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Thomas v. Credit Management LP

United States District Court, N.D. Indiana, Fort Wayne Division

May 17, 2018

EVONNE THOMAS, Plaintiff,
v.
CREDIT MANAGEMENT, LP, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         The Plaintiff, Evonne Thomas, alleges that the Defendant, Credit Management, LP, violated the Fair Debt Collection Practices Act (FDCPA) by impermissibly communicating with the Plaintiff's sister about the Plaintiff's consumer debt. This matter is before the Court on the Plaintiff's Motion for Summary Judgment [ECF No. 29], the Defendant's Motion for Summary Judgment [ECF No. 31], and the Plaintiff's Motion to Strike Exhibit to Defendant's Motion for Summary Judgment [ECF No. 35].

         BACKGROUND

         A. The Pleadings

         On September 30, 2016, the Plaintiff filed her Complaint, identifying Credit Management Company as the Defendant. She alleged that, in or around July 2016, Nancy Baugmtner, who is the Plaintiff's sister, received a phone call to her home telephone number of 260-456-0732. The caller identified himself or herself as a debt collector attempting to collect a debt owed by the Plaintiff. Prior to this telephone call, Baugmtner was not aware of any collection activities against the Plaintiff. The Complaint referenced the Affidavit of Nancy Baugmtner, which was attached as Exhibit A. According to this Affidavit, on or around July 2016, Baugmtner received a voice mail on her home telephone from telephone number 260-310-6880. (ECF No. 1-1, ¶ 1). Baugmtner asserted that the “person on the phone identified themselves as calling from Credit Management Company. They stated that they were a debt collector attempting to collect on a debt. Then, they asked for my sister, Evonne Thomas.” (Id. ¶ 2)

         The Plaintiff asserted that the Defendant's communication with her sister violated 15 U.S.C. §§ 1692b(2) and c(b), which limit the communications a debt collector may have with any person other than the consumer; 15 U.S.C. § 1692d, which states that a “debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt;” and 15 U.S.C. § 1692f, which prohibits the use of “unfair or unconscionable means to collect or attempt to collect any debt.” On October 24, 2016, the Plaintiff moved to amend her Complaint on grounds that she should have identified Credit Management, LP, as the Defendant, not Credit Management Company. The Plaintiff explained that, after she initiated suit, Credit Management Company contacted the Plaintiff's counsel and advised that it was not the proper party. After the Motion to Amend was granted, the Plaintiff filed her Amended Complaint. Baugmtner's attached Affidavit was the same as the Affidavit provided with the original Complaint, except that two references to Credit Management Company were changed to Credit Management, LP.

         B. The Pending Motions

         On January 30, 2018, the Plaintiff filed her Motion for Summary Judgment. The Plaintiff reasserted the facts set forth in her Amended Complaint and Baugmtner's Affidavit. Additionally, she argued that a call log provided by the Defendant during discovery supported her contention that the Defendant called 260-456-0732, the number identified in the Amended Complaint as Baugmtner's home telephone number, on July 27, 2016, August 22, 2016, and August 31, 2016. The Plaintiff stated that she incurred the consumer debt at issue in connection with cable services through Comcast. In support, she designated the Defendant's Rule 26(a)(1) initial disclosures, which identify representatives, employees, agents and the custodian of records of Comcast as potentially having information “regarding subject debt and Credit Management's affirmative defenses.” (ECF No. 30-1 at 3.)

         Having identified these facts as being undisputed, the Plaintiff argued that summary judgment was appropriate because the Defendant's July 27, 2016, telephone communication with her sister violated the plain language of the FDCPA. Specifically, it was a communication that was not authorized by 15 U.S.C. § 1692c(b), which states:

Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

         To qualify under the § 1692b exception, the debt collector must “identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer.” 15 U.S.C. § 1692b(1). Additionally, the debt collector may not state that a consumer owes debt when “communicating with any person other than the consumer for the purpose of acquiring location information about the consumer.” Id. § 1692b(2). The Plaintiff maintains that the only evidence the Defendant produced in this litigation, the five-page call log, does not refute the Plaintiff's facts or establish the affirmative defenses set out in the Defendant's Answer to the Amended Complaint.

         In response, and through its own Motion for Summary Judgment, the Defendant argued that the Plaintiff did not present admissible evidence in support of her claims. Additionally, the Defendant presented its own evidence to refute the Plaintiff's claims. Specifically, it provided the Declaration of Nelson Wilson, the Director of Compliance & Quality Assurance for Defendant and a person familiar with the software and hardware systems used to maintain the Defendant's records. (Wilson Decl. ¶ 1-2, ECF No. 32-1.) Wilson stated that these account records include inbound and outbound communications, which are contemporaneously recorded in the system. According to Wilson, the Defendant performed a comprehensive search of its system of record to determine if the Defendant had placed any outbound calls to the telephone number identified in the Plaintiff's Complaint-260-456-0732. That search did not reveal any outbound calls. The Defendant did have a record of one outbound call being made to the number that, according to Baugmtner's Affidavit, was the originating number of the call she received at her home in or around July 2016. Furthermore, according to Wilson, the Defendant does not have any accounts in its system of record that are associated with the Plaintiff.

         The Plaintiff filed a Motion to Strike Exhibit to Defendant's Motion for Summary Judgment [ECF No. 35] directed at Wilson's Declaration. The Plaintiff argued that Wilson could not present a Declaration that relied on his “review of relevant business records” because the Defendant had failed to produce such records in ...


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