United States District Court, E.D. Pennsylvania
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. (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).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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 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 ¶
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.
STANDARD OF REVIEW
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
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
A Genuine Disputed Issue of Material Fact Exists as to
Whether Defendant Employed Tactics Designed to Embarrass,
Harass, Upset, or Otherwise Harass Plaintiff.
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).
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).
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,
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 ...