Winberry v. UNITED COLLECTION BUREAU, INC.

• Decision Date: 17 March 2010
• Docket Number: Civil Action No. 1:09cv240-WHA.
• Citation: 697 F. Supp.2d 1279
• Parties: Martha WINBERRY & Jeffrey Winberry, Plaintiffs, v. UNITED COLLECTION BUREAU, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

697 F. Supp.2d 1279

Martha WINBERRY & Jeffrey Winberry, Plaintiffs, v. UNITED COLLECTION BUREAU, INC., Defendant.

Civil Action No. 1:09cv240-WHA.

United States District Court, M.D. Alabama, Southern Division.

March 17, 2010.

David Gerald Poston, Gary Wyatt Stout, Gerald A. Templeton, Michael Derek Brock, Walter Allen Blakeney, Brock & Stout, LLC, Enterprise, AL, for Plaintiffs.

Brent Gibson Grainger, John Winston Scott, Kimberly Wood Geisler, Scott Dukes & Geisler PC, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

W. HAROLD ALBRITTON, Senior District Judge.

I. INTRODUCTION

This case is before the court on a Motion for Summary Judgment filed by United Collection Bureau, Inc. (Doc. # 20), and a Motion to Strike Affidavit of Linda Bost, or in the Alternative, Affidavit Creates Issues of Material Facts (Doc. # 38), filed by the Plaintiffs.

The Plaintiffs filed their case in this court bringing claims against United Collection Bureau, Inc. for violation of the Fair Debt Collection Practices Act ("FDCPA") (Count I), the Telephone Consumer Protection Act (Count II, III), and Alabama state law claims of negligence (Count IV), negligence per se (V), and invasion of privacy (Count VI). Count I of the Complaint includes violations of several subsections of the FDCPA on behalf of each of the Plaintiffs.

United Collection Bureau, Inc. ("UCB") has moved for summary judgment as to all claims. UCB also moved to seal two exhibits provided in connection with the Motion for Summary Judgment, which the court granted.¹ In support of its Reply to the Winberrys' response to Summary Judgment, UCB offered additional deposition excerpts and a new affidavit.

The Winberrys have moved to Strike the affidavit offered by UCB, and have alternatively responded to that evidence. UCB also filed a response to that response.

For the reasons to be discussed, the Motion for Summary Judgment is due to be GRANTED in part and DENIED in part and the Motion to Strike is due to be DENIED.

II. SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing, or pointing out to, the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-324, 106 S.Ct. 2548.

Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

III. FACTS

The submissions of the parties establish the following facts, viewed in a light most favorable to the non-movant:

This case arises from telephone calls made to Jeffrey and Martha Winberry (collectively "the Winberrys") by United Collection Bureau, Inc. ("UCB") to collect on a debt of Jeffery Winberry. UCB is a debt collector. Agents of UCB, primarily Jim Johnson ("Johnson"), called the Winberrys on an unpaid debt owed by Jeffrey Winberry on a Sears credit card. The Winberrys currently reside in Oklahoma City, Oklahoma, but during the time period at issue in this case, lived in Ozark, Alabama.

UCB was provided the Winberrys's home address and telephone number by Citibank. The telephone number had been disconnected since 2007. A Lexis Nexis search was conducted to find the telephone number of a neighbor of the Winberrys. Johnson called a neighbor of the Winberrys, Linda Bost. There is some dispute as to what message was left with Linda Bost.

There is no dispute that Johnson called both Winberrys on their cellular telephones. It is also undisputed that Jeffery Winberry used coarse language and threats to Johnson during some of the calls. The court has been provided with account notes which reflect information about the calls. The Winberrys admit that the call notes reflect approximately 33 phone calls made to the Winberrys's cellular telephones, although they do not concede that there were only 33 calls placed. The calls were made beginning December 11, 2008 and ending January 12, 2008.

Martha Winberry has testified that she informed Johnson that she suffered from health ailments. Martha Winberry also testified that Johnson said she was responsible for the debt because she was married to Jeffery Winberry. On at least one occasion, Jeffery Winberry terminated the call with Johnson and Johnson immediately called back and left a message. Johnson Dep. at page 110: 19-25. The Winberrys's minor daughter also witnessed at least one of the calls. Johnson also noted that there were several refusals to pay the debt.

IV. DISCUSSION

The Winberrys have asserted federal and state law claims. The court turns first to the federal claims.

A. Fair Debt Collection Practices Act Claims

The Fair Debt Collection Practices Act ("FDCPA") was enacted by Congress "to eliminate abusive debt collection practices by debt collectors" and "to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). The Act provides a civil cause of action against any debt collector who fails to comply with the requirements of the Act. See 15 U.S.C. § 1692k(a). A debt collector can be held liable for an individual plaintiff's actual damages, statutory damages up to $1,000, costs, and reasonable attorney's fees. 15 U.S.C. § 1692k(a)(1)-(3). The FDCPA is a strict liability statute. Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 63 (2d Cir. 1993); In re Cambron, 379 B.R. 371, 374 (M.D.Ala.2007).

The Act, however, provides debt collectors with an affirmative defense called the "bona fide error" defense, which insulates them from liability even when they have failed to comply with the Act's requirements. Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352-1353 (11th Cir.2009). This affirmative defense is codified at 15 U.S.C. § 1692k(c), which provides that a debt collector may not be held liable under the FDCPA "if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." Id. A debt collector asserting the bona fide error defense must show by a preponderance of the evidence that its violation of the Act: (1) was not intentional; (2) was a bona fide error; and (3) occurred despite the maintenance of procedures reasonably adapted to avoid any such error. Edwards, 584 F.3d at 1353. The failure to meet any one of those three requirements is fatal to the defense. Id.

At the outset the court notes that it is has been difficult to navigate the briefs in support of and in opposition to the Motion for Summary Judgment because the claims argued by the Winberrys in their briefs are not completely consistent with the claims pled in the Complaint. According to the Winberrys's response to the Motion for Summary Judgment, they each are bringing claims for violation of the following provisions of the FDCPA: § 1692b(5), 1692c(b), § 1692d, § 1692e, § 1692e(2), § 1692e(5), § 1692e(10), § 1692e(11), and § 1692f. The court now turns to UCB's grounds for summary judgment as to those claims.

1. § 1692b(5)

The Winberrys have stated in their brief in response to the Motion for Summary Judgment that the mere fact that 20 calls were placed by a debt collection agency to a non-liable spouse is evidence that § 1692b(5) was violated. UCB contends that no claim for violation of § 1692b(5) is alleged in the Complaint, so that summary judgment must be granted on any claim asserted in the brief on the basis of a violation of that statutory section. Upon review of the Complaint filed in this case, the court agrees that while the Complaint specifically pleads violations of § 1692d, 1692e, and 1692f, it does not cite § 1692b generally, or any sub-section of § 1692b. Summary judgment is, therefore, due to be GRANTED as to any purported claim for violation of § 1692(b)(5). See Gilmour v. Gates, 382 F.3d 1312, 1314 (11th Cir.2004) (stating that a plaintiff may not amend the complaint through argument in a brief opposing summary judgment).

2. § 1692c(b)

The basis for the Winberrys's claim for violation of § 1692c(b) is that UCB requested a third party to deliver a message to the Winberrys. The Winberrys also invoke § 1692b as supporting their...