United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge
October 7, 2013, Plaintiff, Mary Barbato, brought an action
against Defendant Greystone Alliance, LLC
("Greystone") in the Court of Common Pleas of Wayne
County, Pennsylvania. (Doc. 2). On November 8, 2013,
Greystone removed the action to this Court. (Doc. 1).
January 28, 2014, Plaintiff moved to amend her complaint,
which was granted on June 13, 2014. (Docs. 11, 20). On that
same date, Plaintiff filed an amended complaint against
Defendants Greystone; Turning Point Capital, Inc.
("Turning Point"); and Crown Asset Management, LLC
("Crown") alleging violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seg.
("FDCPA"). (Doc. 21). In particular, Plaintiff
claims that Defendants violated sections 1692e(ll) and 1692g
of the FDCPA. (Id. at pp. 4-6). Additionally,
Plaintiff advances class allegations as to the section 1692g
claim, (Id. at pp. 5-6). To date, Greystone and
Turning Point have been dismissed from the action.
(Docs. 66, 99).
January 15, 2016, Plaintiff moved to certify the class. (Doc.
64). On April 14, 2016, Plaintiff filed a motion seeking a
ruling on her class certification motion prior to ruling on
her motion for summary judgment. (Doc. 76). On April 15,
2016, each remaining party, Plaintiff and Crown, moved for
summary judgment. (Docs. 77, 78).
19, 2016, Plaintiff filed a reply in support of her motion
seeking a ruling on her class certification motion prior to a
ruling on her motion for summary judgment. (Doc. 93). In the
reply, Plaintiff stated that she no longer sought "a
ruling on Plaintiff's motion for class certification
prior to a ruling on Plaintiffs motion for summary judgment
on liability." (Id. at p. 2). "With
[Crown], " Plaintiff requested "that the Court rule
on the parties' cross-motions for summary judgment in
advance of Plaintiffs motion for class certification."
(Id.). As a result, the Court issued an Order
deeming Plaintiffs April 14, 2016 motion for a ruling on her
class certification motion prior to ruling on her motion for
summary judgment withdrawn. (Doc. 97); see (Doc. 93, p. 2).
The Order also states that the Court will defer ruling on,
inter alia. Plaintiffs motion for class
certification until after disposition of the parties'
respective motions for summary judgment. (Doc. 97).
pending summary judgment motion has been fully briefed and,
thus, both are ripe for disposition. See (Docs. 79-80, 83-87,
90-91, 94-96). For the reasons stated below, both summary
judgment motions will be denied.
STANDARD OF REVIEW
judgment "should be rendered if the pleadings, the
discovery 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); Turner v.
Schering-Plough Corp.. 901 F.2d 335, 340 (3d Cir. 1990).
The party moving for summary judgment bears the burden of
showing the absence of a genuine issue as to any material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
this showing has been made, the non-moving party must offer
specific facts contradicting those averred by the movant to
establish a genuine issue of material fact. Luian v.
Nat'l Wildlife Fed'n. 497 U.S. 871, 888 (1990).
"[T]he non-movant must go beyond the pleadings, pointing
to particular facts that evidence a genuine dispute for
trial." Shank v. Experian Info. Solutions.
Inc.. 2016 U.S. Dist. LEXIS 2679, at *1 (M.D. Pa. Jan.
11, 2016) (Jones, J.) (citing Guidotti v. Legal Helpers
Debt Resolution. L.L.C.. 716 F.3d 762, 773 (3d Cir.
2013)). In particular, for a non-moving party to prevail on a
motion for summary judgment, they '"must show
specific facts such that a reasonable jury could find in that
party's favor, thereby establishing a genuine issue of
fact for trial.'" McGlynn v. Reliance Standard
Life Ins. Co.. 2015 U.S. Dist. LEXIS 168589, at *9-10
(M.D. Pa. Dec. 17, 2015) (Caputo, J.) (quoting Galli v.
N.J, Meadowlands Comm'n. 490 F.3d 265, 270 (3d Cir.
2007)). '"While the evidence that the non-moving
party presents may be either direct or circumstantial, and
need not be as great as a preponderance, the evidence must be
more than a scintilla.'" Galli. 490 F.3d at
270 (quoting Hugh v. Butler Cntv. Family YMCA. 418
F.3d 265, 267 (3d Cir. 2005)).
inferences "should be drawn in the light most favorable
to the nonmoving party, and where the nonmoving party's
evidence contradicts the movant's, then the
non-movant's must be taken as true." Pastore v.
Bell Tel. Co.. 24 F.3d 508, 512 (3d Cir. 1994) (quoting
Big Apple BMW. Inc. v. BMW of N. Am.. Inc.. 974 F.2d
1358, 1363 (3d Cir. 1992), cert, denied. 507 U.S.
912 (1993)). "[T]he non-moving party may not oppose
summary judgment simply on the basis of the pleadings, or on
conclusory statements that a factual issue exists."
Swinka Realty Invs., LLC v. Lackawanna Cntv. Tax Claim
Bureau. 2016 U.S. Dist. LEXIS 86328, at *20-21 (M.D. Pa.
July 1, 2016) (Mariani, J.) (citing Anderson v. Liberty
Lobby. Inc.. 477 U.S. 242, 248 (1986)). Pursuant to
Federal Rule of Civil Procedure 56:
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by citing to particular
parts of materials in the record... or by showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)-(B). Additionally, "[i]n
evaluating whether summary judgment should be granted,
'[t]he court need consider only the cited materials, but
it may consider other materials in the record.'"
the summary judgment standard "is no different where,
" as in this case, "there are cross-motions for
summary judgment" Lawrence v. City of
Philadelphia. 527 F.3d 299, 310 (3d Cir. 2008). When
a court is "'confronted with cross-motions for
summary judgment, the court must rule on each party's
motion on an individual and separate basis, determining, for
each side, whether a judgment may be entered in accordance
with the summary judgment standard."' Swinka
Realty Invs.. LLC. 2016 U.S. Dist. LEXIS 86328, at *22
(quoting Marciniak v. Prudential Fin. Ins. Co. of
Am.. 184 F.App'x 266, 270 (3d Cir. 2006)). According
to the United States Court of Appeals for the Third Circuit:
[c]ross-motions are no more than a claim by each side that it
alone is entitled to summary judgment, and the making of such
inherently contradictory claims does not constitute an
agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial
consideration and determination whether genuine issues of
material fact exist.
Lawrence. 527 F.3d at 310 (quoting Rains v.
Cascade Indus.. Inc.. 402 F.2d 241, 245 (3d Cir. 1968));
Holton v. Huff. 2012 U.S. Dist. LEXIS 53185, at *5
(M.D. Pa. Apr. 16, 2012) (Mariani, J.). On cross motions for
summary judgment, "[e]ach movant must show that no
genuine issue of material fact exists; if both parties fail
to carry their respective burdens, the court must deny the
motions." Holton. 2012 U.S. Dist. LEXIS 53185,
at *5 (citing Facenda v. N.F.L. Films. Inc.. 542
F.3d 1007, 1023 (3d Cir. 2008)). "When reviewing each
motion, the court is bound to view the evidence in the light
most favorable to the nonmovant." Id. (citing
Fed.R.Civ.P. 56; United States v. Hall. 730 F.Supp.
646, 648 (M.D. Pa. 1980) (Nealon, J.)).
there is no material fact in dispute, the moving party need
only establish that it is entitled to judgment as a matter of
law." Schwab v. Reamstown Mut. Ins.
Co.. 2006 U.S. Dist. LEXIS 82815, at *3 (M.D. Pa. Nov.
14, 2006) (Caputo, J.). However, "[i]f the
'non-moving party fails sufficiently to establish the
existence of an essential element of its case on which it
bears the burden of proof at trial, there is not a genuine
dispute with respect to a material fact and thus the moving
party is entitled to judgment as a matter of law."'
Mancini v. Northampton Cnty., 836 F.3d 308, 313-14
(3dCir. 2016) (quoting Blunt v. Lower Merion Sch.
Dist.. 767 F.3d 247, 265 (3d Cir. 2014)).
STATEMENT OF FACTS
about September 7, 2007, Plaintiff obtained a "Care
Credit" card which was used for personal, family, or
household purposes (the "Account"). (Doc. 80, p.
2); (Doc. 84, p. 2); (Doc. 94, p. 4). On November 15, 2010,
Plaintiff made her last payment on the Account to GE Electric
Capital Corporation and GE Money Bank (collectively
"GE"). (Doc. 84, pp. 2-3); (Doc. 94, pp. 4-5). At
that time, Plaintiff had an outstanding balance on her
Account. See (Doc. 80, pp. 3-4); (Doc. 84, p. 5); (Doc. 91,
p. 5). On June 16, 2011, GE charged off the delinquency
balance on Plaintiff's Account. (Doc. 84, p. 3); (Doc.
94, p. 5). On or about July 27, 2011, by agreement dated
January 7, 2011, GE sold, transferred, and assigned certain
charged-off receivables, including Plaintiffs Account, to
Atlantic Credit and Finance Special Finance Unit III, LLC
("Atlantic"). (Id.). On or about October
18, 2011, by agreement dated June 20, 2011, Atlantic sold,
transferred, and assigned certain charged-off receivables,
including Plaintiffs Account, to Security Credit Services,
LLC ("Security Credit"). (Id.). On or
about January 30, 2012, Security Credit sold, transferred,
and assigned certain charged-off receivables, including
Plaintiffs Account, to Brightwater Capital, LLC
("Brightwater"). (Doc. 84, p. 3); (Doc. 94, p. 5).
By agreement dated January 30, 2013, Brightwater sold,
transferred, and assigned certain charged-off receivables,
which included Plaintiff's Account, to Crown. (Doc. 80,
p. 3); (Doc. 84, p. 3), (Doc. 94, pp. 5-6).
is a purchaser of charged-off receivables. (Doc. 80, p. 2);
(Doc. 84, p. 2). However, Crown does not directly collect on
its charged-off receivables. (Id.). Rather, Crown
refers all of its charged-off receivables to third-parties
for collection. (Id.). For example, on December 18,
2012, Crown entered into a service agreement (the
"Service Agreement") with Turning Point. (Doc. 80,
p. 5); (Doc. 84, p. 3). According to the Service Agreement,
Crown was seeking "to procure certain collection
services from" Turning Point. (Doc. 80-8, p. 2).
Additionally, as part of the Service Agreement, Turning Point
agreed to the following provisions:
2.1 From time to time and in its sole and absolute
discretion, Forwarder may refer to Agency certain Accounts
that are in default. Agency agrees to provide the Services
described in the Agreement. Except pursuant to
Forwarder's express consent, obtained in advance and in
writing, Services will be provided exclusively by
Agency's employees and the referral of any Account by
Agency to a third party, without Forwarder's prior
written authorization, is expressly prohibited. In the case
of any referral approved by Forwarder, Forwarder will not be
obligated to pay compensation in excess of the Fee due to
Agency. Forwarder retains the right, in its exclusive
discretion, to modify this Agreement at any time in regard to
third party referral standards by providing written notice to
Agency. Upon receipt by Agency, any such modification will be
deemed rally incorporated into the Agreement....
4.1 Performance Standards. Agency shall perform such
services as Agency, in its professional judgment, deems
appropriate, subject to the terms of the [Service] Agreement
and the laws and regulations governing the collections of
such Accounts. Agency shall maintain a complete, correct and
current record of each Account, which Forwarder may access
and review at any time.
4.2 Due Diligence and Lawful Action. Agency agrees
to use due diligence and to employ lawful means in its effort
to collect on Accounts referred to Agency by Forwarder. In
providing services, Agency shall conform to a standard of
practice and care that equals or exceeds the standard
applicable to other Agencies, which provide similar services
in the same state(s) as Agency.
4.3 Settlements. Forwarder grants Agency authority
to settle any Account for an amount equal to or greater than
the percentages of balances identified in the Settlement
Guidelines. Agency will not settle or in any way compromise
Accounts for less than the amounts indicated in the
Settlement Guidelines unless Agency obtains prior written
approval from the Company to settle any Account for a lesser
7.3 Forwarder, in its sole and exclusive discretion, may
instruct Agency to close and return any Account at any
8.1 Compliance with Applicable Laws. Agency
represents, warrants, and covenants that when performing its
obligations under the [Service] Agreement, Agency shall
comply with all applicable federal, state, and local laws,
statutes, and regulations, including but not limited to the
federal Fair Debt Collection Practices Act, Truth in Lending
Act, Fair Credit Reporting Act and Gramm-Leach Bliley Act, as
amended. Further Agency, while pursuing its duties hereunder
with diligence and vigor, shall at all times maintain and
protect the good name and reputation of Forwarder....
8.4 Audits, (a) Forwarder, or persons retained by
Forwarder, and federal and state regulatory agencies that
supervise Forwarder shall have the right to examine and audit
Agency's business, operations, security architecture,
systems, procedures and practices that relate to the Services
and the Agency's obligations under this Agreement.
Forwarder may, among other audit tasks, measure or evaluate
Agency's performance and professionalism, verify the
accounting of all funds, including any trust account, verify
the accuracy and propriety of all commissions verify the
timeliness of recording and remitting payments, verify the
adequacy of cash controls, and verify Agency's overall
compliance with this Agreement. Audits may be performed,
either on-site or remotely, at Forwarder's discretion.
Agency shall grant Forwarder access to its system of record
via electronic access to permit remote audits. On-premises
audits and inspections will be limited to one initial
security audit and one annual audit thereafter. Additional
on-premises audits may be conducted at Forwarder's sole
discretion upon the occurrence of a Termination Event.
Forwarder may delegate the right to audit to any third party
auditor or examiner. On-premises audits and inspection shall
be conducted at Agency's expense. During Agency's
normal business hours, Agency shall provide to the auditor a
reasonable workspace and the use of on-site photocopying
equipment, computer network, and telephones at no charge to
Forwarder. Agency shall allow full and free access to records
relating to any Account forwarded and shall provide necessary
technical assistance as required to access these records.
Forwarder agrees to advise Agency of the
exceptions/discrepancies identified in any audit and agrees
to allow Agency a reasonable period of time to respond to
them. Where Forwarder determines Agency shall take corrective
measures, Agency shall submit to Forwarder a corrective
action plan that will correct any deficiencies....
8.6 Customer Service and Quality. Agency agrees to
forward a copy of any written complaint received from an
Account holder in regard to Agency's handling of an
Account as well as the response made or action taken by
9.5 Independent Contractor Status. The [Service]
Agreement shall not be construed as creating an
employee/employer agency, partnership, or joint venture
relationship between Agency and Forwarded. Each party shall
have the obligation to supervise, manage, contract, direct,
procure, perform or cause to be performed, all work to be
performed under the [Service] Agreement and shall be liable
for all acts or omissions of its employees and agents in
performing their respective obligations hereunder.
(Doc. 80-8, pp. 4, 6-7, 10-11, 12); (Doc. 84, p. 4); (Doc.
86-3, pp. 5, 9, 10-11, 12).
February 4, 2013, pursuant to the Service Agreement, Crown
referred Plaintiffs Account to Turning Point. (Doc. 80, p.
3); (Doc. 84, p. 5). On February 6, 2013, Turning Point
issued a letter to Plaintiff, which stated, in relevant part,
Our client, Crown Asset Management, LLC has purchased your
account and all rights to the debt from GE Sales Finance.
There is an outstanding balance due of $2, 483.83. Our
client's records indicate that payment has not been
received or processed as of the date of this correspondence,
and has therefore been listed for collection.
If you are unsure of its validity, you may contact us
directly at 1-800-872-9312 to obtain additional information
regarding this obligation. Otherwise, you may clear your
account from our collection process immediately by sending
the bottom portion of this letter with your payment in full
using the enclosed envelope. Your account will be properly
credited and you will receive no further communication from
us on this account.
(Doc. 80, pp. 3-4); (Doc. 84, p. 5); (Doc. 91, p. 5). That
letter also contained the ...