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Gryzbowski v. I.C. System

March 5, 2010

DONNA GRYZBOWSKI PLAINTIFF
v.
I.C. SYSTEM, INC. DEFENDANT



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Donna Gryzbowski filed this Fair Debt Collection Practices Act ("FDCPA") action alleging that Defendant, I.C. System, Inc., a debt collector, violated the provisions of the FDCPA when it called and left messages on her cellular phone without identifying itself as a debt collector. The parties have stipulated to the essential facts surrounding the claim and Plaintiff has moved for summary judgment. (Dkt. 14.)*fn1

Defendant admits that it did not identify itself as a debt collector but claims that it could not identify itself as a debt collector in the messages in order to guard against potential third-party notification. Defendant's reasoning is unpersuasive. The argument is essentially a claim that it admittedly violated one section of the FDCPA in order to guard against the potential violation of another provision of the FDCPA. As Defendant's messages violated the FDCPA by failing to identify itself as a debt-collector, Plaintiff's motion for summary judgment will be granted.

I. BACKGROUND

Plaintiff is an adult individual residing in Archbald, Pennsylvania, and Defendant is a "debt collector" located in Minnesota that collects debts in Pennsylvania. (Plaintiff's Statement of Undisputed Material Facts ("PSUMF"), Dkt. 15, at ¶¶ 1-2.) Defendant attempted to collect an alleged debt from Plaintiff by placing at least eleven phone calls to Plaintiff and leaving voicemails requesting she return the calls. (Id. at ¶¶ 3-5.) In one of the messages Defendant disclosed that it was a debt collector, but in the other messages did not. (Id. at ¶ 6.) "In four of the messages, the callers disclosed their individual names, but did not state that they were an employee of [Defendant] or disclose [Defendant's] name." (Id. at ¶ 7.) In two of the messages the caller disclosed Defendant's name, but did not disclose their individual names. (Id. at ¶ 8.)

Defendant avers that it received Plaintiff's account from Washington Mutual in order to collect a debt. (Defendant's Counter-Statement of Undisputed Material Fact, ("DCSUMF"), Dkt. 17, at ¶ 1.) Washington Mutual provided Defendant with the telephone number, as Plaintiff's phone number at her place of employment. (Id. at ¶ 2.) Defendant placed calls to this number with the understanding that it was Plaintiff's place of employment and asserts that when leaving messages at a debtor's place of employment, Defendant does not identify itself as a debt collector to avoid the possibility of inadvertent disclosure to third parties. (Id. at ¶¶ 3-4.)

Plaintiff avers that during the applicable period her cell phone number was (570) 470-5304. (Plaintiff's Affidavit, Dkt. 24-2, at ¶ 1.) She avers that her introductory announcement for her voicemail on this cell phone is:

Hi, you have reached Donna. Please leave your name, your number, and a brief message and a good time to call and I'll get back to you just as soon as I can. I appreciate your call, so I'll talk to you when I can. Thank you. Bye. (Id. at ¶ 2.) Plaintiff avers that to the best of her knowledge, the phone number (570) 470-5304 has never been the phone number for her place of work.

In addition to the above-stated non-disputed facts the parties entered into a stipulation of facts. (Stipulation, Dkt. 12.) The thirteen (13) paragraph stipulation states the following:

1. Defendant withdraws Affirmative Defenses 1, 3, 5, 6, 7, 8, and 10.

2. If Plaintiff shows that the FDCPA has been violated, then $1,000.00 statutory damages will be awarded under 15 U.S.C. § 1692k(a)(2)(A). This agreement is not to be construed as any type of admission with regard to the proving of a violation or a waiver of any defenses Defendant has under the statute or interpretive case law.

3. On September 16, 2008 Defendant phoned (570) 470-5304 and left this message: "Hello this message is for Donna Gryzbowski. This is IC System calling in regards to a personal business matter. Please give us a call back at 1 (866) 903-1001."

4. On September 17, 2008 Defendant phoned (570) 470-5304 and left this message: "This message is for Donna Gryzbowski. This is Marisa calling from IC System. If you could give us a call back at 1 (866) 903-1001 and this is regarding a personal business matter."

5. On September 18, 2008 Defendant phoned (570) 470-5304 and left this message: "Hi, my name is Si calling from IC System. Can a Donna Gryzbowski call us back at (866) 903-1001. This is regarding a personal business matter. Please call us back. Thanks."

6. On September 20, 2008 Defendant phoned (570) 470-5304 and left this message: "Hi, my name is Si calling from IC System. Can a Donna Gryzbowski please call us back at (866) 903-1001. This is IC System calling in regards to a personal business matter. Please give us a call back. Thank you."

7. On September 25, 2008 Defendant phoned (570) 470-5304 and left this message: "Good morning, this is Becky. Please have Donna Gryzbowski give me a call at 1 (866) 903-1001 regarding an important personal matter. Thank you."

8. On September 26, 2008 Defendant phoned (570) 470-5304 and left this message: "This is Andria with IC System. Please ask Donna Gryzbowski to give us a call back at our toll free number 1 (866) 903-1001 ...


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