Tucker v. CBE Group, Inc.

• Decision Date: 05 May 2010
• Docket Number: Case No. 3:09-cv-134-J-25 MCR
• Citation: 710 F.Supp.2d 1301
• Parties: Robert TUCKER, Plaintiff, v. The CBE GROUP, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

710 F.Supp.2d 1301

Robert TUCKER, Plaintiff,

v.The CBE GROUP, INC., Defendant.

Case No. 3:09-cv-134-J-25 MCR.

United States District Court,

M.D. Florida,

Jacksonville Division.

May 5, 2010.

Matthew William Kiverts, Michael Agruss, Jeffrey Spiegel, Krohn & Moss, Ltd., Theodore F. Greene, III, Law Offices of Theodore F. Greene, for Plaintiff.

David M. Schultz, Stephen Devereux Vernon, Glenn Banner, Hinshaw & Culbertson LLP, for Defendant.

ORDER

HENRY LEE ADAMS, JR., District Judge.

This Case is before the Court on Defendant's Motion for Summary Judgment (Dkt. 19). Plaintiff has filed a response to the motion and Defendant has filed a reply.

Background

Plaintiff Robert Tucker has an adult daughter, Stacey Tucker, who has several credit card accounts which have not been paid. Stacey Tucker lived with Robert Tucker for about 12 months at some point, probably in the last two to three years. (Tucker Depo. at 6-7).

One of Ms. Tucker's outstanding accounts was placed with Defendant CBE for collection in January of 2009. Shortly thereafter, CBE ran a Lexis Nexis Accurint for Collections search (Accurint) to locate a current telephone number for Ms. Tucker. An Accurint search uses an individual's unique personal identifiers (i.e. birth date and Social Security number) to pull information from various public and private databases in order to obtain a current telephone number for a particular individual. Because the search produced the same telephone number as that used by Plaintiff, CBE attempted to contact Ms. Tucker at that number. Those calls serve as the basis for Plaintiff's allegations in this case.

CBE has produced records showing it made fifty-seven calls to the relevant number but did not make more than seven calls on any given day. Defendant left six identical voice messages for Ms. Tucker during the relevant time period but never called the number back the same day after leaving a voice message. The voice messages stated the following:

This message from the CBE Group is intended for Stacey Tucker. If you are not the identified recipient of this message, please hang up or disconnect. If you are the identified recipient of this message, please hold the line. . By continuing to listen to this message, you acknowledge that you are Stacey Tucker. This is the CBE group. This is an attempt to collect a debt by a debt collector; any information obtained will be used for that purpose. Please contact me at 866-884-7575. Again the number is 866-884-7575.

At his deposition, Plaintiff Robert Tucker stated he understood from the voice messages that CBE was calling Stacey Tucker and knew that it was trying to collect a debt from her, not from him. (Tucker Depo. at 17). He also stated that he knew he was not responsible for debts owed by his daughter. ( Id. at 18). Although not entirely clear, it appears Mr. Tucker never actually spoke to a CBE representative.

Defendant produced evidence that if it knew the relevant number was not a valid number for Ms. Tucker, it would have removed the number from its records and ceased further calls.

Plaintiff's complaint was filed under the Fair Debt Collection Practices Act (FDCPA),¹ 15 U.S.C. Section 1692 et seq. Although it contains only one Count, theComplaint alleges five distinct violations of the act:

a. Defendant violated § 1692d(5) of the FDCPA when Defendant caused Plaintiff's telephone to ring repeatedly and continuously with the intent to annoy, abuse and harass Plaintiff.

b. Defendant violated § 1692e(2)(A) of the FDCPA by falsely representing the character, amount, and legal status of Plaintiff's alleged consumer debt because Plaintiff does not owe the debt.

c. Defendant violated § 1692e(10) of the FDCPA by using false and deceptive means in an attempt to collect a debt from Plaintiff because Plaintiff does not owe the debt alleged by Defendant.

d. Defendant violated § 1692f(1) of the FDCPA by attempting to collect a debt that is not authorized by the agreement because Plaintiff does not owe the debt.

e. Defendant violated § 1692g(a)(1-5) by failing to provide appropriate notice of the debt within 5 days after the initial communication....

Plaintiff seeks statutory damages, actual damages, costs, fees, and a declaratory judgment.

Standard²

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Issues are genuine if a reasonable jury could find for the non-movant and facts are material if they can affect the outcome. Scottsdale Ins. Co. v. Cutz, LLC, 543 F.Supp.2d 1310, 1313 (S.D.Fla.2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Once the moving party has discharged its burden, the nonmoving party must designate specific facts showing that there is a genuine issue of material fact. All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Id. The Court may not weigh the credibility of the parties on summary judgment. Id.

Analysis

Sections 1692e(2)(A), 1692e(10), and 1692f(1)-Attempting to collect a debt not owed

Plaintiff's Complaint maintains that Defendant violated Sections 1692e(2)(A), 1692e(10), and 1692f(1) by attempting to collect a debt he did not owe. However, as Defendant notes, Plaintiff acknowledged that the voice messages explicitly stated that they were intended for his daughter, Stacey Tucker. (Tucker Depo at p. 2). Further, Plaintiff testified that he knew that Defendant was not attempting to collect a debt from him. ( Id. at p. 9).³ Accordingly, Plaintiff's depositiontestimony appears to contradict the Complaint's allegations that CBE was attempting to collect a debt from him.

In addition, Defendant notes that Plaintiff fails to identify any false representation that CBE made, as required to prove a violation of Section 1692e(2)(A) and 1692e(10) of the FDCPA. Nor has Plaintiff identified any deceptive means used by CBE, as needed to prove a violation of Section 1692e(10). Plaintiff also fails to explain how the volume of relevant calls demonstrates a violation of these Sections.

The Court finds that CBE's voice messages clearly identified Stacey Tucker as the intended recipient of the messages and were otherwise factually accurate. Plaintiff has failed to identify any false representation or deceptive means used by CBE in an attempt to collect a debt. The Court finds that Plaintiff has failed to demonstrate any violation of the three Sections of the FDCPA listed previously. Section 1692d(5)-causing a phone to ring repeatedly and continuously with the intent to annoy, abuse, and harass.

As to Section 1692d(5) of the FDCPA, Plaintiff alleges that Defendant violated this Section by noting the frequency of the calls. Joseph v. J.J. Mac Intyre Companies, LLC., 238 F.Supp.2d 1158, 1168-69 (N.D.Cal.2002) (volume and pattern of calls created issue of fact as to Section 1692d(5) claims). Plaintiff also cites Kuhn v. Account Control Tech., Inc., 865 F.Supp. 1443, 1453 (D.Nev.1994) (granting summary judgment in plaintiff's favor on Section 1692d(5) claim based on timing of calls).⁴

The Court notes that Plaintiff's cited cases are factually distinguishable from the instant case. In Joseph, the Defendant collection agency made more than 200 calls over a nineteen month period despite the fact that Plaintiff had begun making $50 monthly payments towards her debt. The Court also noted that many of the calls in Joseph were made shortly after voice contact in which plaintiff requested the calls cease. In Kuhn, the Court found the collector harassed Plaintiff in violation § 1692d(5) when, after Plaintiff hung up on a prior call, Defendant recalled Plaintiff's place of employment two additional times within a five minute period. Kuhn, 865 F.Supp. at 1453.

In sum, Plaintiff has not demonstrated that CBE engaged in oppressive conduct such as repeatedly making calls after it was asked to cease. Notably, Defendant never even spoke to Plaintiff; Defendant was not notified that it could not reach Stacey Tucker at the relevant telephone number and Plaintiff did not request that CBE cease calling.

While the number of calls made during the relevant time period does seem somewhat high, Defendant only left a total of six messages, made no more than seven calls in a single day, and did not call back the same day after leaving a message. The evidence demonstrates that CBE placed each of its telephone calls with an intent to reach Stacey Tucker rather than an intent to harass Plaintiff.

Thus, the circumstances here do not constitute a violation of Section 1692d(5) as a matter of law. Because the Court findsthat Defendant did not violate this Section, the Court need not discuss Defendant's bona fide error defense.^FN5FN6

FN5. The bona fide error defense is used when the Defendant demonstrates that reasonable procedures are in place to prevent errors; the procedures need not be foolproof. 15 U.S.C. § 1692k(c); see also Kort v. Diversified Collection Services, Inc., 394 F.3d 530, 538-39 (7th Cir.2005) (FDCPA does not require debt collectors to take every conceivable precaution to avoid errors, but only requires reasonable procedures).

FN6. Plaintiff notes that his answering machine recording is a male voice speaking in the first person. However, Plaintiff provides no transcript of the recording. Further, Plaintiff does not cite case law that demonstrates that this, without more, put Defendant on notice that Ms. Tucker could not be reached at the relevant number.

Section 1692(g)-Written validation notice requirement

As to Section 1692(g), Plaintiff concedes he is not a consumer and thus this Count is dismissed.

...