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Scott v. Monterey Financial Services, LLC

United States District Court, N.D. Indiana, South Bend Division

January 17, 2018

PHYLICIA DAWN SCOTT, Plaintiff,
v.
MONTEREY FINANCIAL SERVICES, LLC, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         In her complaint, plaintiff Phylicia Dawn Scott alleges that defendant Monterey Financial Services, a debt collector, has “systematically and habitually” over a period of years harassed Scott with calls to her cell phone about a debt that Scott has disputed as fraudulently incurred with a “compromised credit card” at a “beauty products store.” [DE 1 at ¶¶18, 19, 20, 25.] As the litigation has developed, her story has shifted a bit. Her card was not compromised. Indeed, she no longer disputes that she placed an online order for an airbrush cosmetics system from Luminess Direct, LLC on March 30, 2014, thereby incurring the debt that defendant Monterey later attempted to collect. [DE 17 at 2.] The Customer Statement of Luminess reflects (without dispute) that Scott's purchase was to be paid for on an installment plan requiring payments every 4 weeks, on which Scott defaulted. [DE 16-1 at 4.]

         Scott brings claims on three legal theories. Count I alleges that Monterey's conduct violated the Fair Debt Collection Practices Act. Count II alleges violations of the Telephone Consumer Protection Act. Count III is brought under the Indiana Deceptive Consumer Sales Act. The case is before me now on Monterey's motion for summary judgment and motion for sanctions. Summary judgment is proper “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). A party opposing summary judgment may not rely on allegations or denials in his or her own pleading, but rather must “marshal and present the court with the evidence she contends will prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). Summary judgment “is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).

         Count I - Fair Debt Collection Practices Act

         The Fair Debt Collection Practices Act is a federal law intended to protect consumers from “abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. §1692(a). The Act prohibits a number of specific practices in the process of debt collection. In Count I of her complaint, Scott alleges that Monterey committed a number of violations of the FDCPA by the manner in which it harassed her with telephone calls in an effort to collect the Luminess debt.

         The FDCPA has a one-year statute of limitations: “[a]n action to enforce any liability created by this subchapter may be brought...within one year from the date on which the violation occurs.” 15 U.S.C. §1692k(d). See also Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 865 (7th Cir. 2016). Monterey argues that it is entitled to summary judgment on the FDCPA claim because “the overwhelming majority” of the telephone calls Scott's claim is based on occurred outside the one-year statute of limitations for such a claim, and the few that were within the limitations period are not sufficient to support a claim under the FDCPA. [DE 17 at 1-2.]

         Scott filed this case on February 16, 2017. In its Statement of Material Facts, Monterey contends that “MFS and/or its representatives only spoke to plaintiff once on December 18, 2014.” [DE 17 at 2.] In isolation, this sentence is ambiguous. It could mean that Monterey's only conversation with Scott took place on that date. But it could also mean there was one conversation on December 18 but additional conversations on other dates. Monterey clarifies its meaning by shortly thereafter asserting that there is no record “that MFS spoke to Plaintiff at any time other than during the December 18, 2014 telephone call, ” and that “[n]o such record exists because MFS only spoke with Plaintiff on a single occasion.” [Id. at 2-3.]

         Monterey goes on to assert that it “only made five telephone calls to the Plaintiff in the preceding year.” [Id. at 3.] This too requires some interpretation, but the argument Monterey ultimately makes about the statute of limitations clarifies that this is a claim that, within the one year period preceding the filing of Scott's lawsuit, Monterey attempted five calls to Scott, but without reaching her for a live conversation. For these factual assertions about its telephone activity, Monterey relies on its “Print Account Ledger” associated with Scott's account, which includes 7 pages of a chronological log reflecting some 63 phone calls to Scott, all but one of which are described as “Recorded Message” or “Customer Hung Up.” [DE 19-2 at 7-14.]

         Scott attempts to cast doubt on the reliability of Monterey's records of the call history by presenting evidence of the omission of a call to Scott on October 21, 2015.[1][DE 27 at 2; DE 27-3 at 166.] Scrambling to recover from this error, Monterey tells me that the call was “accidentally deleted due to a technical issue” and hopes to demonstrate that it was the only possible such error. [DE 28-1 at 1-2, 4.] To that end, Monterey has filed 1382 pages of records subpoenaed from T-Mobile, itemizing phone calls to and from Scott's phone from August 29, 2015 to June 6, 2017. [DE 27-3.] Monterey claims to have conducted a comparison between its call records and Scott's T-Mobile records to confirm that the October 21, 2015 call was the only one missing from Monterey's internal records for Scott's account. [DE 28-1 at 2.] But the subpoena to T-Mobile sought phone records beginning December 1, 2013, so why do the T-Mobile records Monterey filed with the court date only from August 29, 2015? [DE 27-2 at 6.] Because of that limitation of the T-Mobile records, the summary comparison Monterey has submitted omits the December 18, 2014 call (the other recorded conversation that has been provided to the court), as well as 34 other telephone calls Monterey's records indicate it placed to Scott prior to August 29, 2015. [Id. at 4.]

         These discrepancies provide some basis for doubting the conclusiveness of Monterey's assertions about its call history with Scott. But even more significant than questions about the number and date of calls is Scott's dispute about the nature and content of her conversations with Monterey. Monterey asserts that, of the more than 60 phone calls reflected in its account ledger, the only actual conversation with Scott occurred on December 18, 2014, the first time such a call was attempted. [DE 16-2 at 1.] But there is evidence to the contrary: Scott's affidavit (filed with her complaint) contains representations that, if true, indicate that there were other conversations between the parties. Scott has attested: “I have told Monterey that I was disputing the debt and to stop contacting me on at least three occasions.” [DE 1-1 at ¶10.] Scott's affidavit also claims that “Monterey's representatives have threatened me a number of times with statements like, ‘You can go to jail, ' ‘Charges will be pressed, ' and ‘We will come to your house.'” [Id. at ¶13.] Together, these sworn statements and the discrepancies in Monterey's accounting of its phone calls to Scott create material disputes of fact concerning the number and timing of Monterey's calls to Scott as well as the conduct of Monterey's representatives during those calls.

         Further, Monterey's own records describe more than 20 calls with the summary notation “Customer Hung Up.” In and of itself, this description, even if accurate, does not preclude a scenario in which a conversation occurred but was ultimately terminated by Scott hanging up. The statements Scott attests to could therefore have occurred during any of those calls. The parties have not addressed whether any evidence reflects the duration of any of the calls placed to Scott, and whether the time was sufficient for Monterey's representatives to make the statements Scott alleges, either to her before she hung up, or left as recorded messages. Furthermore, Monterey's assertions about its calls to Scott appear to be premised on Monterey's use of a single phone number, (760) 639-3500. But Scott has attested in her affidavit that she “believe[s] [Monterey] has used other numbers as well.” [DE 1-1 at ¶2.] Monterey's evidence and argument do not address or preclude the possibility that Monterey representatives called Scott from other phone numbers.

         Monterey relies on the declaration of its Executive Vice President Shaun Lucas to support its claim that there was only a single conversation, the one that occurred on December 18, 2014. [DE 16-2 at ¶5.] The audio recording of that conversation demonstrates that it did not include any statements of the kind Scott attests to. [DE 21.] Lucas represents that all its telephone calls are recorded and that there is no recording of Scott having instructed Monterey to stop calling her. [DE 16-2 at ¶¶6, 7.] What Lucas does not attest to is that he (or anyone else) actually reviewed the recordings of all 63 of Monterey's calls to Scott to determine the facts he asserts about the calls. Given Scott's specific attestations about additional conversations, this gap in the basis of knowledge for Lucas's representations becomes more significant. Even if Lucas's declaration is taken at face value, however, it is in effect disputed by Scott's affidavit.

         The December 18, 2014 conversation was more than two years before Scott filed this suit, and therefore well outside the one-year statute of limitations. Are the only conversations that “count” for the FDCPA claim conversations that took place within the year prior to Scott's filing on February16, 2017? If so, for purposes of summary judgment, do I consider those only to be the five such calls listed in Monterey's printout of Scott's account? [DE 19-2 at 13.] Or is there sufficient doubt about that record's accuracy, or about the conversations those calls involved, to constitute a genuine dispute?

         Concerning the statute of limitations issue, Scott claims the benefit of what is called the “continuing violation” doctrine, which can stretch a claim to include conduct that preceded the statute of limitations. The only opinion of our Court of Appeals addressing whether the continuing violation doctrine applies to claims under the FDCPA is Gajewski v. Ocwen Loan Servicing, 650 Fed.Appx. 283 (7th Cir. 2016). In Gajewski, the Seventh Circuit rejected the plaintiffs' “thinking that new violations will resurrect prior, untimely claims based on a ‘continuing violation' theory.” Id. at 286. Instead, the Court of Appeals treated individual violations of the FDCPA as the type of “discrete acts, each of which is independently actionable, ” to which the continuing violation doctrine does not apply, “even if those acts form an overall pattern of wrongdoing.” Id. (quoting Kovacs v. United States, 614 F.3d 666, 676 (7th Cir. 2010) and Rodrigue v. Olin Emps. Credit Union, 406 F.3d 434, 443 (7th Cir. 2005)).[2] The Seventh Circuit concluded that “any wrongful collection activity that occurred ...


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