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Ader v. Merchants & Medical Credit Corporation, Inc.

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

January 9, 2018

WAYNE ADER, Plaintiff,
v.
MERCHANTS & MEDICAL CREDIT CORPORATION, INC., Defendant.

          DISTRICT JUDGE THOMAS L. LUDINGTON

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. 15)

          Patricia T. Morris United States Magistrate Judge

         I. RECOMMENDATION

         Plaintiff Wayne Ader has brought suit against Defendant Merchants & Medical Credit, Inc. under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.. (Doc. 1.) For the reasons stated below, I recommend DENYING Plaintiff's motion for summary judgment. (Doc. 15.)

         II. BACKGROUND AND ARGUMENTS

         The facts are not in dispute. The parties agree that Defendant failed to disclose that the debt it was attempting to collect from Plaintiff (account #6121228) was disputed by Plaintiff (in August, September, and October of 2016) when Defendant reported credit information to Experian Information Solutions, Inc., a credit reporting agency. Defendant properly reported two other account debts as disputed during this same time period. The parties agree that Defendant is a debt collector and that Defendant was collecting a debt under the FDCPA. The sole issue is whether Defendant's failure to flag the debt in account #6121228 (the debt) as disputed violates §1692e(8) of the FDCPA.

         This case was referred to the undersigned magistrate judge for full pretrial case management on November 15, 2016. (Doc. 4.) On September 1, 2017, Plaintiff filed a motion for summary judgment (Doc. 15, ) Defendant responded (Doc. 18, ) and Plaintiff replied. (Doc. 20.) The issues have been briefed, and all the arguments by the parties have been considered. Thus, the motion is ready for Report and Recommendation.

         III. ANALYSIS

         A. Summary Judgment Standards

         When a movant shows that “no genuine dispute as to any material fact” exists, the court will grant her motion for summary judgment. Fed.R.Civ.P. 56(a). In reviewing such motion, the court must view all facts and inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears “the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986)) (internal quotation marks omitted). In making its determination, a court may consider the plausibility of the movant's evidence. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper where the moving party shows that the non-moving party cannot meet its burden of proof. Celotex, 477 U.S. at 325.

         The non-moving party cannot rest merely on the pleadings in response to a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Instead, the nonmoving party has an obligation to present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). The non-movant cannot withhold evidence until trial or rely on speculative possibilities that material issues of fact will appear later. 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2739 (3d ed. 1998). “[T]o withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party.” Cosmas v. Am. Express Centurion Bank, 757 F.Supp.2d 489, 492 (D. N.J. 2010). In doing so, the nonmoving party cannot simply assert that the other side's evidence lacks credibility. Id. at 493. And while a pro se party's arguments are entitled to liberal construction, “this liberal standard does not, however, ‘relieve [the party] of his duty to meet the requirements necessary to defeat a motion for summary judgment.'” Veloz v. New York, 339 F.Supp.2d 505, 513 (S.D.N.Y. 2004) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)). “[A] pro se party's ‘bald assertion, ' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

         When the non-moving party fails to adequately respond to a summary judgment motion, a district court is not required to search the record to determine whether genuine issues of material fact exist. Street, 886 F.2d at 1479-80. The court will rely on the “facts presented and designated by the moving party.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992). After examining the evidence designated by the parties, the court then determines “‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be granted “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         B. Analysis

         As indicated above, the sole issue is whether Defendant's failure to flag the debt in account #6121228 (the debt) as disputed when reporting the debt to the credit reporting bureaus violates 15 U.S.C. §1692e(8) of the FDCPA.[1] §1692e(8) prohibits “[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.” Defendant contends that summary judgment in favor of Plaintiff should not be granted because Defendant's failure to report the account as disputed: (1) was not material; (2) was a ...


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