Webb v. Premiere Credit of N. Am., LLC

• Decision Date: 22 October 2012
• Docket Number: Case No. 12-CV-2001 JAR/KGS
• Parties: DAVID WEBB, and MELISSA WEBB, Plaintiffs, v. PREMIERE CREDIT OF NORTH AMERICA, LLC, Defendant.
• Court: U.S. District Court — District of Kansas

DAVID WEBB, and MELISSA WEBB, Plaintiffs,

v.PREMIERE CREDIT OF NORTH AMERICA, LLC, Defendant.

Case No. 12-CV-2001 JAR/KGS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Date: October 22, 2012

MEMORANDUM AND ORDER

Plaintiffs David and Melissa Webb bring this action against Defendant Premier Credit of North America, LLC ("Premiere Credit"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA").¹ This case comes before the Court on Defendant's Motion for Summary Judgment (Doc. 40), which includes a request for attorneys' fees and costs. The motion is fully briefed and the Court is prepared to rule. For the reasons stated below, the Court grants summary judgment but denies Defendant's request for attorneys' fees and costs.

I. Summary Judgment Standard

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."² In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.³ "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that areasonable jury could return a verdict for the nonmoving party."⁴ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁵ An issue of fact is "genuine" if "'the evidence is such that a reasonable jury could return a verdict for the non-moving party.'"⁶

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁷ In attempting to meet this 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 a lack of evidence for the other party on an essential element of that party's claim.⁸

Once the movant has met this initial burden, the burden shifts to the nonmoving party to show that there is a genuine issue for trial.⁹ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.¹⁰ 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 findfor the nonmovant."¹¹ To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."¹² Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹³ The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹⁴

Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹⁵ In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."¹⁶

II. Uncontroverted Facts

The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff. Prior to this lawsuit, Plaintiff Melissa Webb incurred a debt for a student loan to ITT Tech. Upon default of the debt with the creditor, the debt was transferred to Defendant, Premiere Credit, for collection purposes. Defendant initiated 150 telephone callsbetween June 1, 2011, and January 4, 2012, to Melissa Webb to discuss her debt. Calls often took place on continuous days with as many as six calls per day. Plaintiffs received phone calls between 8:00 a.m. and 9:00 p.m. on all days except Sunday. Plaintiff David Webb did not receive any phone calls from Defendant and never spoke with Defendant.

Plaintiffs maintained a call log for some of the calls they received that included the date of the calls, the time of the calls, and the telephone number displayed on the caller ID. The call log lists calls from different phone numbers and creditors. Plaintiffs did not record all calls from Defendant on their call log. Plaintiffs neither called Premiere Credit nor communicated in writing to Premiere Credit. Plaintiffs never paid Premiere Credit. Premiere Credit indicated on its own call logs that some calls were withdrawn, but those logs do not distinguish between withdrawn calls that caused Plaintiffs' telephone to ring and those that did not.

Plaintiffs claim that they received several phone calls per day over a number of months from Defendant, causing them emotional distress, stress, and anxiety. Neither Plaintiff received medical treatment, psychological treatment, or medication for their alleged damages. Plaintiffs testified that they received telephone calls from other collection agencies in addition to Premiere Credit, and that these other calls could have contributed to their emotional distress.

III. Discussion

Plaintiffs contend that Defendant violated the FDCPA, specifically 15 U.S.C. §1692d(5). Plaintiffs further claim that, as a result of Defendant's FDCPA violation, they are entitled to actual damages under 15 U.S.C. § 1692k(a)(1). Defendant argues that there is no evidence to establish that it intended to harass, abuse, or annoy Plaintiffs in seeking to collect MelissaWebb's debt, and that there is no evidence of emotional distress sufficient to establish that actual damages are warranted. Defendant also seeks attorneys' fees and costs under the statute.

A. 15 U.S.C. § 1692d(5)

15 U.S.C. § 1692d provides that "[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." Further, § 1692d(5) prohibits the debt collector from "[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number."

Defendant claims that there is no evidence to show that Defendant harassed, abused, or annoyed Plaintiffs by making a high volume of phone calls in violation of the FDCPA. Defendant also argues that Plaintiffs fail to produce any evidence that Defendant engaged in other egregious conduct that would give rise to a finding of intent to annoy, abuse, or harass. Plaintiffs allege that a material issue of fact remains as to the number of times the Defendant caused the Plaintiffs' telephone to ring and whether it was done with intent to annoy, abuse or harass.

In deciding a motion for summary judgment, the Court considers the volume and pattern of the calls by the debt collector to the plaintiff.¹⁷ A high volume of calls, even daily calls, unaccompanied by other egregious conduct is insufficient to raise a triable issue of fact for the jury.¹⁸ Other egregious conduct may include calling after immediately hanging up, calling multiple times in a single day, calling places of employment, calling family or friends, calling atodd hours, or calling after being asked to stop.¹⁹ For example, in Tucker v. CBE Group, Inc., 57 calls were made by the debt collector to the plaintiff over an undetermined period of time, including seven calls in one day.²⁰ The Middle District of Florida found this to be insufficient to constitute a triable issue of fact because the defendant never spoke to the plaintiff, was never asked to stop calling, and never called back the same day after leaving a message.²¹ Similarly, in Saltzman v. I.C. Systems, Inc., ²² the debt collector unsuccessfully called the plaintiff 20 to 50 times in one month.²³ The court granted summary judgment for the defendant, holding that difficulty reaching the plaintiff is not the same as intent to harass.²⁴

In this case, the Court finds there is no evidence of an unacceptable pattern of calls. The record lacks any indicia of the type of egregious conduct that would raise an issue of triable fact when coupled with a high call volume. Plaintiffs argue that a genuine issue of fact remains as to the number of times Defendant caused the telephone to ring. They point to evidence that telephone calls were initiated up to six times per day on consecutive days in November and December of 2011, as evidence of an intent to annoy, abuse, or harass. However, as stated in Carman, there must be other evidence of egregious conduct to evince an intent to annoy, abuse, or harass.²⁵ Here, even though the number of initiated calls appears high between November andDecember, without the presence of any other egregious conduct, no genuine issue of fact remains as to whether the conduct was done with the intent to annoy, abuse, or harass. Viewing the evidence in the light most favorable to Plaintiffs, Defendant initiated 150 telephone calls. But since a high volume of calls without other egregious conduct does not constitute a triable issue of fact on intent under § 1692d(5), Plaintiff's focus on the volume of calls is unavailing.

Plaintiffs also point to their testimony that Defendant's telephone calls caused them stress and anxiety, but in Carman, this Court held "[Plaintiff's] opinion regarding whether the calls were harassing is not evidence of [Defendant's] intent."²⁶ Without evidence of additional egregious conduct, there is no genuine issue of material fact as to whether Defendant had the intent to annoy, abuse, or harass. It is uncontroverted that Defendant's intent in contacting Plaintiffs was to discuss the debt owed. Calls never took place on Sunday and did not occur during unacceptable hours. Plaintiffs allege that more than one voice mail message may have been left for Melissa Webb, but there is no evidence that Defendant called back on the same day that voice message was left. For example, Defendant's call...