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Evankavitch v. Green Tree Servicing, LLC

United States District Court, Third Circuit

October 21, 2013



JAMES M. MUNLEY, District Judge.

Before the court for disposition is Plaintiff Patricia Evankavitch's (hereinafter "plaintiff") motion for partial summary judgment in this Fair Debt Collection Practices Act case. The parties have briefed their respective positions, and the matter is ripe for disposition.


In 2005, plaintiff obtained a $43, 000.00 mortgage on her home. (Doc. 24, Pl.'s Statement of Undisputed Material Facts, (hereinafter "Pl.'s SOF") at ¶ 4).[1] Plaintiff sought the loan to lend the money to her son. (Id. ¶ 5). Plaintiff's son evidently repays the loan by paying his mother who in turn pays Defendant Green Tree Servicing, LLC (hereinafter "defendant"). Plaintiff remains ultimately responsible to the lender. (Id. ¶ 6). Eventually, plaintiff's son fell behind on the loan payments due to financial difficulties. (Id. ¶ 7).[2]

In 2011, defendant became the loan servicer for plaintiff's mortgage. (Id. ¶ 8). When defendant took over servicing the mortgage, it was four months past due. (Id. ¶ 9). In its efforts to collect the debt, defendant telephoned both plaintiff's daughter, and Robert Heim, plaintiff's neighbor. (Id. ¶¶ 12, 14).

On August 24, 2012, defendant telephoned Heim and left a message. (Id. ¶ 18). The message was a request that plaintiff return defendant's call. (Id. ¶ 19). Defendant did not inform Heim that it was a debt collector. (Id. ¶ 21). Heim gave the message to plaintiff. (Id. ¶ 23). After leaving the message with Heim, defendant telephoned Heim three more times. (Id. ¶ 24).

Defendant also made telephone calls to the phone number of plaintiff's daughter. On February 17, 2012, a call was placed by that phone number asking defendant to no longer call it. (Id. ¶ 14). In May 2012, defendant telephoned plaintiff's daughter's phone number and left a message asking for plaintiff or her son to return the call. (Id. ¶ 16).

Based upon these facts, the plaintiff instituted the instant action under the Fair Debt Collection Practices Act, (hereinafter "FDCPA" or "the act"), 15 U.S.C. § 1692 et seq. The complaint alleges that defendant violated section 1692c(b) of the FDCPA by asking a third party to have a consumer return the debt collector's call. (Doc. 1-1, Compl. ¶ 11). The complaint also alleges the defendant violated section 1692e(11) of the FDCPA by failing to disclose that it was a debt collector when it left a message with a third party for the plaintiff. (Id. ¶¶ 15-16).

Plaintiff filed the case in the Court of Common Pleas of Lackawanna County, Pennsylvania, and the defendant removed it to this court on December 21, 2012. (Doc. 1, Notice of Removal) The matter has proceeded through discovery, after which, the plaintiff filed the instant motion for partial summary judgment. The parties have briefed their respective positions and the matter is ripe for disposition.


As this case is brought pursuant to the FDCPA, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.")

Standard of review

Granting summary judgment is proper "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 judgment as a matter of law.'" See Knabe v. Boury , 114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. Int'l Raw Materials, Ltd. v. Stauffer Chem. Co. , 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson , 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id . Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett , 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.


As noted above, plaintiff brings suit pursuant to the FDCPA, which Congress enacted to address "abusive, deceptive, and unfair debt collection practices." 15 U.S.C. § 1692(a). The purpose of the law is "to eliminate abusive debt collection practices by debt collectors to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). "Consumer" is defined by the FDCPA as "any natural person obligated or allegedly obligated to pay any debt." 15 U.S.C. § 1692a(3).[3] To eliminate abusive practices against consumers, the FDCPA prohibits certain actions by debt collectors. If a debt collector fails to comply with the FDCPA, the consumer may bring a civil action and obtain any actual damages that person has sustained and such additional damages as allowed by the court, but not exceeding $1, 000. 15 U.S.C. § 1692k. A successful consumer may also be awarded the costs of the action and a reasonable attorney's fee. Id.

The parties agree that defendant is a debt collector under the act and that plaintiff is a consumer under the act. The sole liability issue, therefore, is whether defendant engaged in debt collection activities that are prohibited by the FDCPA.

Plaintiff's motion for partial summary judgment raises the following issues: 1) Did the defendant violate the FDCPA by leaving messages with third parties? 2) Did the defendant violate the FDCPA by repeatedly calling third parties? and 3) Did the defendant violate the FDCPA by leaving a message that did not disclose that the call was from a debt collector? We will address these issues separately.

Plaintiff's complaint involves third-party contacts defendant made in attempting to collect plaintiff's debt. The facts surrounding these telephone contacts ...

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