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Ader v. Cadillac Accounts Receivable Management, Inc.

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

January 10, 2018

WAYNE ADER, Plaintiff,
v.
CADILLAC ACCOUNTS RECEIVABLE MANAGEMENT, INC., Defendant.

          DISTRICT JUDGE THOMAS L. LUDINGTON

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. 13)

          Patricia T. Morris United States Magistrate Judge

         I. Recommendation

         Plaintiff Wayne Ader has brought suit against Defendant Cadillac Accounts Receivable Management, 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

         Plaintiff's complaint charges a violation of the Fair Debt Collection practices Act (FDCPA) by failing to communicate that a debt was disputed under 15 U.S.C. § 1692e(8). (Doc. 1.) The complaint also alleges violations of the Michigan Collection Practices Act and the Michigan Occupational Code. Defendant was attempting to collect a debt owed by Plaintiff to Great Lakes Eye Institute in the amount of $90.00 (the debt). Plaintiff alleges that “[o]n or about July 27, 2016, Mr. Ader submitted a letter to Defendant disputing the alleged Debt.” (Doc. 1 at ¶ 2.) Plaintiff further alleges that at least five companies obtained Plaintiff's credit file from Experian after he sent the dispute letter to Defendant. (Doc. 1 at ¶ 2-3.)

         This case was referred to the undersigned magistrate judge for pretrial case management on November 29, 2016. (Doc. 7.) Plaintiff filed a motion for summary judgment (Doc. 13, ) Defendant responded (Doc. 17, ) and Plaintiff replied. (Doc. 18.) Defendant contends that it reported the debt as disputed following receipt of Plaintiff's letter and thus, never failed to report the debt as disputed. (Doc. 17 at ¶ 69-70.) Plaintiff replies that “credit reports from Experian and TransUnion show that Defendant did not mark its account as disputed[.]” (Doc. 18 at ¶ 87.) 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

         The parties agree that Plaintiff is a consumer, that the debt satisfies the definition of debt under the FDCPA, and that Defendant is a debt collector under the Act. Section 1692e(8) prohibits “[c]ommunicating or threatening to communicate to any person credit information which is known or which should be ...


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