Williams v. Nat'l Credit Adjusters, LLC

• Court: U.S. District Court — Eastern District of Missouri
• Writing for the Court: CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
• Decision Date: 16 November 2015
• Docket Number: No. 4:14CV267 CDP,4:14CV267 CDP
• Citation: Williams v. Nat'l Credit Adjusters, LLC, No. 4:14CV267 CDP (E.D. Mo. Nov 16, 2015)
• Parties: CALVIN WILLIAMS, Plaintiff, v. NATIONAL CREDIT ADJUSTERS, LLC, Defendant.

CALVIN WILLIAMS, Plaintiff, v. NATIONAL CREDIT ADJUSTERS, LLC, Defendant.

No. 4:14CV267 CDP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

November 16, 2015

MEMORANDUM AND ORDER

Calvin Williams obtained a $500 personal loan from Castle Payday Loans in April 2013. In August 2013, National Credit Adjusters, LLC ("NCA"), contacted Williams to collect on the debt. During the course of this collection effort, Williams and NCA set up a modified repayment plan, and NCA thereafter attempted to collect on the modified plan. In this action, Williams claims that the tactics used by NCA in its attempt to collect the debt violated the Missouri Merchandising Practices Act (MMPA) and the Federal Debt Collection Practices Act (FDCPA). NCA now moves for summary judgment on the claims. I will deny the motion.

The FDCPA prohibits debt collectors from engaging "in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. The FDCPA also prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt," 15 U.S.C. § 1692e; as well as the use of "unfair or unconscionable means" to collect a debt, 15 U.S.C. § 1692f. The MMPA makes unlawful "[t]he act, use or employment . . . of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce." Mo. Rev. Stat. § 407.020.1. Under the MMPA, "[m]erchandise" includes "any objects, wares, goods, commodities, intangibles, real estate or services." Mo. Rev. Stat. § 407.010.4. The protections of the MMPA apply to loan collection practices inasmuch as such practices are "in connection with" the "sale" of a loan. Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 415-16 (Mo. banc 2014).

In this action, Williams claims that NCA violated the MMPA and FDCPA by misrepresenting its authority to resolve or collect on the original debt; engaging in threatening and harassing conduct in its communications regarding debt collection; continuing to contact him at work despite his request that such calls stop; attempting to directly contact him despite its knowledge that Williams was represented by legal counsel in relation to NCA's debt collection efforts; and failing to meaningfully disclose its identity when calling him after he filed thislawsuit. NCA concedes that these acts would violate the law if they were true. It argues, however, that Williams fabricated the circumstances giving rise to these claims and that no reasonable jury could believe Williams' stories. Arguing that the issues of fact in this case are therefore not "genuine," NCA contends that it is entitled to judgment as a matter of law on Williams' claims. I am not convinced.

SUMMARY JUDGMENT STANDARD

When considering a motion for summary judgment, I must view the facts and inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). As the moving party, defendant must establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in his pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e).

At the summary judgment stage, courts do not weigh the evidence and decide the truth of the matter, but rather determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249. However, summary judgment may be appropriate "[w]hen opposing parties tell two different stories, one of which isblatantly contradicted by the record, so that no reasonable jury could believe it[.]" Scott v. Harris, 550 U.S. 372, 380 (2007). In such circumstances, the mere existence of some alleged factual dispute will not serve to defeat summary judgment; instead, the factual dispute must be "genuine." Id.

BACKGROUND¹

Plaintiff Calvin Williams obtained a personal loan from Castle Payday Loans in April 2013. NCA began collection efforts on the loan in August 2013.²

Victor Perez, an NCA collection agent, spoke with Williams on August 7, 2013, and explained that, given Williams' failure to pay on the loan, Castle Payday wanted to take a more aggressive approach to collect on the debt and sold Williams' account for collection.³ Perez told Williams that $705 was owed on the loan.⁴ Through a series of telephone calls between Williams and Perez that same date, arrangements were made for Williams to make installment payments totalinga discounted amount of $605, which Perez represented would take care of the debt. Perez advised Williams that he would need to set up a new payment plan with NCA immediately in order to obtain the $100 discount.⁵

Perez and Williams exchanged numerous telephone calls regarding the status of the debt and setting up arrangements for Williams to pay it off.⁶ Perez called Williams on his cell phone and on his workplace phone. Williams likewise called Perez from both his cell phone and from his workplace phone. On August 24, Perez informed Williams that a recent payment failed to go through and that he (Perez) would "unfortunately" have to make a "recommendation to proceed further with collection activity."⁷ Perez advised Williams to provide updated debit/credit card information "real quick . . . in order to make sure we stop recourse."⁸ Williams thereafter requested from "Mike," an NCA manager, that he be permitted to work with another collection agent given Perez's "pushy" nature of calling multiple times every day. Mike set up a new payment plan for Williams, but Perez continued as the agent on Williams' account.⁹ Telephone calls thereafter continued between Williams and Perez. Williams successfully made a payment on his account in September 2013.¹⁰ He did not make his scheduled payment in October2013, and he continues to owe money related to the loan.¹¹

Williams has presented evidence that beginning in October 2013 and continuing through February 2014, he received voicemail messages on his cell phone from persons identifying themselves as representatives of NCA, including calls from a person identifying himself as Victor Perez.¹² The caller ID on Williams' phone showed that the calls were from an "unknown" number.¹³ Some of these calls were laced with profanity, racial slurs, threats of arrest and imprisonment for failure to pay on the debt, and threats in response to litigation. Beginning again in June 2014, Williams received voicemail messages on his cell phone from an unknown number. The messages were again profane and included vile racial slurs, but did not refer to Williams' debt.¹⁴ Williams received other calls on his cell phone in June 2014 from telephone numbers identified through caller ID as being associated with NCA, but there were no voicemail messages from these calls.¹⁵

Williams contends that, following his receipt of the first inappropriate voicemail message, he instructed NCA during a telephone conversation to no longer call him at work. NCA denies that Williams gave any such oral instruction.Williams later instructed NCA by letter dated December 11, 2013, to not contact him at work.¹⁶ Williams claims that he nevertheless continued to receive calls from NCA, and specifically, the calls described above.

NCA argues that the harassing and threatening voicemail messages were fabricated and orchestrated by Williams and were not originated by NCA or any of its employees, agents, or associates. As evidence, NCA points to audio recordings of three calls made in December 2013 and January 2014 that it contends originated from Williams' workplace and were directed to NCA during which unidentified persons requested or obtained the name of the NCA representative who answered the call.¹⁷ NCA further contends that some of the offensive messages received by Williams occurred within minutes of these calls and were received on his cell phone from an unknown number.¹⁸ The person(s) leaving these offensive messages identified themselves by the name of the NCA representative given in response to earlier calls from Williams' workplace.¹⁹

To the extent the caller who left some of these offensive messages identified himself as Victor Perez, NCA points to noticeable differences regarding the toneand quality of Perez's actual voice when compared to the voice attributed to him in these calls. NCA raises this same contention in relation to another NCA representative as well, Rachel Wilson-Banks. In addition to arguing that the voices are "obviously" dissimilar, NCA presents the reports of audio and voice comparison experts who have concluded there to be "probable elimination" between the voices - that is, that the voices attributed to Perez and Wilson-Banks in the offensive calls are not their true voices.²⁰

To the extent that the caller ID feature on Williams' cell phone showed the offensive calls to originate from unknown numbers or from numbers associated with NCA, NCA contends that Williams was familiar with "spoofing" whereupon calling data is manipulated by a user to show a telephone call coming from a number other than the actual telephone number assigned to the device making the call. NCA also contends that Williams was familiar with other technology that permits a user to disguise his/her voice on telephone calls.²¹ Finally, NCA has employed another expert who submitted a report regarding the unconventional method by which the offensive messages were stored on Williams' cell phone.²²

NCA argues that the timing of the...