United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S PARTIAL MOTION FOR SUMMARY
F. COX U.S. DISTRICT JUDGE.
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”).
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.
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.
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
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
• 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
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
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
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 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
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.
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,
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.).
following facts, viewed in a light most favorable to
Defendants, are gleaned from the parties' statements and
the uncontradicted documentary evidence submitted by the
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
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).
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).
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.).
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
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).
2012, Plaintiff obtained a loan from “Check ‘N
Go.” Plaintiff borrowed money from Check ‘N Go
for “personal purposes.” (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).
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).
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).
PDL's Collection Efforts As They Relate To The Instant
Initial Contact by Defendant to Plaintiff
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).
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. (Pl.'s Stmt. at ¶ 47; Def.s'
Stmt. at ¶ 47).
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. (Id.).
Phone Calls Made To Plaintiff
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 ¶
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).
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.
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. (Pl.'s Dec. at ¶ 9a; Ex. 8 to
Pl.'s Br. at 20-22; Ex. 11 to Pl.'s Br.).
Recorded Phone Conversations Between Plaintiff & PDL
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
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).
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).
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.
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.
PDL Training/Policies Regarding FDCPA & TCPA
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).
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).
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.
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)).
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
(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).
Plaintiff Is Entitled To Summary Judgment As To His TCPA
Claim Against Defendant PDL And Defendant Belstadt
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