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Romano v. Williams & Fudge

December 2, 2008

RUBEN ROMANO, PLAINTIFF,
v.
WILLIAMS & FUDGE, INC., DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

Memorandum Opinion on Summary Judgment

I. Introduction

This is an action for violation of the Fair Debt Collection Practices Act (FDCPA) pursuant to 15 U.S.C. § 1692. Plaintiff, Reuben Romano, alleges that defendant, Williams & Fudge, Inc., violated 15 U.S.C. § 1692c(b), when it contacted by telephone plaintiff's estranged father about a debt plaintiff allegedly owed and left a message with him. Defendant denies those assertions and argues that the telephone conversation did not violate the FDCPA and that any violation was an unintentional bona fide error pursuant to 15 U.S.C. § 1692k(c). Pending before this Court is plaintiff's motion for partial summary judgment on liability (doc. no. 35) and defendant's motion for summary judgment (doc. no. 39). The Court finds that defendant violated the FDCPA as a matter of law, and therefore will grant partial summary judgment in favor of plaintiff for violations of the FDCPA, and the Court will deny defendant's motion for summary judgment in its entirety.

II. Summary Judgment Standards

"Rule 56 of the Federal Rules of Civil Procedure 'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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.'" Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Summary judgment is appropriate "'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." Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof."), citing Anderson and Celotex Corp..

In deciding a summary judgment motion, a court must view the facts in the light most favorable to, draw all reasonable inferences, and resolve all doubts, in favor of the non-moving party. Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir. 1999). Further, the court must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).

III. Background Facts

Defendant alleges that plaintiff incurred a debt within the FDCPA, namely tuition owed to Duquesne University. Defendant operates a debt collection agency within the FDCPA. While defendant contends that Duquesne's placement information indicated that the alleged debtors name was Reuben J. Romano, plaintiff denies that contention and states that defendant's account notes indicate his name is Reuben J. Romano, Jr., and further denies that he had a delinquent account. In any event, on March 31, 2008, Richard Edkins, a collector with defendant, telephoned a phone number obtained through skip tracing, which turned out to be plaintiff's estranged father and disclosed plaintiff's alleged debt to plaintiff's father. Edkins left a message with plaintiff's father asking him "[I]f you do hear from him, just let him know that we're trying to get in touch with him." The transcript of the phone call between plaintiff's estranged father and Edkins is as follows: (4:39 minute recording)

MR. ROMANO: Hello.

MR. EDKINS: Yeah, hi. Is Ruben there, please?

MR. ROMANO: Yeah, this is him.

MR. EDKINS: Hi, Ruben Romano. My name is Rick. I'm calling from Williams & Fudge, on behalf of Duquesne University and I'm calling today regarding an attempt to collect a debt. This call is recorded for quality assurance.

MR. ROMANO: Do what?

MR. EDKINS: I'm calling from Williams & Fudge.

Did you go to Duquesne University?

MR. ROMANO: Hold on. Wait a minute.

One second. (Pause) All righty. Now, what's -- now what's going on?

MR. EDKINS: Okay. And You're Mr. Ruben J. Romano?

MR. ROMANO: Yeah.

MR. EDKINS: Okay. All right. I'm calling from Williams & Fudge on behalf of Duquesne University. And they've just recently given us this account that was billed on -- for $418.27.

MR. ROMANO: Oh, $18.

MR. EDKINS: $418.27.

MR. ROMANO: $418.27.

MR. EDKINS: Yes, sir.

MR. ROMANO: And what -- and -- and this is from --

MR. EDKINS: Duquesne University.

MR. ROMANO: Duquesne?

MR. EDKINS: Yes, sir.

MR. ROMANO: Duquesne University.

Okay. And when was this?

MR. EDKINS: They just sent it to us on -- I think this is on 3/21. Could be some tuition and fees. Could be some type of student account.

MR. ROMANO: And what's -- what -- where's these -- what was this for?

MR. EDKINS: It could be, like I said, for tuition and fees, a student account, some type balance that was owed maybe to the -- you know, the library, the bookstore, anything such as that.

What happens is, they just sent it to us saying there is an outstanding balance and their attempt ...


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