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Kromelbein v. Envision Payment Solutions, Inc.

United States District Court, Third Circuit

August 1, 2013

HAROLD LEE KROMELBEIN, Plaintiff,
v.
ENVISION PAYMENT SOLUTIONS, INC., Defendants.

MEMORANDUM

MALACHY E. MANNION, District Judge.

Before the court is defendant Envision's motion for summary judgment, (Doc. No. 18), seeking dismissal of plaintiff's Fair Debt Collection Practices Act (FDCPA) claims filed under 15 U.S.C. §1692d, 15 U.S.C. §1692e, 15 U.S.C. §1692f, and 15 U.S.C. §1692g. (Doc. No. 18.) After a thorough review of the record and, viewing the evidence in the light most favorable to the nonmoving party, the court will GRANT IN PART and DENY IN PART the defendant's motion for summary judgment.

BACKGROUND

Between December 10, 2010, and December 22, 2010, plaintiff wrote checks totaling $722.97 to Dandy Mini Marts, but they were subsequently returned for insufficient funds. (Doc. No. 19, at 1.) Dandy forwarded the bad checks to Envision Payment Solutions Inc., a company specializing in overdue debt collection, and later refused to accept any more checks from plaintiff. (Doc. No. 19, at 7.)

Envision is a member of National Check Network (NCN), "a service that allows its members to run checks through a verification machine to determine whether to accept or decline the check based on whether there are outstanding checks written by that consumer." (Doc. No. 19, at 7.) Because Dandy Mini Marts is a client of Envision, it also utilizes NCN's check verification services. (Doc. No. 19, at 7.) Envision's company policy requires it to send an electronic file of all returned checks to NCN every night, and Envision followed that policy in plaintiff's case. (Doc. No. 19, at 7; Doc. No. 33, Att. 8, at 6.) Therefore, other NCN clients would be notified about plaintiff's outstanding bad checks if plaintiff attempted to pay by check at one of those establishments. (Doc. No. 19, at 7-8; Doc. No. 33, Att. 8, at 5-6.)

Plaintiff claims that Envision began making collection calls to his house in late January or early February 2011, (Doc. No. 33, Att. 1, at 1), while defendant alleges that it began making calls in March or April. (Doc. No. 20, Att. B., at 14.) Plaintiff claims that Envision called him forty-five times between April 20 and June 22, 2011, but defendant alleges that it only called him fourteen times during that same period. (Doc. No. 40, at 2; Doc. No. 33, at 13-16.) The parties appear to agree that Envision also corresponded with plaintiff via collection letters during this two month period. (Doc. No. 33, at 7.) Plaintiff also claims that defendant would hang up on him right before he answered the phone. (Doc. No. 33, Att. 8.) More specifically, he testified that it usually takes him two or three rings to get to the telephone when he receives a call. (Doc. No. 33, Att. 8.) He claims that, when Envision called him, they would hang up by the second or third ring so that no one was on the line when plaintiff answered. (Doc. No. 33, Att. 8, at 2.) Defendant disputes this, arguing it has a policy that instructs employees to hang up after four rings.[1] (Doc. No. 19, at 2.) The parties agree, however, that Envision had a policy which allowed its employees to call a debtor twice in one day if, during the first call, Envision was unable to make contact with the debtor. (Doc. No. 19, at 3; Doc. No. 33, Att. 8, at 3.) Plaintiff does not dispute the policy but argues that he was nevertheless contacted multiple times a day, even when he had previously spoken with an Envision representative that same day. (Doc. No. 33, Att. 8, at 2-3.)

On May 4, 2011, plaintiff received a call from a man he identified as Abraham Martin, a representative and debt collector at Envision. (Doc. No. 19, at 3.) Plaintiff explained that he "was of absolutely no help, " (Doc. No. 19, at 3), and that he was "trying to cooperate with [the] company [during the call] to pay the debt that [he] had incurred [but] nothing satisfied them." (Doc. No. 33, Att. 8, at 3.) Plaintiff also said that he had a "nasty message" from an Envision employee on his answering machine on May 6. (Doc. No. 33, at 3.) Defendant, on the other hand, contends that Mr. Martin never made contact with plaintiff but spoke to a male who would not verify his address, [2] became irate and rude, refused to give any information, and hung up on him. (Doc. No. 19, at 3.)

On May 18, Christy Taylor, another Envision employee contacted plaintiff and spoke with him about his debt. (Doc. No. 19, at 4.) Plaintiff told Ms. Taylor that he "put an $80.00 check in [that day's] mail, ... requested that [Envision] stop the hang-up phone calls, " and notified her that "[he would] file a complaint with the Federal Trade Commission." (Doc. No. 19, at 4.) Plaintiff's notes also indicate that he told Ms. Taylor that Envision was harassing him and that he was keeping track of every call. (Doc. No. 19, at 4.) Because plaintiff notified her that he had sent a check to Envision, Ms. Taylor placed his account "on hold" to prevent further collection activity until the check was received. (Doc. No. 19, at 4.)

Plaintiff received another call on June 2, 2011, which he described as "nasty"; he claims the purpose of the call was to harass and annoy him, (Doc. No. 19, at 4), but does not recollect the particular details of the conversation. (Doc. No. 19, at 5.) Plaintiff further claims that Envision's calls made him feel like a "low-life criminal" and that the Envision employees "implied that they could cause [him] all kinds of problems if [he] didn't comply with their request immediately." (Doc. No. 19, at 5; Doc. No. 33, Att. 8, at 4.) Ms. Taylor, the representative who placed the call, countered this testimony by saying that plaintiff would not verify his address, told her that Envision was harassing him, and began to use loud, foul language. (Doc. No. 19, at 5.)

On June 3 and 6, several Envision employees received calls from a man who would not identify himself but proceeded to blow a whistle into the phone. (Doc. No. 19, at 5.) While the caller never identified himself, plaintiff admitted that he made a call to Envision on both days and blew a whistle into the phone while speaking with Envision employees. (Doc. No. 19, at 5-6; Doc. No. 33, Att. 8, at 5.) Furthermore, the number that the whistle blower used to call Envision was the same number that was registered to plaintiff's account in Envision's database. (Doc. No. 33, Att. C, at 56-58.)

After plaintiff made several payments on his account, he emailed an Envision employee to request an itemized invoice of his outstanding balance. (Doc. No. 19, at 6.) Because he submitted his request concurrently with a check payment, Envision waited to respond until the check cleared in order to ensure that it reported an accurate account balance. (Doc. No. 19, at 6.) Plaintiff sent another request for an itemized invoice on April 29 by email, and Envision mailed plaintiff an invoice that same day. (Doc. No. 19, at 6.)

As stated above, plaintiff received several letters from Envision throughout the time period in question in this case. (Doc. No. 33, at 7.) Two of the letters stated, "ENVISION PAYMENT SOLUTIONS has been authorized to process payment and has recorded your name, address, driver's license number and banking information in our computer verification file. This could affect your check writing ability at many retail establishments." (Doc. No. 33, at 8.) Envision also stated in several of its letters, "This amount due includes a service charge and any fees allowed per check by law. Upon receipt of full payment, your account will be cleared in our database. Full check writing privileges will be restored." (Doc. No. 33, at 8.) Finally, Envision explained in two of its letters, "ENVISION PAYMENT SOLUTIONS wishes to remind you that passing a worthless check is a civil and possible criminal violation. Failure to make payment may force us to seek other remedies to enforce the claim." (Doc. No. 33, at 8.)

STANDARD OF REVIEW

Summary judgment is appropriate "if the pleadings, the discovery [including depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp. , 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen , 903 F.Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249; see also Marino v. Indus. Crating Co. , 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates , 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323-24. The moving party can discharge the burden by showing that, "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman , 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex , 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts, " but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny , 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986)). However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial, " Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp. , 477 U.S. at 322-23; Jakimas v. Hoffman-La Roche, Inc. , 485 F.3d 770, 777 (3d Cir. 2007).

DISCUSSION

A. Harassment or Abuse (15 U.S.C. §1692d)

Section 1692d of the FDCPA provides, "[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. §1692d. The statute enumerates a non-exhaustive list of conduct that violates the act, including "[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." 15 U.S.C. §1692d(5). Plaintiff's complaint alleged claims under §1692d and §1692d(5), and defendant Envision moves for summary judgment, arguing that no reasonable jury could find for plaintiff because neither the call volume nor the call content violated these provisions of the FDCPA. (Doc. No. 20, 3-10.)

The question of whether a debt collector engages in "harassing, annoying, or abusive" conduct is ordinarily an issue of fact for jury. Regan v. Law Offices of Edwin A. Abrahamsen & Associates, P.C., 08-CV-5923, 2009 WL 4396299, *6 (E.D.Pa. 2009); Derricotte v. Pressler & Pressler, LLP, 10-CV-1323, 2011 WL 2971540, *3 (D.N.J. 2011). Therefore, courts will usually only grant summary judgment on this question if "the conduct at issue unequivocally has-or does not have-the natural consequence of harassing, oppressing, or abusing the consumer as a matter of law." Regan, 2009 WL 4396299, *6. As such, the court should deny a motion for summary judgment if the court determines that a reasonable juror could find for the nonmoving party. Illes v. Beaven, 12-CV-395, 2012 WL 2836581, *2 (M.D.Pa. 2012). The same is true for the question of intent to annoy, abuse, or harass. Hendricks v. CBE Group, Inc. , 891 F.Supp.2d 892, 896 (N.D.Ill. 2012) (applying "no reasonable juror" standard); Chavious v. CBE Group, Inc. , ...


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