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Gray v. Amsher Collection Services, Inc.

United States District Court, D. Maryland

May 15, 2019

JIM GRAY, Plaintiff,


          Paula Xinis United States District Judge.

         Pending before the Court is Defendant Amsher Collection Services, Inc. (“Amsher”)'s motion for summary judgment. ECF No. 19.[1] The motion is fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the reasons that follow, the Court denies in part and grants in part Amsher's motion.

         I. Background

         In 2012, Plaintiff Jim Gray closed his account with T-Mobile USA, Inc. (“T-Mobile”). ECF No. 19-5 at 24. However, according to T-Mobile, Gray had two additional T-Mobile accounts, referred to here as the -8476 Account and the -7782 Account. ECF No. 19-4 ¶ 4. Gray asserts that the additional accounts were opened fraudulently. See ECF No. 19-5 at 10; ECF No. 19-6 at 17.

         Indeed, at a time unknown to the Court, Gray's personal information was stolen. See ECF No. 2-1 at 9 (undated letter from the United States Office of Personnel Management stating that a cyber intrusion stole Gray's “Social Security Number and other personal information”).[2] The additional accounts each became delinquent. Id. ¶¶ 5, 8. In 2015, T-Mobile placed the -8476 Account with a third-party for collection. Id. ¶ 5. Eventually, Gray and T-Mobile entered into a Settlement Agreement that resolved the dispute over the -8476 Account without any admission of liability. ECF No. 19-4 at 5.

         In March 2017, T-Mobile placed the -7782 Account in collection status. ECF No. 19-4 ¶ 8. Gray disputed the debt with credit reporting agencies, and the agencies in turn notified Amsher of the dispute. ECF No. 19-6 ¶ 6. The day of notification, Amsher confirmed with T-Mobile that the debt was “due and owing.” Id. ¶ 7.

         Gray then called Amsher directly to dispute the debt. Id. ¶ 8. Although the -7782 Account had Gray's name, date of birth, and social security number, Gray informed Amsher that the account's Florida address did not match his Maryland address. ECF No. 19-6 at 17. The account also had an authorized user, Haj Malika (phonetic), whose name Gray did not recognize. Id. During the call, Amsher acknowledged that Gray believed the account was opened fraudulently. Id. However, the bulk of the call focused on whether the 2015 settlement agreement covered the -7782 Account. Id. Gray insisted that the settlement agreement resolved both debts, despite clear language on the face of the agreement that confined the settlement only to the -8476 Account. After speaking with Gray, Amsher marked the account as disputed. ECF No. 19-6 ¶ 9. One week later, Amsher ceased trying to collect the debt. Id. ¶ 11.

         These events adversely affected Gray's credit score, and several institutions denied him credit. In October 2017, Credit Acceptance denied Gray vehicle financing. ECF No. 19-5 at 19. In November 2017, Gray's application for bank credit was denied. ECF No. 2-1 at 6. Finally, in January 2018, Veterans United denied Gray a home loan prequalification. ECF No. 19-5 at 16. Gray alleges-although he does not submit evidence, via affidavit or otherwise-that the home loan was “needed as housing requirement for gaining custody” of his two children. ECF No. 15 at 2.

         In February 2018, Gray, proceeding pro se, filed suit against Amsher in the Circuit Court for Prince George's County, Maryland, alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and 18 U.S.C. § 875. ECF No. 2.[3] Amsher then removed the case to this Court, and, after Gray amended his Complaint, Amsher moved for summary judgment. ECF Nos. 1, 15, 19.

         II. Standard of Review

         Summary judgment is appropriate when the Court, viewing the evidence in the light most favorable to the non-moving party, finds no genuine disputed issue of material fact, entitling the movant to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). “A mere scintilla of proof . . . will not suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). Importantly, “a court should not grant summary judgment ‘unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances.'” Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994) (quoting Phoenix Sav. & Loan, Inc. v. Aetna Casualty & Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967)). Where the party bearing the burden of proving a claim or defense “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, ” summary judgment against that party is likewise warranted. Celotex, 477 U.S. at 322.

         Although the discovery period has not closed, Gray did not file an affidavit pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. The purpose of a Rule 56(d) affidavit is to ascertain what additional discovery is needed for the non-movant to challenge adequately a summary judgment motion. See Fed. R. Civ. P. 56(d). “The Fourth Circuit places ‘great weight' on the affidavit requirement.” Nautilus Ins. Co. v. REMAC Am., Inc., 956 F.Supp.2d 674, 683 (D. Md. 2013) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). However, non-compliance may be excused “if the nonmoving party has adequately informed the district court that the motion is premature and that more discovery is necessary.” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002). Courts place greater weight on the need for discovery “when the relevant facts are exclusively in the control of the opposing party.” Id. (quoting 10B Wright, Miller & Kane, Federal Practice & Procedure § 2741, at 419 (3d ed. 1998)) (internal quotation marks omitted).

         Gray did not file a formal Rule 56(d) affidavit, but he has identified relevant, particular information that he could receive through further discovery. ECF No. 21 at 1-2. For example, Gray has alerted the Court that he seeks billing records for the -7782 Account, which may demonstrate that Gray did not personally incur the debt. Id. at 2. Thus, the Court will permit further discovery on the surviving claims, potentially to include a third-party subpoena on T-Mobile. See Chaplick v. Mao, No. TDC-13-2070, 2016 WL 4516061, at *4 (D. Md. Aug. 25, 2016) (approving of further discovery and a second set of summary judgment motions after first motions were denied).

         III. ...

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