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Fooks v. Heritage Payment Recovery

United States District Court, M.D. Pennsylvania

July 16, 2015

OTIS FOOKS, JR. Plaintiff,
v.
HERITAGE PAYMENT RECOVERY, Defendant.

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

We are considering a motion for summary judgment. This matter relates to a four count complaint in which Plaintiff Otis Fooks (Plaintiff) alleges that Defendant Heritage Payment Recovery (Defendant) violated various sections of the Fair Debt Collection Practices Act (FDCPA or Act). (Doc. 1). On April 2, 2015, Defendant filed a motion seeking summary judgment on all four counts. (Doc. 19). For the reasons discussed below, we will grant in part and deny in part Defendant's motion for summary judgment.

II. Background

In February of 2013, Plaintiff's minor daughter, Cassidy Fooks (Fooks), completed a "Student Training Contract" at the York Mixed Martial Arts Academy (YMMAA). (Doc. 19-3). The contract specified that starting on March 5, 2013, YMMAA would provide martial arts lessons to Fooks twice a week for a period of six months. (Doc. 19-3 at 2). In consideration for the lessons, the contract required a monthly payment of one hundred dollars. (Id.). On the contract form, Fooks identified Plaintiff as the "person to be billed, " providing his name, address, and telephone number. (Id.). Aware that Fooks was completing the form, Plaintiff provided her with his credit card information. (Doc. 20 at 3; Doc. 25 at 3). She wrote the information on the form and identified it as the method of payment. (19-3 at 2). YMMAA subsequently provided that information to National Acceptance Company (National) - a company YMMAA engaged to conduct automatic billing on its behalf. (Doc. 20 at 4-5).

Plaintiff made an initial one hundred dollar payment while physically present at YMMAA. (Doc. 20 at 4; Doc. 25 at 4). Thereafter, Plaintiff's credit card was lost, prompting him to cancel the card. (Doc. 20 at 4; Doc. 25 at 5). As a consequence, attempts by National to automatically bill Plaintiff's credit card were unsuccessful. (Doc. 20 at 4; Doc. 25 at 4). Plaintiff alleges that after realizing that payments were not being made to YMMAA, he paid the balance in cash. (Doc. 25 at 4). YMMAA claims that neither it nor National received the remaining $500. (Doc. 20 at 5).

Due to the alleged lack of payment, National transferred the account to Defendant for collections. (Id.; Doc. 19-4 at 7-10). The account, which was in Fooks' name, was transferred via an automated computer process. (Doc. 20 at 5). According to Defendant, when the account was transferred, a formatting defect prevented the transmittal of Fooks' date of birth. (Id.). Because it was unaware of her status as a minor, on June 20, 2013, Defendant sent a letter to Fooks advising her of her rights under the FDCPA. (Doc. 20 at 6; Doc. 19-3 at 3). Between June and September of 2013, in an attempt to contact Fooks and collect the debt, Defendant called Plaintiff's cell phone a total of ten times, resulting in voice messages for "Cassidy Fooks." (Doc. 20 at 6; Doc. 19-6 at 11). On September 19, 2013, Defendant called Plaintiff for the last time and actually conversed with Plaintiff about the debt.[1] (Doc. 20 at 8; Doc. 25 at 8).

During that phone call, Plaintiff spoke to Ben Randise - an employee of Defendant. (Id.). Plaintiff advised Randise that Cassidy Fooks was a minor and that he was her father. (Id.). Randise informed Plaintiff that a debt had been placed in collections by YMMAA because of missed membership dues. (Doc. 19-1). Plaintiff disputed the debt. (Id.). He insisted that YMMAA received the membership dues in cash and told Randise that he did not want to be contacted again. (Id.). Randise instructed Plaintiff that he would continue to receive phone calls because there was a contract in collections. (Id.). Acquainted with the FDCPA from prior work experience, Plaintiff maintained that he could not be called if he informed Defendant he did not want to be contacted. (Id.). Talking over each other, Plaintiff and Randise continued to disagree-Plaintiff contending two or three times that he could not be contacted, Randise insisting he could. (Id.). At the conclusion of the nearly three minute conversation, Randise told Plaintiff that he had a debt that had to be paid and his credit could be affected. (Id.). Shortly thereafter, Randise thanked Plaintiff for his time and ended the conversation. (Id.).

Plaintiff immediately called back and asked to speak to a supervisor. (Doc. 20 at 10; Doc. 25 at 10). He was transferred to Matthew Faul. (Id.). After recounting his conversation with Randise, Faul told Plaintiff that the FDCPA permitted Defendant to contact him on his cell phone - the phone Plaintiff used as a "home phone." (Id.). Approximately twenty minutes later, Plaintiff called Faul again and left a voice message. (Id.). He apologized for having the wrong information, stating that his attorney advised him that he must send a letter in order to obligate Defendant to stop calling him. (Id.). Eight days later, Defendant received a letter from Plaintiff's counsel demanding that it stop contacting Plaintiff and stating that a FDCPA claim was being prepared. (Id.).

On May 7, 2014, Plaintiff filed a complaint. (Doc. 1). In four counts, he asserts that Defendant violated eight separate sections and subsections of the Fair Debt Collection Practices Act. (Id.). Defendant seeks summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 19).

III. Discussion

A. Legal Standards

We will examine the motion for summary judgment under the well-established standard: summary judgment will only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). We "must view all evidence and draw all inferences in the light most favorable to the non-moving party, " and we will only grant the motion "if no reasonable juror could find for the non-movant." Id. "Material facts are those that could affect the outcome' of the proceeding, and a dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party.'" Roth v. Norfalco, 651 F.3d 367, 373 (3d Cir. 2011) (citing Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In our review of the motion for summary judgment, we must analyze all of Plaintiff's FDCPA claims "from the perspective of the least sophisticated debtor." Brown v. Card Serv. Ctr., 464 F.3d 450, 454 (3d Cir. 2006). This objective standard is low, protecting all consumers, including the naive. Id. However, it "safeguards bill-collectors from liability for bizarre or idiosyncratic interpretations..., " Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 299 (3d Cir. 2008), and it does not shield consumers "from the embarrassment and inconvenience which are the natural consequences of debt ...


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