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Jones v. Southwest Credit Systems

United States District Court, E.D. Pennsylvania

October 18, 2017

BLAIR JONES, Plaintiff,


          SLOMSKY, JUDGE.


         Plaintiff Blair Jones brings this action against Defendant Southwest Credit Systems, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.[1] (Doc. No. 1.) Defendant now moves for summary judgment. (Doc. No. 14.) For reasons that follow, the Court will deny Defendant's Motion for Summary Judgment (Doc. No. 29).


         Plaintiff is a consumer who resides in Philadelphia, Pennsylvania. (Doc. No. 1 ¶ 5.) Defendant Southwest Credit Systems ("SWC") is a Pennsylvania collection agency and is a "debt collector" under the FDCPA. (Id. ¶ 10; see also Doc. No. 14-3 ¶l.) In February[2] 2016, SWC repeatedly had a representative call Plaintiff in an attempt to collect a debt arising from his Comcast cable subscription. (Doc. No. 1 ¶¶ 13-15.) He alleges that he received ten calls over eighteen days which, he argues, was harassment in violation of the FDCPA. (Doc. No. 16-1 at 4.) In his Complaint, Plaintiff states that he received calls consisting of pre-recorded messages followed by a live caller and, though he instructed the caller to stop calling him, the calls continued. (Id. ¶¶ 17-22.) He further alleges that Defendant failed to send him written correspondence advising him of his rights to dispute the Comcast debt and to request verification of the debt within five days of its initial communication with him, as required by § 1692(g)(2) of the FDCPA. (Id. ¶¶ 24; 5-6.) Plaintiff also claims that Defendant continued to call and harass him despite his demand for the calls to stop. (Doc. No. 1 ¶ 23.)

         On August 31, 2017, Defendant filed a Motion for Summary Judgment, contending that it had not violated the FDCPA. (Doc. No. 14-2.) In its Motion, Defendant claims that on February 6, 2016, it sent Plaintiff a collection letter informing him that his Comcast account-delinquent in the amount of $163.44-had been placed with Defendant for collection and included information about the balance which was due and owing. (Id. at 4.) Defendant also asserts that Plaintiff failed to present sufficient evidence to show that it had made calls with the intent to harass, annoy, or abuse him. (Id. at 2.) Thereafter, on September 14, 2017, Plaintiff filed a Response in Opposition to the Motion for Summary Judgment. (Doc. No. 16.) The Motion for Summary Judgment is now ripe for review.


         Granting summary judgment is an extraordinary remedy. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In reaching this decision, the court must determine "whether the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and whether the moving party is therefore entitled to judgment as a matter of law." Macfarlan v. Ivy Hill SNF. LLC, 675 F.3d 266, 271 (3d Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A disputed issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable factfinder could find for the non-moving party. Kaucher v. Cty. of Bucks. 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986)). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Doe v. Luzerne Ctv.. 660 F.3d 169, 175 (3d Cir. 2011) (citing Gray v. York Papers. Inc.. 957 F.2d 1070, 1078 (3d Cir. 1992)). The Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson. 477 U.S. at 247-49.

         In deciding a motion for summary judgment, the Court must view the evidence and all reasonable inferences from the evidence in the light most favorable to the non-moving party. Macfarlan. 675 F.3d at 271; Bouriez v. Carnegie Mellon Univ.. 585 F.3d 765, 770 (3d Cir. 2009). Whenever a factual issue arises which cannot be resolved without a credibility determination, at this stage the Court must credit the non-moving party's evidence over that presented by the moving party. Anderson. 477 U.S. at 255. If there is no factual issue and if only one reasonable conclusion could arise from the record regarding the potential outcome under the governing law, summary judgment must be awarded in favor of the moving party. Id. at 250.

         IV. ANALYSIS

         A. A Genuine Disputed Issue of Material Fact Exists as to Whether Defendant Employed Tactics Designed to Embarrass, Harass, Upset, or Otherwise Harass Plaintiff.

         Congress enacted the FDCPA to provide a remedy for victims of abusive, deceptive, and unfair collection practices by debt collectors. Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993, 996-97 (3d Cir. 2011). The purpose of the statute was to address inappropriate tactics employed by debt collectors, oftentimes leading to "personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy." Campuzano-Burfios v. Midland Credit Mgmt. Inc., 550 F.3d 294, 298 (3d Cir. 2008).

         Section 1692d of the FDCPA provides that "[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. Moreover, § 1692d(5) specifies that "causing 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" is a violation of the provision. 15 U.S.C. § 1692d(5). Generally, what constitutes harassment or abuse is a question that must be answered by the jury. Hoover v. Monarch Recovery Mgmt., 888 F.Supp.2d 589, 596 (E.D. Pa. Aug. 24, 2012) (citing Regan v. Law Offices of Edwin A. Abrahamsen & Assocs., PC, 2009 WL 4396299 (E.D. Pa. Dec. 1, 2009). Moreover, in determining whether such harassment exists, an inquiry must be made not only into the volume of the calls made, but also into the pattern or frequency of the calls. Shand-Pistilli v. Prof'l Account Servs. Inc., 2010 WL 2978029 (E.D. Pa. Jul. 26, 2010). However, under the FDCPA, a plaintiff is not permitted to present "bizarre or idiosyncratic interpretations of collection notices" and is presumed to possess "a basic level of understanding and willingness to read with care." Wilson v. Quadramed Corp.. 225 F.3d 250 (3d Cir. 2000).

         Plaintiff alleges that Defendant caused his phone to ring continuously, and that this conduct constitutes harassment. He claims that after Defendant's representatives contacted him twice on February 5, 2016, Plaintiff agitatedly informed Defendant's representative during a February 6, [3] 2016 call, saying "why you calling... I don't wanna know your name... what do you want from me." (Id. at 5-6.) During this call, he refused to provide any information when asked by the caller and abruptly hung up. (Id-) In Plaintiff's view, his incensed tone and actions conveyed that he wanted the calls to end. Despite this, Defendant's representatives called him four times on February 11 2016, three times on February 15, 2016, and once on February ...

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