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Hamburger v. Northland Group, Inc.

United States District Court, M.D. Pennsylvania

February 12, 2015



ROBERT D. MARIANI, District Judge.

I. Introduction

Presently before the Court is a Motion for Summary Judgment (Doc. 35) filed by Defendant Northland Group, Inc., in this fair debt collection case. For the reasons discussed below, the Court will grant the Motion in part and deny it in part.

II. Procedural History

Plaintiffs Irene and Howard Hamburger, a husband and wife, filed this lawsuit after they allegedly received a series of phone calls from Defendant Northland Group, a debt collection company. The Defendant sought "to collect a debt of an individual named Henry." (Compl., Doc. 1, at ¶ 15.) But, as represented in the Complaint, "[n]either Plaintiff is named Henry nor do they know an individual by that name." (Id. at ¶ 16.) Their Complaint therefore alleged multiple violations of the Fair Debt Collection Practices Act ("FDCPA") (Counts I-IV) and a pendent state tort claim for Invasion of Privacy by Intrusion upon Seclusion (Count V). During discovery, it came to light that, contrary to their representations in the Complaint, Plaintiffs do indeed know some individuals named Henry, including their own son, Henry Hamburger.[1] Henry submitted an affidavit claiming to "have personal knowledge regarding the charges" that were the subject of the collection calls, but omitted to mention whether the debts for which he possesses personal knowledge are in fact his. ( See Henry Hamburger Aff., Doc. 37-3, at ¶¶ 8-10.) He merely states that the "credit card was used to make personal purchase" only, and that "[n]o charges on the credit card... were made for business purposes." (Id. at ¶¶ 9-10.)

Defendant then filed the instant Motion for Summary Judgment, which seeks judgment on all claims alleged in the Complaint. ( See Mot. for Summ. J., Doc. 35, at 1.)

III. Statement of Undisputed Facts

The following facts are not reasonably in dispute.[2]

Defendant opened an account for a third party credit card company to collect debts incurred by Henry Hamburger. (Doc. 36 at ¶ 1)[3] In an attempt to collect these debts, Defendant made multiple calls to Plaintiffs Howard and Irene Hamburger at their home telephone number, beginning in or around March 2013. ( See id. at ¶¶ 8-12.) The calls specified that they were intended for Henry Hamburger. ( See Doc. 38-8 at ¶ 29.) The parties dispute the number of calls that were placed and whether those calls were answered. ( Cf. generally Doc. 36 at ¶¶ 12-20; Doc. 38-8 at ¶¶ 12-20.) However, the parties agree that on April 2, 2013, a man at Howard and Irene's phone number spoke with Northland debt collector Nilton Vega and informed Mr. Vega that Northland was calling the wrong number. (Doc. 36 at ¶ 22; Doc. 38-8 at ¶¶ 22.)

Plaintiffs admit that they "were receiving telephone calls from collection agencies other than Northland during between January 2013 and April 2013." (Doc. 36 at ¶ 38.) To differentiate Northland from these other collectors, Irene Hamburger testified to having recorded Northland's number each time it called "because it called so many times, " but she "is unable to locate the piece of paper" providing this record. ( See Doc. 38-8 at ¶ 37.)

IV. Statement of Disputed Facts

Aside from the facts enumerated above, several other issues of fact remain in dispute.

First, there is a dispute about how many calls were actually placed. Northland argues that it only placed five calls to Plaintiffs' phone number, on March 11, March 14, March 25, March 29, and April 2, 2013. (Doc. 36 at ¶ 12.) It provides as evidence for this assertion a copy of its Account Notes for the Henry Hamburger account. ( See generally Doc. 37-1, Ex. A.) Plaintiffs, on the other hand, argue that Defendant called them "at least seven or eight" times. ( See Doc. 38-8 at ¶ 12.) Plaintiffs' only support for their factual assertions appears to be their own testimony. In this respect, it should also be noted that even though Plaintiffs characterize their testimony as indicating that "Defendant made at least seven or eight calls to Plaintiffs, after Plaintiffs told them they were calling the wrong number, " (Doc. 38-8 at ¶ 12), the cited deposition testimony does not support this assertion. Irene Hamburger only testified that she "logged or wrote down" "about seven or eight [calls] that I remember." (Irene Hamburger Dep., Doc. 37-5, at 22:3-6.) It is apparent from the context of her deposition that she is referring to the total number of calls she wrote down as coming from Northland, and not to calls received only after Northland was told to stop calling. Nor does she use the phrase "at least, " though the conclusion that other non-logged calls occurred possibly could be inferred from reading other parts of her testimony.

Relatedly, the issue of how many of these calls led to conversations between a Northland representative and one of the Plaintiffs may be in dispute. Defendant states that no conversations took place during the first four calls listed above. ( See Doc. 36 at ¶ 17.) Plaintiffs deny this on the grounds that Defendant's own records show that these calls were answered. (Doc. 38-8 at ¶ 17.) However, in the course of their denial, Plaintiffs also indicate that the calls being received were in the form of automated messages and that "Plaintiff Howard Hamburger testified that several times when he received an automated message for Henry Hamburger that [ sic ] he would press a number and hang up the phone to alert the collector it was calling the wrong number." (Id. ; see also Howard Hamburger Aff. at 16:14-18 (testifying that "I got automated calls" from Northland).) Defendant also states that its calls are automated and that the recipient would have to take further action before speaking to a representative. (Doc. 36 at ¶ 29.) Accordingly, the fact that the calls "were answered" does not show that a conversation took place. Plaintiffs'"denial" that only one phone call led to a conversation may therefore be a mischaracterization.

Finally, there are disputes over when and in what manner the Plaintiffs informed the Defendant that Henry Hamburger did not live at their residence and whether the Defendant continued to call the Plaintiffs after being so informed. It is undisputed that Nilton Vega was informed on April 2, 2013 that Henry Hamburger did not live at the Plaintiffs' address. ( See Doc. 36 at ¶ 22.) The person speaking with Mr. Vega was "a man, " ( id. ), most likely Howard Hamburger, who testifies that he told Mr. Vega, "Stop calling me. Leave us alone, " and informed him that no one named Henry lived at his house. (Howard Hamburger Dep. at 16:3-10.) However, Irene Hamburger-a woman-testifies that she had to speak with Nilton Vega at least two other times to tell Northland to stop calling. (Irene Hamburger Dep. at 18:18-21:19.) She also testifies to responding to the automated calls by pressing the prompted numbers to be taken off the call list. (Id. at 17:8-11.) But as to these latter calls, she also testified that she cannot be sure that they were from Northland or a different debt collector. (Id. at 17:12-25.) According to the Defendant's description of its automated calls (which Plaintiffs deny, ( see Doc. 38-8 at ¶ 29)) the call recipient can only inform Northland of a wrong number by dialing a separate 1-800 number, and not by pressing a single key as Mrs. Hamburger testifies to have done, ( see Doc. 36 at ¶ 29).

In contrast to Plaintiffs' claims of making multiple requests to be taken off the call list, Northland states that a search of its records reveals that Plaintiffs only called to report a wrong number once, which appears to be the April 2, 2013 conversation between Nilton Vega and the unidentified man. ( See Doc. 36 at ¶ 27.) Northland likewise claims that a search of its records pertaining to the 1-800 number allegedly used to accept notice of wrong numbers discloses no incoming calls from the Hamburgers. (Id. at ¶¶ 32-35.) Finally, it claims that, after the April 2 conversation, Mr. Vega updated his company's account notes for Henry Hamburger to state "WRONG PARTY NOT CONSUMER, " and that Northland never called the Plaintiffs thereafter. (Id. at ¶¶ 23-24.) Plaintiffs deny these representations and argue that Northland called them again at 5:12 p.m. on April 2, exactly one minute after the conversation with Mr. Vega at 5:11 p.m. (Doc. 38-8 at ¶¶ 23-24.) This interpretation relies on the call log submitted by the Defendant and an affidavit from a representative with the third party service provider that Defendant used to place its calls. (Id. at ¶ 24.) However, the parties dispute ...

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