United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND FOR
SANCTIONS , AND REFERRING CASE TO MEDIATION
STEPHEN J. MURPHY, III United States District Judge.
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.
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.
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)).
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).
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).
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.”).
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.
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 ...