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Litt v. Portfolio Recovery Assocs. LLC

United States District Court, E.D. Michigan, Southern Division

November 20, 2015

MICHAEL LITT, KAROL LITT & MARVIN LITT, Plaintiffs,
v.
PORTFOLIO RECOVERY ASSOCIATES LLC & JOHN DOE, Defendants

          For Michael Litt, Marvin Litt, Karol Litt, Plaintiffs: Rex C. Anderson, Davison, MI.

         For Portfolio Recovery Associates, LLC, Defendant: Avanti D. Bakane, Hinshaw & Culbertson LLP, Chicago, IL; David M. Schultz, Hinshaw & Culbertson, Chicago, IL; Steven A. Siman, Troy, MI.

          Michael J. Hluchaniuk, United States Magistrate Judge.

         OPINION AND ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 105) AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 110)

         PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE.

         In the claims that remain in this action, Plaintiff Michael Litt alleges that Defendant Portfolio Recovery Associates LLC (" PRA" ) contacted his parents, Marvin and Karol Litt, more than two hundred times regarding a debt owed by Michael Litt, in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. [1] Before the Court are the parties' cross-motions for summary judgment. The Court held a hearing on August 6, 2015. Following the hearing, the parties indicated an intent to attempt to resolve the issues without a ruling from the Court on their motions. The parties have informed the Court that efforts at resolution have been unsuccessful. Accordingly, for the reasons that follow, the Court will GRANT IN PART AND DENY IN PART Plaintiff's Motion for Partial Summary Judgment (ECF No. 105) and will GRANT IN PART AND DENY IN PART Defendant's Motion for Summary Judgment (ECF No. 110).

         INTRODUCTION

         Plaintiff Michael Litt claims that PRA violated the FDCPA by placing more than 200 phone calls to his parents, allegedly in an effort to collect debts owed by Michael Litt. PRA admits having placed the calls to Litt's parents' phone but responds that: (1) Michael Litt's claims are barred by the statute of limitations; (2) any claims based on calls to Michael Litt's parents were resolved by his parents' acceptance of PRA's Offer of Judgment; (3) PRA was calling Marvin and Karol Litt under the reasonable belief that Michael Litt's parents' phone number was a good number at which Michael Litt could be reached; and (4) as to calls that were placed after PRA was made aware that the parents' phone was a " wrong number" for Michael Litt, PRA is entitled to the FDCPA's bona fide error defense because the error was unintentional and PRA maintained procedures reasonably adopted to avoid such errors.

         I. BACKGROUND

         Plaintiff Michael Litt has abandoned several claims and his parents' claims have been resolved. Remaining in this action are Michael Litt's claims related to the 200-plus calls that PRA admittedly placed to his parents' phone number. His remaining claims are brought: (1) under § § 1692b(1)-(3) and 1692c(b), claiming that PRA violated those sections by placing calls to his parents without his consent and for disclosing to his parents that he owed a debt; and (2) under § 1692d -- a catchall provision -- claiming that PRA placed these calls with the intention to humiliate and embarrass him.[2]

         The following facts, largely supported by PRA's own call logs and the testimony of PRA's designated 30(b)(6) representative, Tara Privette, are undisputed. PRA purchased from the original creditors three debts owed by Michael Litt: 1) a GE Capital account (for purchases from Meijer), 2) a Four Score Resource account (for purchases from Kay Jewelers) and 3) a Citibank account (for purchases from Good Year). ECF No. 105, Pl.'s Mot. 4; Pl.'s Mot. Ex. 1, July 10, 2014 Deposition of Tara Privette 43. In an effort to collect on one or more of the above debts, PRA made the following calls to Michael Litt's home phone, XXX-XXX-1801, none of which was answered by Michael Litt:

2011

2012

2013

May: 7

July: 3

January: 23

June: 8

August: 24

February: 8

September: 22

October: 20

November: 2

December: 19

ECF No. 109, Def.'s Mot. Ex. 4, PRA Call Log, Bates Stamp PRA100-103 (showing calls placed and a duration of 0 seconds for each call); Privette Dep. 204-205; Def.'s Mot. Ex. 6, Oct. 31, 2014 Declaration of Tara Privette, ¶ ¶ 12-16.

         In an effort to collect on one or more of the three debts, PRA made the following calls to Michael Litts' parents, XXX-XXX-1078:

2010

2011

2012

2013

July: 3

January: 8

July: 3

January: 21

August: 4

February: 9

August: 24

February: 8

September: 4

March: 9

September: 19

October: 4

April: 11

October: 22

November: 8

May: 14

November: 3

December: 9

June: 11

December: 19

ECF No. 109, Def.'s Mot. Ex. 4, PRA Call Log, Bates Stamp PRA104-109; Privette Dep. 204-205; Def.'s Mot. Ex. 6, Privette Decl. ¶ 17.

         Of the 213 calls placed to Michael Litt's parents, 5 calls were answered. Def.'s Mot. Ex. 4, PRA Call Log, PRA104-109 (showing call duration of 0 seconds for all but five calls placed); Privette Decl. ¶ 19. Those five calls were placed on the following dates, for the following duration and their content is noted in PRA Call Log files as follows:

August 25, 2010 (99 second call): " Left msg at XXX-XXX-1078 [HOME] N1 IS OUT OF STATE . . NO ALT #. . . N1 IS CALIFORNIA. . .LM" (Def.'s Mot. Ex. 4, PRA Call Log, PRA66, PRA104.) Ms. Privette interprets this notation in the PRA Call Log as follows: " [A]n individual answered the phone, stated that Michael Litt was in California at the time, and when asked for an alternate phone number for the plaintiff, stated that there was no alternate number to reach him at." (ECF No. 109, Ex. 6, Privette Decl. ¶ 20). Ms. Privette further testified that this indicated to her " that at the time they called, he was out-of-state; and that he was in California; and that it was an appropriate number to leave a message for him at . . . and there was no alternate number." (Privette Dep. 126; 211-12.);
November 16, 2010 (25 second call): " DIALED RELATION 1 HOME: XXX-XXX-1078, N1'S FATHER SD N1 NOT IN" (Def.'s Mot. Ex. 4, PRA Call Log, PRA65, PRA104). Ms. Privette interprets this notation in the PRA Call Log as follows: " [T]he plaintiff's father answered and stated that he was not in." (Privette Decl. ¶ 21.) Ms. Privette further testified that this indicated to her that the caller dialed the number that was listed as the home number at that time and that plaintiff's father told the caller that Michael Litt was not in. (Privette Dep. 127, 213.)
December 1, 2010 (40 second call): " MOP SAID N1 NOT THERE AND HE IS N1 FATHER NO OTHER NO#NML" (Def.'s Mot. Ex. 4, PRA Call Log, PRA65, PRA 104). Ms. Privette interprets this notation in the PRA Call Log as follows: " [A] male answered the phone, stated he was the plaintiff's father, and when asked if there was another phone number to reach the plaintiff at, stated that there was not." (Privette Decl. ¶ 22.) Ms. Privette further testified that this indicated to her that " MOP," man on the phone, said Michael Litt was not there and that there is no better number to reach him at. (Privette Dep. 129, 213.)
January 6, 2011 (9 second call): " No Msg at XXX-XXX-1078 [HOME] PU...HU" (Def.'s Mot. Ex. 4, PRA Call Log, PRA 65, PRA104). Ms. Privette interprets this notation in the PRA Call Log as indicating that someone answered the phone and hung it up. (Privette Decl. ¶ 23.)
February 5, 2011 (27 second call): " Wrong Number - XXX-XXX-1078 [HOME] LOP SD N1 NOT IN SD SHE HAS NO NUMBER FOR N1 WRONGNU[M]BER" (Def.'s Mot. Ex. 4, PRA Call Log, PRA64, PRA105). Ms. Privette interprets this notation in the PRA Call Log as indicating that " a female answered the . . . call, stated that the plaintiff was not in, and stated that she did not have a phone number to reach the plaintiff at." (Privette Decl. ¶ 24.)[3] The PRA collector who made this call interpreted this February 5, 2011 call as indicating that XXX-XXX-1078 was a " wrong number" for Plaintiff. (ECF No. 109, Ex. 4, PRA Call Log, PRA64.)

         On February 15, 2011, just 10 days after speaking with Plaintiff's parents and noting that XXX-XXX-1078 was the " wrong number" to call to reach Plaintiff, PRA's Call Log reflects that it received the XXX-XXX-1078 again from TransUnion as a " good" phone number for Plaintiff. (Def.'s Mot. Ex. 4, PRA Call Log, PRA64, noting the following: " Phone number XXX-XXX-1078 received from TU trigger." ). PRA began calling Michael Litt's parents' phone number again on February 17, 2011, despite the February 5, 2011 notation in the PRA Call Log that the parents' phone was the " wrong number" at which to reach Michael Litt, and called his parents phone an additional 164 times through February, 2013.

         While Plaintiff does not appear to contest the authenticity of PRA Call Logs, Plaintiff does deny that those entries, made by individuals who have never been identified, or Ms. Privette's interpretation of those entries, accurately reflect the conversations that occurred between his parents and the PRA callers. Through the Declarations of his parents, Marvin and Karol Litt, Plaintiff asserts that the PRA callers called them hundreds of times from 2010-2013 and informed them that their son owed money. Pl.'s Mot. Exs. 4 and 5, August 27, 2014 Declarations of Marvin and Karol Litt. Plaintiffs' parents testify in their Declarations that they told PRA callers that Michael had not lived with them for many years and asked PRA to stop calling them, but PRA callers continued to call anyway. Id. ¶ ¶ 2-4. Both Marvin and Karol Litt testified that the PRA calls upset Karol Litt and made her medical conditions worse, caused her to be sick to her stomach and to have headaches. Id. ¶ 5. Both Marvin and Karol testify that Michael Litt was upset and embarrassed over PRA collectors calling his parents' home and that the PRA harassment strained their relationship with their son. Id ¶ 6. On October 30, 2014, Marvin Litt filed an Amended Declaration, explaining that he had reviewed the call records produced by PRA and that he believes that the records accurately reflect the number of calls the Litts received. ECF No. 108, October 23, 2014 Amended Declaration of Marvin Litt ¶ 2. Marvin Litt again asserts that PRA told them that Michael Litt owed them money. Id. ¶ 4. Marvin Litt also states that PRA never stated during any conversation that they were confirming or correcting location information for Michael Litt. Id. ¶ 5. Marvin Litt also states that he told his son Michael on several occasions that PRA was calling about his debt and that it was upsetting his mother. Id. ¶ 9.[4] Marvin and Karol Litt cannot identify the precise dates on which PRA callers told them that their son Michael owed a debt or the exact dates on which they told PRA that Michael did not live with them and asked PRA to stop calling them. Their testimony is clear, however, that these statements were made by PRA callers to them and by them to PRA callers. PRA only began recording their calls during the first quarter of 2011, so none of the calls that Marvin and/or Karol Litt answered were recorded. Privette Dep. 153-55; Privette Decl. ¶ ¶ 28-29.

         According to the testimony of Ms. Privette, PRA's Fed.R.Civ.P. 30(b)(6) deponent, PRA collectors are trained on how to comply with the FDCPA in a two week training course. Privette Decl. ¶ ¶ 37-38. The PRA's policies on the FDCPA are highlighted throughout the two week training course and collectors are required to pass an FDCPA assessment prior to making collection calls. Id. ¶ ¶ 39, 41. Each collector is required to go through an annual recertification process to ensure compliance with the FDCPA. Id. ¶ 42. Compliance audits are in place to monitor compliance with the FDCPA and disciplinary procedures are in place for violations of the FDCPA. Id. ¶ ¶ 43-45.

         Specifically, PRA trains its collectors: 1) not to disclose a debtor's debts to third parties (including a debtor's parents); 2) not to place calls to third parties more than once in an effort to obtain location information; and 3) to remove phone numbers that a third party states is the wrong number for the debtor. ECF No. 109, Ex. 4, FDCPA Training Manual, PRA003, PRA009, PRA012-014, PRA018-019; Privette Dep. 89-92, 149-151, 176, 182-83, 189, 192-93, 197, 202-03.

         II. STANDARD OF REVIEW

         Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may file a motion for summary judgment " at any time until 30 days after the close of all discovery," unless a different time is set by local rule or court order. Fed.R.Civ.P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(a). " Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987).

         A fact is " material" for purposes of a motion for summary judgment where proof of that fact " would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). " 'The central issue is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir. 2005)).

         If this burden is met by the moving party, the non-moving party's failure to make a showing that is " sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," will mandate the entry of summary judgment. Celotex, 477 U.S. at 322-23. " [A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 324. " The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. The plaintiff must present more than a mere scintilla of the evidence. To support his or her position, he or she must present evidence on which the trier of fact could find for the plaintiff." Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000) (internal quotation marks and citations omitted). In doing so, the non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires the non-moving party to introduce " evidence of evidentiary quality" demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997); see Anderson, 477 U.S. at 252 (holding that the non-moving party must produce more than a scintilla of evidence to survive summary judgment). " A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A).

         " Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment opponent to make [his] case with a showing of facts that can be established by evidence that will be admissible at trial. . . . In fact, '[t]he failure to present any evidence to counter a well-supported motion for summary judgment alone is grounds for granting the motion.' Rule 56(e) identifies affidavits, depositions, and answers to interrogatories as appropriate items that may be used to support or oppose summary judgment." Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)). " One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose." Celotex, 477 U.S. at 323-34.

         " 'For cross-motions for summary judgment, we must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the non-moving party.'" Spectrum Health Continuing Care Grp. v. Anna Marie Bowling Irrevocable Trust, 410 F.3d 304, 309 (6th Cir. 2005) (quoting Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004)). " 'The filing of cross-motions for summary judgment does not necessarily mean that an award of summary judgment is appropriate.'" Id. (alteration omitted).

         III. ANALYSIS

         A. Plaintiff is Entitled to Summary Judgment on His Claim That PRA ...


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