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McInerney v. Roosen Varchetti & Olivier, PLLC

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

October 23, 2017

Ryan McInerney, Plaintiff,
v.
Roosen Varchetti & Olivier PLLC, Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Sean F. Cox United States District Court Judge

         This is an FDCPA case. At issue is Defendant's Motion for Summary Judgment. The Court has determined that oral argument will not assist it in determining the merits of the issues presented and therefore will decide the matter on the briefs submitted. See E.D. Mich. L.R. 7.1(f)(2). For the reasons below, the Court shall grant the motion in part and deny it in part. The Court shall grant summary judgment in Defendant's favor as to Plaintiff's 15 U.S.C. § 1692i claim for filing in the wrong venue. But the Court concludes that Defendant is not entitled to summary judgment in its favor as to Plaintiff's § 1692e and § 1692f(1) claims for false representation of a debt and attempt to collect an amount not permitted by law because there are genuine issues of fact for trial.

         BACKGROUND

         On July 10, 2015, Plaintiff Ryan McInerney applied for credit with World's Foremost Bank. Def. Stmt. of Uncontested Facts, ¶ 1 (Doc. # 15). On the application Plaintiff listed his address as 16319 Philomene Blvd., Allen Park, MI. Id. World's Foremost Bank also sent statements to Plaintiff at a post office box in Allen Park. Id. at ¶ 2.

         On September 27, 2016, Defendant Roosen, Varchetti, & Olivier, PLLC filed suit against Plaintiff in the 24th District Court, which is located in Allen Park, Michigan. Ex. 1, p. 5. Defendant was attempting to collect a consumer debt allegedly arising from Plaintiff's account with World's Foremost Bank. Id. The complaint requested a judgment of $4, 865.13 plus pre-suit interest of $568.93 for a total of $5, 434.06, plus allowable costs, attorney fees, and interest. Id. Before filing the complaint, pursuant to Defendant's policy for determining venue in consumer collection cases, Defendant verified with the United States Post Office that there was no change of address order on file for Plaintiff. Def. Stmt. of Uncontested Facts, ¶¶ 3, 5.

         After Defendant had difficulty serving Plaintiff, it sought a second address verification from the Post Office on November 4, 2016. Id. at ¶ 7. The Post Office again indicated that Plaintiff had not filed a change of address. Id. Defendant's process server was subsequently informed that Plaintiff had moved to Lincoln Park, Michigan. Id. at ¶ 8. On November 29, 2016, Defendant obtained an order for alternative service by first-class mail to Plaintiff's address in Lincoln Park. Complaint, Ex. 1, p. 2 (Doc. # 1). Plaintiff eventually filed a motion for change of venue to the 25th District Court in Lincoln Park, which Defendant did not oppose. Def. Stmt. of Uncontested Facts, ¶ 9.

         On December 29, 2016, Plaintiff called Defendant and asked about the amount due on his debt. Id. at 10; Complaint, ¶ 23. Plaintiff was told that the amount owed was $5, 529.06. Complaint, ¶ 23. This amount was $95 more than what was listed in the Collection Complaint and represented the combined total of the filing fee for the Collection Complaint ($75) and the fee for the motion for alternative service ($20). Def. Stmt. of Uncontested Facts, ¶ 11.

         Plaintiff filed this action on January 5, 2017, alleging that Defendant violated the FDCPA by filing its collections suit against Plaintiff in Allen Park despite knowing that Plaintiff resided in Lincoln Park. Plaintiff also alleged that Defendant also violated the FDCPA by artificially inflating the amount of debt due during the phone call with Plaintiff. Finally, Plaintiff alleged that Defendant violated the Michigan Regulation of Collection Practices Act, M.C.L. § 445.261, et seq. Defendant has moved for summary judgment on Plaintiff's FDCPA claims (Doc. # 16) and Plaintiff has responded (Doc. # 17).[1]

         STANDARD OF DECISION

         Summary judgment will be granted where no genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248; 106 S.Ct. 2505; 91 L.Ed.2d 202 (1986). No genuine issue of material fact exists where “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587; 106 S.Ct. 1348; 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

         The Court “must view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the non-moving party.” Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002). “The court's duty to view the facts in the light most favorable to the nonmovant does not require or permit the court to accept mere allegations that are not supported by factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009). “This is so because the nonmovant, in response to a properly made and supported motion for summary judgment, cannot rely merely on allegations but must set out specific facts showing a genuine issue for trial.” Id.

         ANALYSIS

         The FDCPA was enacted “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA is considered a strict liability statute, Kistner v. Law Offices of Michael P. Margelefsky, 518 F.3d 433, 438 (6th Cir. 2008), and a consumer need only prove that the debt collector violated “any provision” of the Act to be entitled to damages. 15 U.S.C. § 1692k.

         I. Whether Defendant Violated 15 U.S.C. § 1692i by Filing Suit in the Wrong Venue

         Defendant first moves for summary judgment on Plaintiff's claim that it ...


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