United States District Court, E.D. Michigan, Southern Division
Michael Litt, Marvin Litt, Karol Litt, Plaintiffs: Rex C.
Anderson, Davison, MI.
Portfolio Recovery Associates, LLC, Defendant: Avanti D.
Bakane, Hinshaw & Culbertson LLP, Chicago, IL; David M.
Schultz, Hinshaw & Culbertson, Chicago, IL; Steven A. Siman,
J. Hluchaniuk, United States Magistrate Judge.
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)
BORMAN, UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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:
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, ¶ ¶
effort to collect on one or more of the three debts, PRA made
the following calls to Michael Litts' parents,
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.
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. ¶
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.) 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.)
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.
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. 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. ¶ ¶
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. ¶
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.
STANDARD OF REVIEW
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).
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
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).
Plaintiff is Entitled to Summary Judgment on His Claim That