Thompson v. Resurgent Capital Servs., L.P., Civil Action Number: 2:12-cv-01018-JEO

• Decision Date: 31 March 2015
• Docket Number: Civil Action Number: 2:12-cv-01018-JEO
• Parties: FRANCES McINTYRE THOMPSON, Plaintiff, v. RESURGENT CAPITAL SERVICES, L.P., and PYOD, L.L.C., Defendants.
• Court: U.S. District Court — Northern District of Alabama

FRANCES McINTYRE THOMPSON, Plaintiff, v. RESURGENT CAPITAL SERVICES, L.P., and PYOD, L.L.C., Defendants.

Civil Action Number: 2:12-cv-01018-JEO

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 31, 2015

MEMORANDUM OPINION

This case arises under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA" or "Act") and Alabama state law. Filed by Plaintiff Frances McIntyre Thompson ("Thompson" or "Plaintiff"), through counsel, the action comes to be heard before the undersigned after the parties consented to magistrate judge jurisdiction, see 28 U.S.C. § 636(c), FED. R. CIV. P. 73(a), on two motions filed jointly by the defendants, Resurgent Capital Services, L.P. ("Resurgent") and PYOD, L.L.C. ("PYOD") (collectively "Defendants"). The first motion seeks summary judgment on all claims. (Doc.¹ 39). The second is an associated motion to strike, directed at certain FDCPA claims or theories argued within Plaintiff's response in opposition to summary judgment. (Doc. 44). Upon consideration, the court finds that both of Defendants'motions be granted in part and denied in part.

I. SUMMARY JUDGMENT STANDARDS

Pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, a party is authorized to move for summary judgment on all or part of a claim asserted against the movant. Under that rule, the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. PROC. 56(a). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion," relying on submissions "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Once the moving party has met its burden, the nonmoving party must "go beyond the pleadings" and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324. Both the party "asserting that a fact cannot be," and a party asserting that a fact is genuinely disputed, must support their assertions by "citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. PROC. 56(c)(1)(A), (B). In its review of the evidence, a court view the evidence in the light most favorable to the non-movant. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). At summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

II. BACKGROUND

According to the complaint, Plaintiff incurred a consumer debt that went into default in 1998 or 1999. (Doc. 1 ("Complaint" or "Compl.") ¶¶ 9, 12). Plaintiff asserts that Defendants Resurgent and PYOD are both debt collectors who are part of a related set of companies and that they operated as agents for each other at all times relevant. (Compl. ¶¶ 4-8, 60). She further claims that Defendants are "targeting consumers ... in an attempt to illegally force them into paying debts that are either not owed or are well beyond the statute of limitations." (Id. ¶ 13). Plaintiff says she was so targeted when she "started receiving calls and letters from the Defendants or from collection agencies for the Defendants" (id. ¶ 11), and that,"on or about March 19, 2012," an agent or employee of Resurgent, called Plaintiff about the debt in question, associated with a First USA MasterCard account. (Id. ¶ 14). Plaintiff says, she advised Defendants that the debt had been "charged off" in 1998 or 1999 and "that she had been contacted by a number of companies over the years about this debt and that she had written letters before about [it]." (Id. ¶¶ 15, 18). Plaintiff asserts that, although Defendants admitted the statute of limitations on the debt had run in 2004, Defendants "were not concerned about her letters" and told her that she "still had to pay this debt" and "threatened to put this debt on [her] credit report if she did not pay." (Compl. ¶¶ 16, 17, 19, 20). Plaintiff claims, however, that she "does not owe any money to Defendants" (id. ¶ 10) and that they were aware not only that the limitations period had expired but also and that the last date to legally credit report the debt was in 2005 or 2006. (Id. ¶¶ 16, 22-23). Plaintiff claimed that Defendants knowingly violated the FDCPA when they threatened to put the stale debt on her credit report in 2012 and that Defendants made such threat to "harass, annoy, abuse, or oppress Plaintiff, so that [she] pays thedebt." (Id. ¶¶ 24-26). Plaintiff also asserts that "Defendants have refused to give all required disclosures under the FDCPA when communicating with [her]." (Id. ¶ 59).

Based on these allegations, Plaintiff claims that "all of the above described collection communications" violated a host of enumerated statutory sections of the FDCPA for which both Defendants are liable, "including, but not limited to the following: [15 U.S.C. §§] 1692d, 1692e, 1692e(2), 1692e(5), 1692e(8), 1692e(10), 1692e(11), 1692f, and 1692f(1)," (Compl. ¶¶ 61, 62, 77; id., Count I). She further claims that, based on their "repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law," Defendants are liable under Alabama law for invasion of privacy. (Compl. ¶ 66; id., Count II). Finally, Plaintiff asserts that Defendants engaged in "negligent, wanton, and/or intentional [mis]conduct," both as it relates to hiring, training, and supervising employees (id., Count III) and in attempting to collecting the debt itself. (Id., Count IV).

Following discovery, Defendants have moved for summary judgment on all counts. (Doc. 39). That motion has been fully briefed (Docs. 39, 40, 41, 45), and the parties have filed evidence in support of their respective positions. (Docs. 39-1 through 39-5; Doc. 42). In addition, Defendants have filed a motion to strike that is directed at certain allegations and arguments in Plaintiff's response in opposition to summary judgment, which Defendants characterize as an improper attempt by Plaintiff to raise new, unpled claims under the FDCPA. (Doc. 44). Plaintiff has opposed that motion. (Doc. 46).

III. DISCUSSION

A. FDCPA Claims

"The FDCPA is a consumer protection statute that prohibits certain abusive, deceptive,and unfair debt collection practices." Marx v. General Revenue Corp., ___ U.S. ___, ___ n.1, 133 S. Ct. 1166, n.1 (2013) (citing 15 U.S.C. § 1692).

The Act regulates interactions between consumer debtors and "debt collector[s]," defined to include any person who "regularly collects ... debts owed or due or asserted to be owed or due another." §§ 1692a(5), (6). Among other things, the Act prohibits debt collectors from making false representations as to a debt's character, amount, or legal status, § 1692e(2)(A); communicating with consumers at an "unusual time or place" likely to be inconvenient to the consumer, § 1692c(a)(1); or using obscene or profane language or violence or the threat thereof, §§ 1692d(1), (2). See generally §§ 1692b-1692j; Heintz v. Jenkins, 514 U.S. 291, 292-293 (1995).

Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010).

The FDCPA prohibits debt collectors from making statements and engaging in conduct that is "deceptive," "misleading," "unconscionable," or "unfair," 15 U.S.C. §§ 1692e, 1692f, as viewed from the perspective of the "least sophisticated consumer." Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1258 (11th Cir. 2014) (citing LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193-94, 1200-01 (11th Cir. 2010)). The "basic purpose of the 'least-sophisticated consumer' standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." LeBlanc, 601 F.3d at 1194 (quoting Clomon v. Jackson, 988 F.2d 1314, 1318 (2nd Cir. 1993)). The Eleventh Circuit has explained the contours of that liberal standard thus:

That law was not made for the protection of experts, but for the public—that vast multitude which includes the ignorant, the unthinking, and the credulous and [t]he fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious.

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[However], [t]he least sophisticated consumer can be presumed to possessa rudimentary amount of information about the world and a willingness to read a collection notice with some care. However, the test has an objective component in that [w]hile protecting naive consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness.

LeBlanc, 601 F.3d at 1194 (quotation marks and citations omitted).

"To enforce the FDCPA's prohibitions, Congress equipped consumer debtors with a private right of action, rendering "debt collectors who violate the Act liable for actual damages, statutory damages up to $1,000, and reasonable attorney's fees and costs." Crawford, 758 F.3d at 1257 (quoting Owen, 629 F.3d at 1270 (citing 15 U.S.C. § 1692k(a))). "In order to prevail on an FDCPA claim, a plaintiff must prove that: '(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or...