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Currier v. PDL Recovery Group, LLC

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

February 23, 2017

Ryan Currier Plaintiff,
v.
PDL Recovery Group, LLC, et. al., Defendants.

          OPINION & ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S PARTIAL MOTION FOR SUMMARY JUDGMENT

          SEAN F. COX U.S. DISTRICT JUDGE.

         This action is brought pursuant to the Telephone Consumer Protection Act (“TCPA”), the Fair Debt Collection Practices Act (“FDCPA”), the Michigan Occupational Code (“MOC”), and the Michigan Collection Practices Act (“MCPA”).

         Currently before the Court is Plaintiff's partial motion for summary judgment. Plaintiff's motion seeks summary judgment as to liability and statutory damages on his TCPA, FDCPA and MOC claims. Plaintiff does not intend to forfeit claims omitted from the instant motion.

         In his motion, Plaintiff asserts that Defendants PDL Recovery Group, V Cobb Associates and Jamie Belstadt violated the TCPA. Plaintiff further asserts that Defendants PDL Recovery Group, V Cobb Associates, Jamie Belstadt, and Mara Pfalzer violated certain provisions of the FDCPA. And finally, Plaintiff asserts that Defendants PDL Recovery Group, V Cobb Associates and Jamie Belstadt violated certain provisions of the MOC.

         Defendants PDL Recovery Group and Jamie Belstadt have filed a response opposing Plaintiff's motion. Defendant Mara Pfalzer, appearing pro se, was ordered to file a response to the motion after the deadline to do so had passed. Pfalzer's one-page response was filed on November 28, 2016. Defendant V Cobb Associates has not appeared in this matter and has therefore failed to file any response to the instant motion.[1]

         The Court finds that oral argument would not significantly aid in the decisional process and therefore orders that the instant motion will be decided upon the briefs. See E.D. Mich. LR 7.1(f). Plaintiff's motion shall be GRANTED IN PART AND DENIED IN PART, as follows:

• the Court shall GRANT summary judgment as to Count I on the issue of liability and statutory damages against Defendant PDL Recovery and Defendant Belstadt for willful violations of § 227(b)(1)(A)(iii) of the TCPA;
• the Court shall GRANT summary judgment on the issue of liability and statutory damages against Defendants PDL and Belstadt for violations of § 1692c(a)(1) and § 1692c(a)(3) of the FDCPA;
• the Court shall GRANT summary judgment on the issue of liability and statutory damages against Defendants PDL, Belstadt and Pfalzer for violations of § 339.918 of the MOC;
• the Court shall DENY summary judgment against Defendants PDL, Belstadt and Pfalzer as to § 1692g of the FDCPA because a material dispute of fact exists as to whether such a claim is timely;
• the Court shall DENY summary judgment against Defendants PDL and Belstadt as to § 1692c(b) and § 1692d of the FDCPA and as to § 339.915(I) and § 339.915(n) of the MOC; and
• the Court shall DENY summary judgment against Defendants PDL and Belstadt as to § 339.915(q) of the MOC

         BACKGROUND

         A. Procedural Background

         This action arises out of Plaintiff's failure to pay a loan and Defendants' efforts to collect on the defaulted loan. The named Defendants in this case are: (1) PDL Recovery Group, LLC (“PDL”); (2) Mara Pfalzer (“Pfalzer”); (3) Jamie Belstadt (“Belstadt”); (4) V, Cobb Associates, LLC (“V Cobb”); (5) John Puglisi (“Puglisi”); and (6) Mike Hasson (“Hasson”).

         Plaintiff filed this action on June 3, 2014. (Doc. #1). Plaintiff's second amended complaint, filed on June 29, 2015, is the operative complaint in this case. (Doc. #48, Pl.'s Am. Compl.). Plaintiff alleges the following four counts:

Count I Telephone Consumer Protection Act, violation of 47 U.S.C. § 227(b)(1)(A)(iii) - against all defendants;
Count II Fair Debt Collection Practices Act, violations of 15 U.S.C. §§ 1692b(1), 1692b(2), 1692b(3), 1692c(a)(1), 1692c(a)(3), 1692c(b), 1692d(5), 1692d(6), 1692e, 1692f, 1692f(1), and 1692g(A) - against all defendants;
Count III Michigan Occupational Code, as alternative to claims under Michigan Collection Practices Act, violations of M.C.L. §§ 339.915(a), 339.915(e), 339.915(g), 339.915(I), 339.915(n), 339.915(q), and 339.918(1) - against Defendants PDL and V, Cobb LLC;
Count IV[2] Michigan Collection Practices Act, as alternative to claims under Michigan Occupational Code, violations of M.C.L. §§ 445.252(e), 445.252(g), 445.252(I), 445.252(n), and 445.252(q).

(Pl.'s Am. Compl.). Plaintiff seeks actual damages, statutory damages, treble damages, statutory costs and attorney fees.

         On August 10, 2016, Plaintiff filed the instant partial motion for summary judgment. (Doc. #142, Pl.'s Br.). In it, Plaintiff seeks: (1) summary judgment against Defendants PDL, V Cobb and Belstadt as to Count I, for violating § 227(b)(1)(A)(iii) of the TCPA; (2) summary judgment against Defendants PDL, V Cobb and Belstadt as to Count II, for violating §§ 1692g, 1692c(b), 1692c(a)(1), 1692c(a)(3) and 1692d of the FDCPA; (3) summary judgment against Defendant Pfalzer as to Count II, for violating § 1692g of the FDCPA; and (3) summary judgment against Defendants PDL, V Cobb and their managing agent, Belstadt, as to Count III, for violating §§ 339.915(i), 339.915(n), 339.918 and 339.915(q) of the MOC.

         Pursuant to this Court's practice guidelines, Plaintiff's motion and supporting brief included a separate Statement of Material Facts Not In Dispute. (Doc. #144, Pl.'s Stmt.). Defendants PDL and Belstadt have filed a response to Plaintiff's motion, (Doc. #152, Def.s' Resp.), and their supporting brief included a separate Counter-Statement of Disputed Facts. (Doc. #153, Def.s' Stmt.). Defendant Pfalzer, appearing pro se, was ordered to file a response to the motion and has done so. (Doc. # 162, Pfalzer's Resp.).

         On December 15, 2016, the Court filed an Order Requiring Supplemental Briefing. (Doc. # 164). The Court's Order noted that neither party had adequately stated and supported its positions with sufficient authority. Plaintiff filed his supplemental brief on December 19, 2016. (Doc. # 165, Pl.'s Suppl. Br.). Defendants PDL and Belstadt also filed their supplemental brief on December 19, 2016. (Doc. # 166, Def.s' Suppl. Br.).

         The following facts, viewed in a light most favorable to Defendants, are gleaned from the parties' statements and the uncontradicted documentary evidence submitted by the parties.

         B. Factual Background

         Plaintiff resides in South Lyon, Michigan and is employed at American Metal Processing Co. (Ex. 2 to Pl.'s Br., Pl.'s Dec. at ¶¶ 3-4). Plaintiff is the owner of a cellular phone with the phone number ending in the last four digits of 4826.

         Defendant PDL is a debt collection company solely owned by Defendant V, Cobb, LLC. (Pl.'s Stmt. at ¶¶ 6-7; Doc. #153, Def.s' Stmt. at ¶¶ 6-7). Defendant V, Cobb is solely owned by Defendant Belstadt. (Pl.'s Stmt. at ¶ 7; Def.s' Stmt. at ¶ 7). V, Cobb conducts no other business apart from ownership of PDL. (Id. at 18-19; Pl.'s Stmt. at ¶¶ 8, 10; Def.s' Stmt. at ¶¶ 8, 10).

         Defendant Belstadt is Defendant PDL's highest ranking official. (Pl.'s Stmt. at ¶ 19; Def.s' Stmt. at ¶ 19). Defendant Belstadt has ultimate authority over the policies and practices of PDL. (Pl.'s Stmt. at ¶ 20; Def.s' Stmt. at ¶ 20).

         Defendant Pfalzer worked for Defendant PDL from May 2008 through November 2014. (Ex. 6 to Pl.'s Br., Pfalzer Dep. at 16). Throughout her employment, Defendant Pfalzer's responsibilities included the following: (1) payroll; (2) new hire applications; (3) bank deposits; (4) payment processing; and (5) sending debtor letters. (Id. at 17-18). Defendant Pfalzer was initially employed as a debt collector and then transitioned into the position of administrative director. (Id. at 40). As administrative director, she supervised the payment processing of all money that came into PDL, sent debtor letters and reported directly to Defendant Belstadt. (Id.).

         Defendant Puglisi was a debt collector working for Defendant PDL at all times relevant to this action. (Pl.'s Stmt. at ¶ 20; Def.s' Stmt. at ¶ 20). Defendant Puglisi collected debts under the alias “Joseph Kennedy, ” and will be referred to as such for purposes of this Opinion & Order. (Pl.'s Stmt. at ¶ 25; Def.s' Stmt. at ¶ 25).

         Defendant Hasson was a debt collector working for PDL at all times relevant to this action. (Pl.'s Stmt. at ¶ 27; Def.s' Stmt. at ¶ 27). Defendant Hasson remains employed as a debt collector by PDL. (Pl.'s Stmt. at ¶ 28; Def.s' Stmt. at ¶ 28).

         In 2012, Plaintiff obtained a loan from “Check ‘N Go.” Plaintiff borrowed money from Check ‘N Go for “personal purposes.”[3] (Pl.'s Dec. at ¶ 6). Specifically, Plaintiff testified that he borrowed money in order to pay bills and to pay for reparations to his personal car. (Ex. 11 to Def.s' Resp., Pl.'s Dep. at 21-22). After Plaintiff defaulted on payments, the Check ‘N Go account was referred to Defendant PDL for collection. There is no dispute that PDL representatives contacted Plaintiff regarding the Check ‘N Go debt. (Pl.'s Stmt. at ¶ 5; Def.s' Stmt. at ¶ 5).

         Plaintiff asserts that PDL representatives have contacted him approximately 32 times in an effort to collect the Check ‘N Go debt. (Pl.'s Dec. at ¶ 14). Here, PDL pursued its collection efforts in two ways. PDL employed an automated telephone dialing system to place prerecorded calls to Plaintiff's cellular phone. (Pl.'s Stmt. at ¶ 37; Def.s' Stmt. at ¶ 37). The service in which PDL subscribes to send these prerecorded messages is provided by Global Connect. (Pl.'s Stmt. at ¶ 52; Def.s' Stmt. at ¶ 52). Global Connect obtained the names and phone numbers of debtors when PDL uploaded said information on Global Connect's website. (Ex. 3 to Pl.'s Reply, Belstadt Dep. at 15). If the system detected that a call had been answered, Global Connect would play a message that PDL designated to be played. (Ex. 8 To Pl.'s Br., Global Connect Dep. at 21). If the system detected that it had reached a machine, PDL directed a different message to be played. (Id.). PDL's debt collectors also attempted to contact Plaintiff directly on his cellular phone or on his work land line. (Pl.'s Stmt. at ¶ 38; Def.s' Stmt. at ¶ 38; Pl.'s Dec. at ¶ 9).

         PDL agents are to call all numbers that are provided on a debtor's account, including the debtor's place of employment. (Pl.'s Stmt. at ¶ 56; Def.s' Stmt. at ¶ 56; Ex. 5 to Pl's Br., Hasson Dep. at 29-30). Defendant Hasson testified that, when speaking to a debtor's employer, he would typically disclose the fact that he is a debt collector calling on behalf of PDL. (Hasson Dep. at 30-31).

         1. PDL's Collection Efforts As They Relate To The Instant Action

         a. Initial Contact by Defendant to Plaintiff

         The parties dispute the date on which Plaintiff was first contacted by PDL. Defendants point to PDL's collection notes, which indicate that Plaintiff was first contacted on March 4, 2013. Plaintiff claims he was first contacted on September 19, 2013 by PDL representative “Joe Kennedy.” (Pl.'s Dep. at 26; Ex. 12 to Pl.'s Br., Pl.'s Interrogatory Answers at ¶ 1a). This phone call was made to Plaintiff's place of employment. (Pl.'s Dep. at 26). Plaintiff advised that he was not permitted to take phone calls at work and asked to be contacted on his cellular phone at 5 p.m. (Id.; Pl.'s Interrogatory Answers at ¶ 1a).

         Kennedy subsequently called Plaintiff's cellular phone at 5 p.m. (Id.). During this conversation, Kennedy introduced himself and stated that he was calling from PDL regarding the Check ‘N Go debt. (Id.). Plaintiff agreed that he owed the Check ‘N Go debt. (Id. at 27). Plaintiff also agreed to repay the debt and authorized five $50.00 electronic withdrawals from his debit card account occurring on the following dates: October 11, 2013; October 25, 2013; November 8, 2013; November 22, 2013 and December 20, 2013.[4] (Pl.'s Stmt. at ¶ 47; Def.s' Stmt. at ¶ 47).

         Plaintiff claims that he never received written notice from PDL after his initial communication with PDL agent Kennedy. (Pl.'s Dec. at ¶ 15). Defendants dispute this. Defendant Belstadt testified that PDL's system generates an initial notice/letter whenever a debtor account is first loaded into PDL's database. (Ex. 5 to Def.s' Resp., Belstadt Dep. at 95-96). Belstadt further testified that a letter would have been sent to Plaintiff on October 26, 2012 when Plaintiff's account was first placed with PDL. (Id. at 96). Belstadt acknowledged, however, that PDL's collection notes fail to indicate whether an initial letter was actually sent to Plaintiff.[5] (Id.).

         b. Phone Calls Made To Plaintiff

         The following is an overview of the phone calls taking place after Plaintiff agreed to repay the Check ‘N Go debt. On December 4, 2013, Plaintiff called PDL and communicated for a second time that he was not permitted to receive phone calls at work. (Pl.'s Interrogatory Answers at ¶ 1b).

         On January 30, 2014, Joe Kennedy attempted to contact Plaintiff by telephone at work. (Id. at ¶ 1c). Kennedy spoke to Jason Fettig, Plaintiff's supervisor, and threatened to report Plaintiff's place of employment to the Better Business Bureau (“BBB”). (Id. at ¶1c; Pl.'s Dep. at 31-32).

         On February 6, 2014, Plaintiff received a return call from a PDL agent. (Id. at ¶ 1d). During this conversation, the agent stated that PDL would remove Plaintiff's work land line from their calling list. (Id.). On February 10, 2014, PDL contacted Plaintiff at work. (Id. at ¶ 1e). During this conversation, Plaintiff requested no further contact from PDL all together. (Id.). PDL's account notes make no mention of Plaintiff's requests that PDL cease all telephonic communications with Plaintiff.

         PDL delivered automated, prerecorded messages to Plaintiff's cellular phone 11 times after Plaintiff requested no further contact: March 13, 2014; March 18, 2014; April 22, 2014; May 5, 2014; May 29, 2014; June 4, 2014; June 10, 2014; June 17, 2014; June 24, 2014; July 1, 2014; and July 8, 2014.[6] (Pl.'s Dec. at ¶ 9a; Ex. 8 to Pl.'s Br. at 20-22; Ex. 11 to Pl.'s Br.).

         c. Recorded Phone Conversations Between Plaintiff & PDL Agents

         Plaintiff personally recorded four phone calls with PDL agents. (Pl.'s Dec. at ¶ 17). Plaintiff has provided transcriptions of the phone calls (Pl.'s Stmt. at ¶ 18a-d) and has provided the Court with the audio recordings. The parties do not appear to dispute the content of the recorded calls.

         The first call recorded by Plaintiff is a prerecorded message left for Plaintiff on his cellular phone. The caller identified herself as “Ms. Watson.” (Id. at ¶ 18a). The caller advised that the message was a required notice in accordance with State and Federal regulations. (Id.). The caller provided a call back number to her department and stated that the call was made in reference to claim number 178381. (Id.). Defendant Belstadt testified that he did not know a “Ms. Watson, ” and that he had never heard that message before. (Ex. 4 to Pl.'s Br., Belstadt Dep. at 103-04). However, Belstadt admitted that the number belonged to PDL. (Id. at 104).

         In a second recorded call, a message from Defendant Hasson was left for Plaintiff on his cellular phone. Defendant Hasson stated that he was looking to get in touch with Plaintiff regarding the “Check ‘N Go declined payment from about a week ago.” (Pl.'s Stmt. at ¶ 39; Def.s' Stmt. at ¶ 39). Hasson further stated that he had just spoken to Plaintiff's supervisor, Jason Fettig, and “almost got into words with him trying to leave [Plaintiff] a message over there.” (Id.). Hasson advised that he was “not trying to jeopardize [Plaintiff's] job at all...” and concluded that he needed Plaintiff to contact him at some point. (Id.). At his deposition, Defendant Hasson confirmed that it was his voice on the phone call and that he did in fact leave that message for Plaintiff. (Ex. 5 to Def.s' Resp., Hasson Dep. at 64-65).

         In a third recorded call, Plaintiff spoke to PDL agent Joe Kennedy. (Pl.'s Dec. at 18d). Plaintiff stated that he wanted all phone calls from PDL to stop. Kennedy responded that this would not happen because Plaintiff's debt is legally retained in his office. During this conversation, Plaintiff is placed on hold while Kennedy initiates a phone call with Plaintiff's employer. Plaintiff hung up and called again. Plaintiff asked Kennedy why he called his place of employment despite Plaintiff asking that he not call there. Kennedy responded that Plaintiff supplied the number on the original loan application.

         In a fourth recorded call, Plaintiff spoke to Defendant Hasson. (Ex. 5 to Pl.'s Br., Hasson Dep. at 50). Plaintiff stated that he had previously asked PDL agent “Joe” to stop calling him. Plaintiff summarized the problems that he had experienced with PDL representative Joe, which included: (1) Joe repeatedly calling Plaintiff's place of employment without Plaintiff's consent; (2) Joe speaking to Plaintiff's employer, Jason Fettig, and threatening to report him to the Better Business Bureau; and (3) PDL making unauthorized withdrawals from Plaintiff's bank account. (Id. at 47-49). Plaintiff advised Defendant Hasson that Plaintiff no longer wanted PDL or its representatives to contact him. Plaintiff made this request at least three times. Plaintiff concluded that PDL could contact him by mail, if need be. (Id. at 44-46). Defendant Hasson confirmed Plaintiff's address and advised that a settlement letter would be sent to Plaintiff. (Id.). At his deposition, Defendant Hasson confirmed that it was his voice on the phone call.

         2. PDL Training/Policies Regarding FDCPA & TCPA

         PDL does not maintain an employee manual to help debt collectors comply with the FDCPA or the TCPA. (Ex. 3 to Pl.'s Br., Belstadt Dep. at 95). Nor does PDL use any treatises to assist its debt collectors in complying with the FDCPA and TCPA. (Pl.'s Stmt. at ¶ 68; Def.s' Stmt. at ¶ 68). Instead, all PDL employees are given an FDCPA exam before they are permitted to be on the floor. (Belstadt Dep. at 95). Passing the FDCPA exam is a condition of employment. (Id.). If they pass the FDCPA exam, Defendant Belstadt assumes that they are trained. (Id. at 95-96).

         To ensure compliance with the law, Belstadt testified that PDL will “randomly monitor and audit calls, both incoming and outgoing ... to ensure that collectors are not ... breaking the law.” (Ex. 4 to Pl.'s Br. at 34). Floor managers or Belstadt himself would answer any questions debt collectors may have had regarding FDCPA compliance. (Id. at 35). Although PDL does not offer training on the FDCPA, Belstadt testified that he would inform employees of any updates in the law on a case-by-case basis. (Id. at 38). If a debt collector is alleged to have engaged in misconduct, Belstadt testified that floor managers have been verbally instructed to make records of such allegations in an employee's file. (Ex. 3 to Pl.'s Br. at 98).

         STANDARD

         Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1984), quoting Fed.R.Civ.P. 56(c).

         The party that moves for summary judgment has the burden of showing that there are no genuine issues of material fact in the case. LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The moving party may meet its burden by showing that the nonmoving party lacks evidence to support an essential element of its case. Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1389 (6th Cir. 1993). In response, the nonmoving party must come forth with more than a “mere scintilla of evidence” in support of his or her position in order to survive summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). “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.'” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)).

         The court must view the evidence, all facts, and any inferences that may permissibly be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Civil Rule 56(c)(1) provides:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of material in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         ANALYSIS

         A. Plaintiff Is Entitled To Summary Judgment As To His TCPA Claim Against Defendant PDL And Defendant Belstadt

         In Count I, Plaintiff alleges that Defendants PDL, V, Cobb, and Belstadt violated the portion of the TCPA codified at 47 U.S.C. § 227(b)(1)(A)(iii) by making numerous phone calls to Plaintiff's cellular phone using an automatic telephone dialing system or pre-recorded voice without Plaintiff's consent. (Pl.'s Am. Compl. at ¶ 109). Plaintiff argues that PDL undisputably made prerecorded calls to Plaintiff's cellular phone after Plaintiff ...


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