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Regan v. Law Offices of Edwin A. Abrahamsen & Associates

December 2, 2009

LISA L. REGAN, PLAINTIFF
v.
LAW OFFICES OF EDWIN A. ABRAHAMSEN & ASSOCIATES, P.C., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Yohn, J.

MEMORANDUM

Plaintiff, Lisa L. Regan, sues the Law Offices of Edwin A. Abrahamsen & Associates, P.C. ("EAA"), and Commonwealth Financial Systems, Inc. ("CFS"), seeking damages and other relief for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA" or the "Act"). Plaintiff alleges that EAA violated the Act by contacting her directly, by phone and in writing, after being informed that she was represented by counsel, and by placing collection calls to her parents' phone number. Plaintiff also alleges that this pattern of communications by EAA was harassing and abusive.*fn1 Defendants concede that at least some of EAA's communications violated the FDCPA but argue that they are not liable because they are entitled to the "bona fide error" defense set forth at 15 U.S.C. § 1692k(c). The parties have filed cross-motions for summary judgment, both of which are limited to the issue of defendants' liability. For the reasons that follow, the court will deny defendants' motion for summary judgment and will grant in part and deny in part plaintiff's cross-motion for summary judgment.

I. Factual Background

Defendant CFS, a debt collector, purchased two accounts claimed due by plaintiff ("Account 1" and "Account 2") and obtained a default judgment against plaintiff on each account in the Court of Common Pleas. (Pl.'s Counter-statement of Material Facts in Support of Her Cross-Mot. for Summ. J. ["Pl.'s Counterstatement"] ¶ 1; Defs.' Resp. to Pl.'s Statement of Materials Facts ["Defs.' Resp."] ¶ 1; Pl.'s Resp. to Defs.' Statement of Material Facts ["Pl.'s Resp."] ¶ 7.) The judgments ultimately were sent for collection to EAA, a law firm that focuses on the collection of consumer debt. (Pl.'s Counterstatement ¶¶ 1-2; Defs.' Resp. ¶¶ 1-2.)

In February 2007, attorney Thomas J. Bass sent EAA a letter advising that he represented plaintiff in connection with the judgments and requesting that all future correspondence and inquiries concerning the matter be directed to his attention. (Pl.'s Counterstatement ¶ 6; Defs.' Resp. ¶ 6; Pl.'s Ex. J (Feb. 2, 2007, letter from Bass to EAA).) A few months later, in May 2007, the parties settled the matter, agreeing to a payment arrangement whereby plaintiff would pay a specified amount each month until the balance on her accounts was paid in full. (Pl.'s Counterstatement ¶ 7; Defs.' Resp. ¶ 7; Compl., Ex. A (May 2, 2007, letter from EAA to Bass reflecting agreement).) Plaintiff thereafter continued to be represented by Bass. (Pl.'s Counterstatement ¶ 8; Defs.' Resp. ¶ 8.)

Although it is EAA's practice to stop contacting a consumer once the consumer is represented by counsel (or once a payment plan is agreed upon, if the consumer is not represented by counsel), EAA contacted plaintiff by phone and in writing on several occasions in 2008. (Pl.'s Counterstatement ¶¶ 9-11; Defs.' Resp. ¶¶ 9-11.) In particular, EAA managing attorney Michael Ratchford initiated calls to plaintiff through Global Connect, the firm's auto-messaging service, on both of her accounts on January 10, 12, and 17, 2008, and on Account 2 only on January 20 and February 3, 2008. (Pl.'s Counterstatement ¶¶ 12-14; Defs.' Resp. ¶¶ 12-14.)*fn2 These "blast" phone calls were placed to plaintiff at her work number and also at her parents' telephone number.*fn3 (Pl.'s Counterstatement ¶ 15; Defs.' Resp. ¶ 15.) In addition, EAA sent collection letters directly to plaintiff on Account 2 on March 14, 2008, and on both of her accounts on April 28, 2008. (Pl.'s Counterstatement ¶ 19; Defs.' Resp. ¶ 19; Pl.'s Ex. L (letters).)

Both the calls and the letters that plaintiff received were sent through automated processes to lists of accounts compiled by Ratchford or other EAA personnel using the Commercial Legal Software ("CLS") program that the firm used to manage its collection accounts. (Defs.' Statement of Material Facts in Support of Their Mot. for Summ. J. ["Defs.' Statement"] ¶ 5; Pl.'s Resp. ¶ 5; Pl.'s Counterstatement ¶¶ 12, 20; Defs.' Resp. ¶¶ 12, 20.) Within the CLS program, EAA used numerical "diary codes" to reflect certain account activity and/or status information. (See Ratchford Dep. 38; Defs.' Ex. C ["Scavone Dep."] 49; Pl.'s Ex. K ("paperless notes" on plaintiff's accounts showing addition and deletion of various diary codes).) In working on an account, EAA personnel would assign diary codes to the account to reflect such information as, for example, whether the account was a new account, whether the consumer was represented by counsel, whether EAA had a good phone number for the consumer, and whether the consumer had entered into a payment plan. (See Ratchford Dep. 38; Scavone Dep. 49; Pl.'s Ex. K.) According to Ratchford, EAA would then use these diary codes to build lists of consumer accounts to receive particular communications, setting the parameters for which accounts to call up based on the diary codes and date ranges. (See Ratchford Dep. 36, 40-41, 83-84.) Using the diary codes in this manner, EAA could construct a call list that would exclude all accounts in which the consumer was represented by counsel. (See id. at 64.)

Although EAA coded both of plaintiff's accounts to reflect that she was represented by counsel in February 2007, the relevant diary code was deleted from Account 2 in May 2007 and from Account 1 in January 2008, and the code was not restored to either account until May 2008, after plaintiff's attorney contacted EAA. (See Pl.'s Counterstatement ¶¶ 21, 23, 26; Defs.' Resp. ¶¶ 21, 23, 26; Defs.' Statement ¶ 19; Pl.'s Resp. ¶ 19.)

In particular, on May 12, 2007, Michael Scavone, an EAA collector who was not assigned to plaintiff's account, accessed plaintiff's Account 2 to post a payment. (Pl.'s Counterstatement ¶ 26; Defs.' Resp. ¶ 26.) While in that account, Scavone added the diary code for "partial payment arrangement" and deleted the "represented by counsel" code. (Pl.'s Counterstatement ¶ 26; Defs.' Resp. ¶ 26; Scavone Dep. 51-52; Pl.'s Ex. K (Account 2 notes at 3).) Scavone testified that he was "advancing the date on the payment" and should have advanced the "represented by counsel" code as well by deleting and then re-entering the code, as he had been trained to do, but he made a mistake and deleted the code instead.*fn4 (Scavone Dep. 51-52, 57.) Scavone's actions with respect to Account 2 did not affect plaintiff's Account 1, in which the diary codes continued to reflect that plaintiff was represented by counsel after May 12th. (See Pl.'s Ex. K (Account 1 notes at 3-4); Ratchford Dep. 75-76 (acknowledging that "cease and desist: contact counsel" code*fn5 continued to appear in plaintiff's Account 1 as late as January 2008).) Nevertheless, on January 10 and 12, 2008, Ratchford initiated calls to plaintiff on both of her accounts.

Thereafter, on January 17, 2008, John McGraw, another EAA collector not assigned to plaintiff's accounts, accessed Account 1 to delete plaintiff's parents' phone number (most likely as a result of a call informing him that it was a wrong number). (Pl.'s Counterstatement ¶ 23; Defs.' Resp. ¶ 23; Pl.'s Ex. I ["McGraw Dep."] 37.) While logged in to plaintiff's account, McGraw added a code for "secured payment" and then deleted the four previous diary codes, including the counsel code, with a single keystroke. (Pl.'s Counterstatement ¶ 23; Defs.' Resp. ¶ 23; McGraw Dep. 38-42, 51, 64; Pl.'s Ex. K (Account 1 notes at 4).) McGraw testified that he did not notice that there was a "cease and desist" code on plaintiff's account, but he acknowledged that, had he looked back through the notes on the account or pulled up the "diary screen" for the account, he could have determined that plaintiff was represented by counsel.*fn6

(McGraw Dep. 42-44, 49-50.)

On April 30, 2008, Bass wrote to EAA, directing the firm to cease contacting plaintiff and to send any future inquiries to his office. (Defs.' Statement ¶ 18; Pl.'s Resp. ¶ 18; Pl.'s Ex. N (April 30, 2008, letter from Bass to EAA).) EAA thereafter re-coded plaintiff's accounts as "represented by counsel" on May 5, 2008. (Pl.'s Ex. K (Account 1 notes at 4; Account 2 notes at 5).)

Plaintiff filed this civil action on December 22, 2008, alleging that defendants violated the FDCPA by communicating with her about her debt after being informed that she was represented by counsel, by communicating with third parties (namely, her parents) in connection with the collection of a debt, and by "engaging in conduct the natur[al] consequence of which is to harass, oppress, and abuse any person in connection with the collection of a debt." (Compl. ΒΆ 35.) Before the court ...


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