Zamos v. Asset Acceptance, LLC

Decision Date17 March 2006
Docket NumberNo. 5:05CV941.,5:05CV941.
Citation423 F.Supp.2d 777
PartiesDavid ZAMOS II, Plaintiff, v. ASSET ACCEPTANCE, LLC, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

David Zamos, II, Kent, OH, pro se.

Boyd W. Gentry, Jeffrey C. Turner, Surdyk, Dowd & Turner, Dayton, OH, for Defendants.

AMENDED MEMORANDUM OPINION & ORDER

LIMBERT, United States Magistrate Judge.

The instant matter is before the Court on a motion for summary judgment filed by Defendants Asset Acceptance, LLC (Defendant Asset) and Gerald Burditt (Defendant Burditt). ECF Dkt. # 65. For the following reasons, the undersigned GRANTS Defendants Asset and Burditt's motion for summary judgment. Id.

I. FACTUAL AND PROCEDURAL HISTORY

On June 20, 2005, Plaintiff filed his first amended complaint against Defendant Asset alleging a plethora of claims. ECF Dkt. # 6. Plaintiff alleges that Defendant Asset violated various provisions of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692o, The Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x, and the Ohio Consumer Sales Practice Act (OCSPA), Ohio Revised Code §§ 1345.01-1345.13. Plaintiff further alleges that Defendant Asset committed civil conspiracy, intentional infliction of emotional distress, defamation, and invasion of privacy. Id. Plaintiff avers that in December 2004, Defendant Asset began attempting to collect monies from him for an alleged debt with SBC and up until Defendant Asset's attempts to collect, Plaintiff had no direct communication from SBC relating to the owing of a debt. Id. at 3. Plaintiff further alleges that Defendant Asset failed to communicate any information to him about the basis of his debt and he was denied credit as a result of Defendant Asset's reports of this debt to credit reporting agencies. Id. at 3-4, 9-11. Plaintiff avers that Defendant Asset failed to communicate information about the debt, reported him to credit reporting agencies in order to coerce him into paying the debt, charged "illegal, unconscionable, and prohibited" interest on the debt that Plaintiff did not owe, knowingly reported a false date of delinquency to the credit agencies, and failed to respond or provide any information to Plaintiff after he made inquiry and filed a notice of dispute of the alleged debt. Id. at 3-4.

On August 17, 2005, after obtaining permission from the Court, Plaintiff filed a "Supplemental Complaint" incorporating his first amended complaint's allegations and claims against Defendant Asset and adding claims against Defendant Burditt in his individual capacity. ECF Dkt. # 18. Plaintiff alleged that Defendant Burditt was an attorney and "debt collector" for Defendant Asset who had violated 15 U.S.C. § 1692e(5), intentionally inflicted emotional distress upon Plaintiff, invaded Plaintiff's privacy, violated 15 U.S.C. § 1692c et seq. by contacting a third party in connection with a debt involving Plaintiff, disclosed Plaintiff's private information to those third parties, and threatened to take action that could not be taken in violation of 15 U.S.C. § 1692e(5). Id. at 2-4.

On January 5, 2006, Defendants Asset and Burditt filed the instant motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF Dkt. # 65. On February 2, 2006, just days before his response to the motion for summary judgment was due, Plaintiff filed a motion for an "emergency" extension for his response time, which this Court denied on the same date. ECF Dkt. # s 80, 81. On February 6, 2006, Plaintiff filed his response and on February 20, 2006, Defendants Asset and Burditt filed a reply. ECF Dkt. # s 82, 90.

II. STANDARD OF REVIEW

The function of summary judgment is to dispose of claims without trial when one party is unable to demonstrate the existence of a factual dispute which, if present, would require resolution by a jury or other trier of fact. Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (6th Cir.1982). Rule 56(c) of the Federal Rules of Civil Procedure governs summary judgment motions and provides, in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to the 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.

FED.R.CIV.P. 56(C). In ruling on a motion for summary judgment, a court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir.2001). A court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists by informing the court of the basis for the motion, and must identify the 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." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting FED. R. CIV. P. 56©)). This initial burden can be discharged by the moving party by showing that the nonmoving party has failed to establish an essential element of the nonmoving party's case for which he or she bears the ultimate burden of proof at trial. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Morales v. Am. Honda Motor Co., Inc., 71 F.3d 531, 535 (6th Cir.1995).

If the moving party meets this burden, then the nonmoving party must take affirmative steps to avoid the entry of a summary judgment. See FED. R. CIV. P. 56(e). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; McLean v. 988011 Ont., Ltd., 224 F.3d 797, 800 (6th Cir.2000). "Although the nonmoving party's evidence in opposition to summary judgment need not be of the sort admissible at trial, he must employ proof other than his pleadings and own affidavits to establish the existence of specific triable facts." Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990).

A movant is then entitled to summary judgment if the non-movant, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case. See Spells v. Cuyahoga Cmty. Coll., 889 F.Supp. 1023, 1026 (N.D.Ohio 1994). The district court does not have a duty to consider evidence in opposition to a summary judgment motion that the non-movant did not bring forth in opposition to the motion. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir.1996). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; Nat'l Satellite Sports, 253 F.3d at 907.

III. ANALYSIS
A. FDCPA CLAIMS

Defendants first move for summary judgment on Plaintiffs claims that they violated the FDCPA. ECF Dkt. # 65 at 3-5. Defendants' brief is lacking, but it appears that they assert that the Fair Credit Reporting Act (FCRA) preempts the FDCPA and the FDCPA does not provide a private cause of action for furnishing false information to a credit reporting agency. Defendants further contend that even if Plaintiff could legitimately maintain these claims, he nevertheless fails to provide evidence to support his claims under the subsections of the statute under which he sues. Id. at 4. Defendants elaborate no further on these conclusory assertions.

The Court finds that Defendants have failed to show as a matter of law that the FCRA preempts the FDCPA. Defendants offer no legal support for such a conclusion and merely assert that this claim is preempted by the FCRA "[a]s discussed more fully below." ECF Dkt. # 65 at 4. While Defendants provide legal support and argument as to preemption of Plaintiff's state law claims by the FCRA in a later section of their motion, they do not provide any further mention of the FCRA's alleged preemption of another federal statute such as the FDCPA. Accordingly, the Court DENIES Defendants' motion for summary judgment on this assertion.

1, 15 U.S.C. § 1692c(b)

Besides unsuccessfully asserting that these provisions of the FDCPA are preempted by the FCRA, Defendants also move for summary judgment by contending that the FDCPA does not provide a cause of action for furnishing false information to a credit reporting agency. ECF Dkt. # 65 at 4. Again, however, Defendants fail to provide much support for such a conclusion and fail to offer any analysis beyond stating that the FDCPA "does not provide a cause of action for furnishing false information to a credit reporting agency." ECF Dkt. # 65 at 4.

In his first amended complaint, Plaintiff contends that Defendants violated 15 U.S.C. § 1692c(b) by communicating his alleged liability directly to various third parties, including "[v]arious members of Defendants' community, including various businesses Defendant has been alleged to have contracted with in the past". ECF Dkt. # 6 at 13. However, in his response to Defendants' motion for summary judgment, Plaintiff mentions only a communication by Defendants with Mr. Osiecki, a representative of his former landlord, in conjunction with this claim. Because Plaintiff has failed to provide the Court with any other information relating to other alleged entities or individuals with whom Defendan...

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