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Gingiloski v. Commercial Recovery Services

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

May 30, 2017



          STEPHEN J. MURPHY, III United States District Judge.

         Plaintiff Amber Gingiloski sued Defendant Commercial Recovery Services for alleged violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., Michigan Collection Practices Act (MCPA), Mich. Comp. Laws § 445.251 et seq., and the Michigan Occupational Code (MOC), Mich. Comp. Laws § 339.901 et seq. Before the Court is Defendant's motion for summary judgment or, in the alternative, for judgment on the pleadings, and for sanctions. For the following reasons, the Court will grant the motion in part and deny it in part.


         The present dispute arises from a voicemail, phone call, and letter regarding a $88.90 debt Plaintiff owed to the Michigan Head and Spine Institute. On August 19, 2016, Defendant left a voicemail for Plaintiff in which it allegedly failed to identify itself as a debt collector. ECF 1 ¶ 7. The exact contents of the voicemail are unclear. Plaintiff returned the call later that day, and claims Defendant tried to collect the debt during the call. Id. ¶ 8. Three days later, Plaintiff received a collection letter from Defendant regarding the debt. The letter advised Plaintiff that her “account has been assigned to [Defendant] for immediate payment, ” and that she had five days to “arrange for payment or further collection efforts will commence.” Id. ¶ 9. Plaintiff did not attach a copy of the letter to the complaint, but Defendant attached a “sample copy” of the letter to its motion. That “sample copy” states in pertinent part as follows:

Please be advised that your account has been assigned to COMMERCIAL RECOVERY SERVICES for immediate payment.
You have five (5) days to arrange for payment or further collection efforts will commence.
* * *
This is an attempt to collect a debt, and any information obtained will be used for that purpose. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

ECF 6, PgID 42.


         Defendant styled its motion as one for summary judgment, but also cited Rule 12(c). See ECF 6, PgID 34. Accordingly, the Court construes the motion as one for judgment on the pleadings and, in the alternative, for summary judgment. I. Judgment on the Pleadings The Court analyzes a motion for judgment on the pleadings filed under Federal Rule of Civil Procedure 12(c) using the same standard for a motion to dismiss under Rule 12(b)(6). Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008) (citation omitted). The Court must accept as true all well-pleaded material allegations of the pleadings and draw all reasonable factual inferences in favor of the non-moving party, but “need not accept as true legal conclusions or unwarranted factual inferences.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581-82 (6th Cir. 2007) (quoting Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). The complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)).

         The complaint must “raise a right to relief above the speculative level, and [] state a claim to relief that is plausible on its face.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). But a “pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the element of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

         II. Summary Judgment

         Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” for purposes of summary judgment if proof of that fact would establish or refute an essential element of the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over material facts 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, 248 (1986).

         In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences in a light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The Court must take care not to make judgments on the quality of the evidence, because the purpose of summary judgment is to determine whether a triable claim exists. Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th Cir. 1998) (“[W]eigh[ing] the evidence . . . is never appropriate at the summary judgment stage.”).


         Plaintiff claims (1) the voicemail violated the FDCPA, MOC, and MCPA because Defendant failed to disclose that it was a debt collector, ECF 1 ¶¶ 15b, 20c, 26c; (2) the letter violated each statute because its language amounted to a false representation or deceptive means of collection (FDCPA), and an inaccurate, misleading, untrue, or deceptive statement or claim (MOC and MCPA), id. ¶¶ 15a, 20a, 26a; (3) the letter violated each statute because it contained language that overshadowed Plaintiff's rights to dispute the debt or request additional information about the debt, id. ¶¶ 15c-e, 20b, 26b; and (4) the letter violated MOC and MCPA because Defendant has failed to implement a procedure designed to prevent a violation by an employee, id. ¶¶ 20d, 26d.

         Defendant challenges Plaintiff's FDCPA and MOC claims as to the voicemail and the letter, and the MCPA claims because Defendant is not a “regulated person” under the statute. Defendant also seeks sanctions against ...

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