smith alleges that Greystone Alliance LLC violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seqf when it failed to identify itself as a debt collector as required by § 1692e(l 1) and when it had contacted her business partner in violation of § 1692c(b)§ 1692d. The Court previously granted Smith's motion to certify a class in connection with her § 1692e claim. Both parties move for summary judgment.
On August 13, 2009, Greystone mailed Smith a collection letter concerning a credit card debt belonging to her that had been placed with Greystone for collection. (Def. 56.1 (a)(3) St. (Def. St.) ¶¶ 44-45). That letter identified Greystone as a "debt collector" and informed Smith that the letter was an attempt to collect a debt and that any information she provided would be used for that purpose. (Def. St. ¶ 45). Although Smith received the letter, the record does not reflect the date she received it. (Smith Dep. at 68-69).
The next day, a Greystone employee, Andre Garner, called Smith's residential telephone and left a voice message for her. (Def. St. ¶ 47). In that message, Garner identified himself by name and informed Smith that he represented Greystone. (Def. St. ¶ 49). Garner did not, however, inform Smith that Greystone was a debt collector. (Def. St. ¶ 49). Rather, he simply stated his name, his employer's name, provided a phone number, and asked her to return his call "in regards to a file that has been placed in [his] office." (Def. St. ¶ 49).
Shortly after leaving a message on Smith's home answering machine, Garner attempted to contact Smith at a telephone number ending in 2882. (PI. 56.1 (b)(3)(B) St. (PI. St.) Ex. 2). Garner was unable to reach Smith at the number and changed its status from unknown to bad. Garner then attempted to contact Smith at a telephone number ending in 7876. (PI. St. Ex. 2).1 Garner left a message at the 7876-number. (PL St. Ex. 2). A few minutes later, Oneta Sampson, who was Smith's business partner, returned Garner's call. (PI. St. Ex. 2). According to Sampson, she asked Garner why he had called. (Sampson Dep. at 12). Garner informed Sampson that his call related to a personal matter. (Sampson Dep. at 12). After learning the nature of his call, Sampson told Garner that he could not reach Smith, her business partner, at that number. (Sampson Dep. at 12). According to Sampson, Garner retorted that Sampson should "know who [she is] doing business with." (Sampson Dep. at 12).2 Moreover, Garner did not update Greystone's files to indicate that the 7876-number was not a number at which he could contact Smith. Instead, Garner added the 7876-number to Greystone's records. (PI. St. Ex. 2).
Later that evening, Smith returned Garner's call. (Def. St. ¶¶ 57-58). Garner discussed with Smith the debt Greystone was attempting to collect. (Def. St. ¶¶ 57-58). According to Smith, Garner also informed her that he had spoken with Sampson about the debt and that she was not pleased. (Smith Dep. at 32). After Smith told Garner that she was not able to pay the debt at that time, Garner informed Smith that her account was being documented as a refusal to pay. (Def. St. ¶ 58).
On August 17, Smith twice called Greystone to speak with Garner. (Def. St. ¶¶ 59-60). During the first call, Smith requested information so that she could send payments. (Def. St. ¶ 59). After making the first call, Smith called back ten minutes later to request Garner's name and terminated the conversation after yelling at him. (Def. St. ¶ 60).3 The next day, August 18, another Greystone employee, Michael Raylea, left an automated message on Smith's residential answering machine. (Def. St. ¶ 61; Smith Dep. at 63). Raylea, like Garner, informed Smith of both his and Greystone's names, but did not inform her that Greystone was a debt collector. (Def. St. ¶ 61). On August 19, Greystone left an automated message at the 7876-number (PI. St. Ex. 2). On August 21, Victoria Pearson left a message at the 7876-number. (Def. St. ¶ 63; PI. St. Ex. 2). Pearson, like Raylea and Garner, informed Smith of her and Greystone's names, but did not inform her that Greystone was a debt collector. (Def. St. ¶ 63). Sampson returned Pearson's call and again informed Greystone not to call that number in the future. (Sampson Dep. at 14-15).
Greystone continued to call Smith over the next several weeks. (Def. St. ¶¶ 66-69). When it called, Greystone sometimes left an automated message, sometimes left no message, and sometimes had its employee leave a live voice message. (Def. St. ¶¶ 66-69). Only the automated message identified Greystone as a debt collector. (Def. St. ¶¶ 66-69).
Greystone trains its employees regarding compliance with the FDCPA and its internal policies and procedures. (Def. St. ¶ 14).4 Among other things, Greystone employees must pass a written examination regarding FDCPA requirements. (Def. St. ¶ 21). To ensure compliance with the FDCPA and its internal policies, Greystone employs a Call Monitoring Program and Remedial Response Process. (Def. St. ¶ 32). Pursuant to that policy, Greystone monitors a minimum of six calls per month made by each of its collectors and nine calls per month made during a collector's first month of employment. (Def. St. ¶¶ 34-35). If Greystone determines that a collector has violated the FDCPA, it monitors that employee as if the collector were newly hired. (Def. St. ¶ 36). Greystone also employs a progressive discipline policy for collectors who repeatedly violate the FDCPA, which can lead to termination. (Def. St. ¶¶ 37-41).5
Greystone utilizes several scripts that its employees follow when leaving voice messages for debtors. (Def. St. ¶ 26). From March 2009 to September 2009, Greystone required its employees to use the "Greystone Alliance Foti Message" when making a first attempt to contact a debtor and on any additional attempt to contact the debtor until a "right party contact" had been established, pursuant to its Foti Message Policy. (Def. St. Ex. 2(F) at GRY005). The Foti Message Policy states that "toll-free phone number" and "file number." (Def. St. Ex. 2(F) at GRY005) (emphasis in original). The Foti Message Policy thus clearly directs employs to mention neither that the caller is calling on behalf of Greystone nor that Greystone is a debt collector once a right party contact has been established. (Def. St. Ex. 2(F) at GRY005). Greystone considers a "right party contact" to be established when its employee confirms that a specific telephone number belongs to the debtor it is attempting to contact. (Def. St. ¶ 28).
Greystone, however, does not clearly identify its Foti Message. Following the Foti Message Policy are four scripts that Greystone employees follow. (Def. St. Ex. 2(F) at GRY006-008). Although its Foti Message Policy provides guidance concerning when its Foti Message should be used, Greystone nowhere clearly identifies which of the four scripts is the Foti Message, and thus it is not clear when any of these scripts should be used. To the extent that Greystone has failed to make clear its own policies, the Court will draw inferences favorable to whichever party is the non-moving party based upon the plain language of what it describes as its "Foti Message Policy." (Def. St. Ex. 2(F) at GRY005).
None of the four scripts that follow the Foti Message Policy is titled as Greystone's "Foti Message." Rather, they are titled: "Message for Answering Machines," the "Greystone Script," and "Foti Script for Live Answer with Hot Key" and "Foti Script for Machine Messages." (Def. St. Ex. 2(F) at GRY006-008)). Each of the scripts requires its employee to identify Greystone and make clear that the call is being made in an attempt to collect a debt (and so perhaps each of the scripts, which contains the required disclosures for an initial communication, is a variant of its Foti Message). (Def. St. Ex. 2(F) at GRY006-008). Each of the scripts, though, directs an employee to provide more information than Greystone's Foti Message Policy requires them to provide once a right party contact is made, and so they are not the scripts that Greystone utilizes in subsequent communications with a consumer. (Def. St. Ex. 2(F) at GRY005-008). After a right party contact is made, employees are directed to provide only their name, the file number, and a toll-free number to return the call. (Def. St. Ex. 2(F) at GRY005).6
It is clear that none of the Greystone employees followed any of the scripts when contacting Smith. Moreover, it is also clear that although each of the employees identified himself or herself as a Greystone employee, contrary to the direction in Greystone's Foti Message Policy for calls made after a "right party contact," none of the collectors ever explained to Smith that Greystone is a debt collector. Finally, it is clear that Greystone's Foti Message Policy does not require callers to identify Greystone as a debt collector after a "right party contact" is made.
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, All U.S. 317, 322-23,106 S.Ct., 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of demonstrating there is no genuine issue of material fact,...
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