Udell v. Kansas Counselors, Inc.
| Decision Date | 12 April 2004 |
| Docket Number | No. 03-2412-JWL.,03-2412-JWL. |
| Citation | 313 F.Supp.2d 1135 |
| Parties | Colleen UDELL and Jack Udell, Plaintiffs, v. KANSAS COUNSELORS, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
David M. Bryan, Kansas City, MO, for Plaintiffs.
Michael A. Klutho, Bassford Remele, A Professional Association, Minneapolis, MN, John G. Schultz, Franke, Schultz & Mullen, PC, Kansas City, MO, for Defendant.
This lawsuit arises from the debt collection practices of defendant Kansas Counselors, Inc. ("KCI") in attempting to collect debts from plaintiffs Colleen and Jack Udell. Plaintiffs assert claims under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o ("FDCPA"), and the Kansas Consumer Protection Act, Kan. Stat. Ann. §§ 50-623 to 50-644 ("KCPA"). The matter is presently before the court on KCI's motion for summary judgment (Doc. 10). In plaintiffs' response to KCI's motion for summary judgment, plaintiffs also moved for summary judgment (Doc. 16). For the reasons explained below, the court will grant KCI's motion in its entirety and deny plaintiffs' motion.
Beginning in July of 2001, several of plaintiffs' debts were assigned to KCI for collection. KCI attempted to collect those debts by sending letters and calling plaintiffs' residence. On March 21, 2003, plaintiffs sent a letter to KCI that referenced "All Accounts." The letter directed KCI to "CEASE AND DESIST all attempts to collect the above debt" (emphasis in original). When KCI received this letter from plaintiffs, KCI immediately ceased communicating with plaintiffs. KCI assigned plaintiffs' accounts a unique status code to prevent further collection calls or letters to plaintiffs. Thereafter, KCI did not contact plaintiffs regarding the accounts that predated the cease-and-desist letter.
On May 2, 2003, three more of plaintiffs' accounts were assigned to KCI for collection. Those accounts appeared to be new debts because the balances and/or dates of service for these three new debts were different than those on the accounts that predated plaintiffs' cease-and-desist letter. On May 2, 2003, KCI sent plaintiffs a validation-of-debt statement and a first collection notice for these three new accounts. On May 7 and 8, 2003, KCI placed automated telephone calls to plaintiffs' residence regarding these debts. Plaintiffs' complaint alleges that no one at plaintiffs' home answered the calls and no messages were left.
On May 13, 2003, two more of plaintiffs' accounts were placed with KCI for collection. Again, these debts appeared to be new ones because the balances and/or dates of service were different than prior debts that had been placed with KCI. On May 13, 2003, KCI sent a validation-of-debt statement and a first collection notice for these two new accounts. On May 12 and 13, 2003, KCI placed automated telephone calls to plaintiffs' residence regarding collecting on the five new accounts that had been placed with KCI since March 21, 2003. Again, plaintiffs' complaint alleges that no one at plaintiffs' home answered the calls and no messages were left.
Subsequently, KCI received a letter from attorney David Bryan dated May 13, 2003. In that letter, Mr. Bryan alleged that KCI's four telephone calls to plaintiffs in May of 2003 violated the FDCPA because plaintiffs had previously requested that KCI cease communications with them. The letter did not specify the accounts for which Mr. Bryan was representing plaintiffs.
When KCI received Mr. Bryan's May 13 letter, KCI placed a "no communication" status code on each of plaintiffs' accounts, including the five new accounts that were placed with KCI in May. KCI also responded to Mr. Bryan in a letter dated May 19, 2003. In that letter, KCI stated that it did not violate the FDCPA because KCI's attempted communications with plaintiffs in May of 2003 concerned the five accounts that were assigned to KCI after March 21, 2003. Since May 19, 2003, KCI has not communicated or attempted to communicate with plaintiffs regarding the five new accounts that were assigned to KCI in May of 2003.
On May 20, 2003, Mr. Bryan sent another letter to KCI. The letter stated: "Because [plaintiffs' March 21, 2003, cease-and-desist] letter states that you were not to contact them in reference to `all accounts' you may have had, under the FDCPA it does not matter what accounts you were calling them about, nor does it matter when you received the accounts for collection." Again, the letter was silent regarding the specific accounts for which Mr. Bryan was representing plaintiffs.
In June, July, and August of 2003, several new accounts were placed with KCI for collection from plaintiffs. KCI has communicated with plaintiffs regarding those new accounts.
Plaintiffs' complaint alleges that KCI violated the FDCPA, specifically 15 U.S.C. § 1692c(c), by continuing to communicate with plaintiffs after receiving plaintiffs' cease-and-desist letter. See Compl. (Doc. 1) at 4. The complaint also alleges that KCI violated the FDCPA, specifically 15 U.S.C. § 1692d(6), by telephoning plaintiffs on May 7, 8, 12, and 13. Compl. at 4. Lastly, the complaint alleges that KCI's written communications and telephone calls after May of 2003 amounted to deceptive and unconscionable conduct in violation of the KCPA, specifically Kan. Stat. Ann. §§ 50-626 and 50-627. Compl. at 5.
KCI now moves for summary judgment on all of plaintiffs' claims. KCI contends it did not violate § 1692c(c) because plaintiffs' cease-and-desist letter pertained only to the accounts that predated plaintiffs' letter, and KCI's subsequent attempts to contact plaintiffs pertained only to new accounts that were placed with KCI in May, June, July, and August of 2003. KCI also contends that the four telephone calls it placed to plaintiffs did not constitute harassment in violation of § 1692d(6). Further, KCI contends its conduct did not amount to deceptive or unconscionable conduct in violation of the KCPA.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.), cert. denied, 537 U.S. 816, 123 S.Ct. 84, 154 L.Ed.2d 20 (2002). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Wright ex rel. Trust Co. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (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 demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing 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 Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Mitchell v. City of Moore, 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Adams, 233 F.3d at 1246.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut"; rather, it is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).
For the reasons explained below, the court agrees with KCI that it is entitled to summary judgment on all of plaintiffs' claims. The plain language of the FDCPA does not prohibit a debt collector from communicating with a consumer regarding future debts even if the debt collector receives a cease-and-desist letter from the consumer that can arguably be read as a request to cease communications regarding all currently existing as well as future debts. Further, the fact that KCI placed four telephone calls to plaintiffs over the course of seven days without leaving a message does not, as a matter of law, constitute harassment under the FDCPA. To the extent that plaintiffs now seek to assert a claim that KCI violated another provision of the FDCPA, specifically 15 U.S.C. § 1692c(a)(2), by communicating directly with plaintiffs after KCI received notice that plaintiffs were represented...
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