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Webster v. ACB Receivables Mgmt., Inc.

United States District Court, D. Maryland

April 22, 2014

Sarah Webster, Plaintiff
v.
ACB Receivables Management, Inc., Defendant

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[Copyrighted Material Omitted]

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For Sarah Webster, Plaintiff: Mitchel Erik Luxenburg, Luxenburg and Levin LLC, Beachwood, OH.

For ACB Receivables Management, Inc., Defendant: Steven D Janel, LEAD ATTORNEY, Law Offices of Steven D Janel, Pennington, NJ.

OPINION

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Memorandum Opinion

Susan K. Gauvey, United States Magistrate Judge.

Plaintiff, Sarah Webster, by her attorney, Mitchel E. Luxenburg, filed this action against defendant ACB Receivables Management, Inc. (" ACB" ) alleging that defendant violated the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692, et seq., by attempting to collect a debt owed by Ms. Webster. Plaintiff seeks statutory damages in the amount of

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$1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A). This case has been referred to the undersigned magistrate judge by consent of the parties pursuant to 28 U.S.C. § 636(c) and Local Rule 301.4 (D. Md. 2011).

The parties have filed cross-motions for summary judgment.[1] Briefing is complete. A telephone hearing was held on April 1, 2014. For the reasons set forth below, the Court GRANTS Ms. Webster's motion for summary judgment as to Counts I, II, and III and DENIES the motion as to Count IV. The Court GRANTS ACB's motion for summary judgment as to Count IV but DENIES the same as to Counts I, II, and III. Ms. Webster has also filed a motion to strike an exhibit attached to ACB's briefs filed in support of its motion for summary judgment. The Court DENIES Ms. Webster's motion to strike.

I. FACTUAL BACKGROUND

The parties largely agree on the facts, with only one notable exception. The parties dispute the date that ACB initially contacted Ms. Webster and informed her of its attempts to collect the debt. Defendant maintains that the initial communication took the form of an FDCPA-compliant " dunning" letter that the collection agency sent to Ms. Webster on November 4, 2010. (Def.'s Mot. Summ. J. & Opp. Pl.'s Mot. Summ. J., ECF No. 44, at 15).[2]

Plaintiff disagrees, asserting instead that the collection agency initially notified her of the outstanding debt indirectly, by way of ACB's reporting the debt to credit reporting agencies. (Pl.'s Rep. Mem., ECF No. 47, at 18-19).

Ms. Webster testified that she reviewed her credit report in July of 2012 and saw a debt that was being collected and reported by ACB, causing her to contact the agency in an attempt to resolve this mark on her credit history. (Pl.'s Mem. Supp. Pl.'s Mot. Summ. J., ECF No. 36-1, at 1; Def.'s Mot. Summ. J. & Opp. Pl.'s Mot. Summ. J., ECF 44, at 2). Defendant does not dispute this entry on the credit report nor Ms. Webster's testimony as to the date of her discovery of the debt and collection efforts on her credit report.

On July 23, 2012, Ms. Webster mailed a letter to ACB wherein she requested that the agency provide " validation" of the debt. (Pl.'s Mem. Supp. Pl.'s Mot. Summ. J., ECF No. 36-1, at 1; Def.'s Mot. Summ. J. & Opp. Pl.'s Mot. Summ. J., ECF No. 44, at 2). In response to this request, ACB mailed a letter dated August 29, 2012, to Ms. Webster requesting additional information to verify her identity. (Pl.'s Mem. Supp. Pl.'s Mot. Summ. J., ECF No. 36-1, at 1; Def.'s Mot. Summ. J. & Opp. Pl.'s Mot. Summ. J., ECF No. 44, at 2). There is no dispute that this letter did not contain verification of the debt. (Pl.'s Mem. Supp. Pl.'s Mot. Summ. J., ECF No. 36-1, at 1; Def.'s Mot. Summ. J. & Opp. Pl.'s Mot. Summ. J., ECF No. 44, at 2).

Plaintiff responded via letter dated September 2, 2012, requesting that ACB

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" cease and desist" communication with her. (Pl.'s Mem. Supp. Pl.'s Mot. Summ. J., ECF No. 36-1, at 1; Def.'s Mot. Summ. J. & Opp. Pl.'s Mot. Summ. J., ECF No. 44, at 2). Lucy Hankinson, an ACB employee, received this letter on September 12, 2012, at 11:27 a.m. (Pl.'s Mem. Supp. Pl.'s Mot. Summ. J., ECF No. 36-1, at 1; Def.'s Mot. Summ. J. & Opp. Pl.'s Mot. Summ. J., ECF No. 44, at 2). Ms. Hankinson acknowledged receipt and review of the letter, but in her affidavit stated that she " simply failed to see" the cease and desist request, instead mailing Ms. Webster an additional request for identifying information and forwarding her file to Darrell Cole, an ACB debt collector. (Decl. of Lucy Hankinson, ECF No. 49-1, 2). Three and one-half hours later (4:41 p.m.), ACB received verification from Experian, a credit reporting agency, that Ms. Webster was indeed the person from whom ACB was attempting to collect the debt. (Pl.'s Mem. Supp. Pl.'s Mot. Summ. J., ECF No. 36-1, at 1; Def.'s Mot. Summ. J. & Opp. Pl.'s Mot. Summ. J., ECF No. 44, at 2). Mr. Cole acknowledged receipt of the file that evening, but he testified in his affidavit that due to a " momentar[y] distraction" or a " misread[ing] of the screen," manually overrode a computer code that was intended to prevent further collection activities on Ms. Webster's file, generating an additional request for payment that was sent the following day, September 13, 2012. (Decl. of Darrell Cole, ECF No. 49-2, 2).

II. STANDARD OF REVIEW

Summary judgment under Rule 56 is appropriate when " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute remains " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2508, 91 L.Ed.2d 202 (1986). A material fact is one " that might affect the outcome of the suit under the governing law." Id. The party moving for summary judgment has the burden of demonstrating the absence of any genuine issue of material fact. Fed.R.Civ.P. 56(a); Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987).

When considering a motion for summary judgment, the court views all facts and makes all reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The non-moving party must show that specific, material facts exist to create a genuine, triable issue. Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). On those issues for which the nonmoving party has the burden of proof, it is his or her responsibility to oppose the motion for summary judgment with affidavits or other admissible evidence specified in the rule. Fed.R.Civ.P. 56(c); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993). If a party fails to make a showing sufficient to establish the existence of an essential element on which that party will bear the burden of proof at trial, summary judgment is proper. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

The role of the court at the summary judgment stage is not to " weigh the evidence and determine the truth of the matter," but rather to determine whether " there are any genuine factual issues that properly can be resolved only by a finder of fact because they may be resolved in favor of either party." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. The issue is " whether the evidence presents a sufficient disagreement to require submission to a

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jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.

The fact that parties file cross-motions for summary judgment does not generally relieve the court of its obligation to determine whether there are disputes as to material fact which prevents entry of judgment as a matter of law. Bryant v. Better Bus. Bureau of Greater Md., Inc., 923 F.Supp. 720, 729 (D. Md. 1996) (" [C]ross-motions for summary judgment do not automatically empower the court to dispense with the determination of whether questions of material fact exist." ) (quoting Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert denied, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983)). When cross-motions for summary judgment demonstrate a basic agreement, however, concerning what legal theories and material facts are dispositive, they may be probative of the lack of a factual dispute. Id. (citing Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983)).

III. DISCUSSION

A. The Fair Debt Collection Practices Act

Congress enacted the FDCPA to curb abusive debt collection practices, to ensure that debt collectors who play by the rules are not competitively disadvantaged, and to provide a framework to facilitate consistent state action to protect consumers. 15 U.S.C. § 1692(e). Consonant with its purposes, the FDCPA regulates interactions between consumer debtors and debt collectors.[3] The FDCPA prohibits a wide range of untoward debt collection practices, such as making false representations as to a debt's character, amount, or legal status, § 1692e(2)(A); communicating with consumers at " unusual time[s] or place[s]," § 1692c(a)(1); the use of abusive language, § 1692d(1); and threats or actual violence, § 1692d(2).

The FDCPA is enforced through administrative action and private lawsuits. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577, 130 S.Ct. 1605, 1609, 176 L.Ed.2d 519 (2010). To prevail in a private action, the plaintiff must prove that " [he or she] has been the object of collection activity arising from consumer debt, (2) the defendant is a debt[] collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA." Stewart v. Bierman, 859 F.Supp.2d 754, 759-60 (D. Md. 2012) (citation omitted); see Sterling v. Ourisman Chevrolet of Bowie, Inc., 943 F.Supp.2d 577, 585 (D. Md. 2013). In the parties' motions for summary judgment, there is no dispute that Ms. Webster has been the object of collection activity arising from consumer debt and that ACB is a debt collector under the FDCA. The parties disagree as to whether ACB has violated the FDCPA, and, if so, whether the application

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of an affirmative defense absolves liability.

B. The Alleged FDCPA Violations

Both parties move the Court to grant summary judgment in their favor on all counts of the Complaint. Accordingly, the Court shall address each count in turn.

1. Count I: Defendant's Continued Communication

This count requires the Court to determine whether ACB violated the FDCPA and, if so, whether an affirmative defense applies. For the following reasons, the Court concludes that ACB violated the Act and that it is ...


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