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
F. Cox United States District Court Judge
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.
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.
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.
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.
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.
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).
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.
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.
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.
Whether Defendant Violated 15 U.S.C. § 1692i by Filing
Suit in the Wrong Venue
first moves for summary judgment on Plaintiff's claim
that it ...