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Gerald Searle and Joy Searle v. Credit Adjustments

March 30, 2012


The opinion of the court was delivered by: (Judge Conner)


Before the court are the parties' cross-motions for summary judgment (Docs. 11, 15), wherein plaintiffs Gerald and Joy Searle and defendant Credit Adjustments, Inc. (CAI), respectively seek judgment in their favor on all claims. The complaint alleges that CAI violated several provisions of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 to 1692p (West 2012), including those prohibiting misleading, harrassing, deceptive, and abusive conduct. For the reasons that follow, the court will deny the Searles' motion in full and grant CAI's motion in part.

I. Background

The facts as set forth herein are undisputed unless otherwise noted, drawn from the parties' statements of facts and responses thereto (Docs. 21, 22, 23, 25), from the exhibits supporting the complaint and the motions (Docs. 1-1 to 1-4, Docs. 12-1 to 12-4, Doc. 14-7), and from the complaint's averments admitted in the answer (Docs. 1, 7). They are recounted only as necessary for disposition of the instant motions.

Gerald and Joy Searle are consumers living in Ohio. (Doc. 21, ¶ 1; Doc. 22, ¶ 1; Doc. 23, ¶ 1; Doc. 25, ¶ 1.) CAI is a debt collector with a business address in Ohio.

(Doc. 21, ¶ 1; Doc. 25, ¶ 1; Doc. 1, ¶ 5; Doc. 7, ¶ 5.) On June 20, 2007, Midwest Community Health Associates referred an account in Gerald Searle's name in the amount of $2558.08 to CAI for collection. (Doc. 22, ¶ 1; Doc. 23, ¶ 1.)

CAI maintains that on the same day that Midwest referred Mr. Searle's account to it, it issued the first of a series of written communications to Mr. Searle regarding the debt, the amount owed, and CAI's intent to collect upon the debt. (Doc. 22, ¶¶ 4, 8). The Searles, however, deny ever having received any communications from CAI until CAI sent them a letter dated September 17, 2010; the parties agree that such a letter was sent. (Doc. 22, ¶ 11; Doc. 23, ¶ 11; see also Doc. 1-1, at 2 (reproducing the Sept. 17, 2010 letter).) The letter, addressed to Gerald Searle, stated that the total balance on all accounts was $3222.48 and informed him of certain unpleasant consequences that could attend his failure to pay the full balance within ten days of the letter's date:

Your account(s) will be referred to our attorney in ten (10) days with instructions to seek judgment. If judgment is obtained, we will authorize our attorney to proceed with garnishment of your wages through your employer, SHILOH CHRISTIAN UNION CHURCH. Attachment of real estate and/or personal property may also be considered, if necessary, to settle this matter.

Court costs, garnishment fees, attachment fees, and interest allowed by the court will be added to your account.

To avoid this action, the sum of $3,222.48 must be paid to this office within ten (10) days of the date of this letter.

Attorney Referral Supervisor This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose.

(Doc. 1-1, at 2.) Seven days later, Midwest assigned Mr. Searle's account to CAI for the purposes of collecting the debt on the account. (Doc. 22, ¶ 15, Doc. 23, ¶ 15; see also Doc. 1-4, at 4 (reproducing the written instrument of assignment).)

CAI sent Mr. Searle another letter on October 7, eleven days after the September 17 letter, which stated CAI's intention to take legal action against Mr. Searle if he failed to pay up:

Due to your negligence to respond to the previous letter sent to you by Credit Adjustments, Inc., we have selected our attorney, Jeffrey R. Lankenau, 0034631, to file a complaint with Fulton County Eastern District Court. This appears to be the only way we will be able to get these accounts paid in full. If the balance of $3,232.57 is not paid within ten (10) days of the date of the letter, we will have to take this action against you.

Court costs, garnishment fees, attachment fees, and interest allowed by the court will be added to your account (Doc. 22, ¶ 16; Doc. 23, ¶ 16; see also Doc. 1-2 (reproducing the Oct. 7, 2010, letter).)*fn1

Mrs. Searle called CAI the following Tuesday, October 12, and spoke with Danielle, one of CAI's employees. (Doc. 22, ¶ 24; Doc. 23, ¶ 24.) CAI provided a transcript of the conversation. (Doc. 12-2) Since the particulars of CAI's conduct, including Danielle's conduct, are at issue in the instant action, portions of the conversation are reproduced here.*fn2 Early in the call, Danielle identified the sum that CAI had been referred from Midwest:

Q. I'm showing that your husband had a balance placed in our office from Midwest Community Health Associates . . . . It's currently $3,236.50.

A. Okay. As of today?

Q. As of today right now, yes.

A. Okay. (Id. 2:24--3:10, Doc. 12-2, at 4--5.) The conversation continued to a brief discussion about an "older judgment" in CAI's system that dated to July 2008:

Q. There is an older judgment in our system that has not yet been satisfied. That is seventy-nine twenty-one.

A. Okay. And what is that for?

Q. An account from Community Hospital and Wellness Centers. Looking through my system real quick-

A. I need the date on that please.

Q. It's a date of service, July 5th, 2008.

A. And where-what hospital was that?

Q. That's the Bryan Hospital. You were listed as the patient on that.

(Id.3:11--20, Doc. 12, at 5.) Mrs. Searle promptly returned the topic to the primary charge of over $3000:

A. . . . [T]he one for Midwest . . . -what exactly is that 3,236 for?

Q. That's something you'd have to go through your records for. Umm, showing a charge-off date of March 13, 2007. Gerald [Searle] is the guarantor on that. . . .

A. Uh-huh.

Q. . . . . That doesn't mean necessarily though that he was the patient on every since date of service.

A. Sure, okay.

Q. A charge-off date basically means it could have been [an] accumulation of dates of services or it could have been just for one date of service.

(Id.3:25--4:14, Doc. 12, at 5--6.) Seeking then to get an itemized list of the charges involved, Mrs. Searle got sidetracked with Danielle into a tangent about whether CAI uses email to communicate with consumers:

A. . . . . Well, what we would like to get is an itemized list of-of everything that's owed. . . . [T]his letter that I have in my hand is dated October 7th. We got one previous to that and my husband did respond to it.

Q. He did?

A. . . . . [H]e e-mailed someone and told them that, you know, we wanted an itemized list and that we did get it and we fully intend to see what we can pay, you know, what we owe.

Q. What e-mail did he e-mail to? We don't-

A. I-

Q. -do e-mail.

A. Okay, I don't know but I don't have that paper. I just have the second one in front of me. But-like the same day that we got it, he-umm, sent something.

Q. Okay. Yeah, that would have been back in September, mid September, when he would have gotten that but, no, we've never received any ...

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