United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTIONS FOR
SUMMARY JUDGMENT AND TO STRIKE AFFIDAVIT OF LYNN
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
mater is presently before the Court on plaintiff's motion
for summary judgment [docket entry 15] and plaintiff's
motion to strike the affidavit of Lynn Marti [docket entry
20]. Response and reply briefs have been filed as to both
motions. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall
decide these motions without a hearing.
a debt collection practices case. Plaintiff alleges that on
September 8, 2015, and for some unspecified period of time
thereafter, defendant, a bill collector, called him on his
cell phone regarding a medical debt defendant claimed he
owed. Compl. ¶¶ 9, 13, 15. Plaintiff alleges that
he did not owe this debt because ''the amounts
claimed were covered by Medicare.'' Id.
¶ 11. Plaintiff further alleges that these calls,
some of which were made using an Automated Telephone Dialing
System (''ATDS''), continued despite his
requests that defendant stop calling. Id.
¶¶ 14, 16-17. He avers that defendant called him
''at least 66 times.'' Pl.'s Decl. ¶
9. Additionally, plaintiff alleges that after he requested an
accounting, defendant provided an ''itemized bill
that failed to include the notice required by 15 U.S.C.
§ 1692e(11).'' Compl. ¶¶ 18-19.
Plaintiff asserts claims under the Fair Debt Collection
Practices Act (''FDCPA''), the Telephone
Consumer Protection Act (''TCPA''), the
Michigan Occupational Code (''MOC''), and the
Michigan Regulation of Collection Practices Act
seeks summary judgment on all of his claims. Under
Fed.R.Civ.P. 56(a), summary judgment is appropriate
''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.'' ''[T]he mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine dispute as to any material
fact.'' Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (emphasis in original). Viewing the
evidence in the light most favorable to the opposing party,
summary judgment may be granted only if the evidence is so
one-sided that a reasonable fact-finder could not find for
the opposing party. See Id. at 248-50; Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1478-80 (6th
Cir. 1989). In other words, ''[a] material issue of
fact exists where a reasonable jury, viewing the evidence in
the light most favorable to the non-moving party, could
return a verdict for that party.'' Vollrath v.
Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir.
1990). ''The pivotal question is whether the party
bearing the burden of proof has presented a jury question as
to each element of its case.'' Hartsel v.
Keys, 87 F.3d 795, 799 (6th Cir. 1996).
first argues that he is entitled to summary judgment on his
FDCPA claim because defendant ''admitted that the
Biotech medical debt they attempted to collect from
[plaintiff] was in fact not owed by him, and that the
insurance company paid this debt.'' Pl.'s Summ.
J. Br. at 14. The debt at issue in this case arose from a
blood test performed by defendant's client, Biotech
Laboratories, at the request of plaintiff's physician,
Dr. David Rosenberg. When the bill for this test was not
paid, Biotech referred the account to defendant for
collection pursuant to a ''debt collection agency
agreement'' between these parties. See
Def.'s Ex. 5.
summary judgment motion as to this claim is denied because
defendant has produced evidence that it first learned that
plaintiff's insurer had paid the debt on September 21,
2016, when plaintiff submitted some type of proof to this
effect. See Def.'s Ex. 3 (Dolye Dep. p. 71) and
Ex. 6 (Def.'s logs) pp. 1, 3. Upon receipt of this
information, ''all contact ceased with Mr.
Mayang.'' Doyle Dep. p. 71. Apparently plaintiff
himself was unsure initially whether he owed this debt.
Sometime after defendant first contacted him, plaintiff
''called my insurance company to confirm, ''
and the insurer indicated that this bill was covered
''[b]ecause this is part of the diabetes
treatment.'' Pl.'s Dep. p. 68. For reasons
plaintiff does not explain, he did not inform defendant of
this fact. Id. p. 69. Nor, despite the allegation to
this effect in ¶ 18 of the complaint, has plaintiff
shown when or how he asked defendant to validate the debt.
Plaintiff has not shown that defendant knew it was attempting
to collect a non-existent debt, i.e., one that
plaintiff's insurer had in fact paid. Under these
circumstances, it may have been reasonable for defendant to
rely on Biotech's representation that plaintiff owed the
debt. See Smith v. Transworld Sys., Inc., 953 F.2d
1025, 1032 (6th Cir. 1992) (noting, in affirming summary
judgment for defendant bill collector, that the FDCPA
''does not require an independent investigation of
the debt referred for collection''). Further,
plaintiff's summary judgment motion does not dispose of
defendant's defense that its efforts to collect a
non-existent debt were ''not intentional and resulted
from a bona fide error notwithstanding the maintenance of
procedures reasonably adapted to avoid any such
error.'' 15 U.S.C. § 1692k(c). Plaintiff argues
that defendant ''admitted that there are no other
policies or procedures in place beyond the text of the
statutes of the FDCPA and TCPA, '' Pl.'s Reply
pp. 3-4, but this misconstrues the testimony of
defendant's representative at the cited page of his
deposition. In short, plaintiff has not demonstrated his
entitlement to summary judgment on his FDCPA claim.
next argues that he is entitled to summary judgment on his
TCPA claim because defendant called his cell phone using an
ATDS without his consent. While defendant concedes that it made
calls to plaintiffs cell phone using an ATDS or prerecorded
voice, it argues that no violation of the statute occurred
because plaintiff consented to be called. The issue of
consent is disputed. Plaintiff denies that he consented to be
called, see Pl.'s Decl. ¶
10, but at his deposition he testified that he provided his
cell phone number when he registered as a patient with Dr.
Rosenberg. Pl.'s Dep. pp. 18-20. One of the forms
plaintiff signed while registering with Dr. Rosenberg is
entitled "Patient Consent to the Use and Disclosure of
Health Information For Treatment, Payment, or Healthcare
Operations." Def's Ex. 1. This form contains this
statement: AI understand that as a part of my treatment,
payment, or health care operation, it may become necessary to
disclose my protected health information to another entity,
and I consent to such disclosure." Id. p. 1. On
the second page of this form, plaintiff had the opportunity
to add any restrictions to this consent, but he left this
portion of the form blank. Id. p. 2.
is not entitled to summary judgment on his TCPA claim because
a patient is deemed to have consented to be called by a bill
collector if he discloses his cell phone number to a
healthcare provider who then turns the account over to the
bill collector for collection. See Baisden v. Credit
Adjustments, Inc., 813 F.3d 338, 346 (6th Cir. 2016)
(concluding that "consumers may give 'prior express
consent' under the FCC's interpretations of the TCPA
when they provide a cell phone number to one entity as part
of a commercial transaction, which then provides the number
to another related entity from which the consumer incurs a
debt"). While plaintiff claims that he withdrew his
consent by telling defendant "to stop calling my cell
phone the very first time I picked up the call in August of
2015," Pl.'s Decl. ¶ 6, this
issue is disputed. Lynn Marti avers that she is the only PAR
employee who spoke with plaintiff and that he did not state
that he wanted calls to his cell phone to stop. Marti Aff
¶ 15.This factual dispute will be for
the fact-finder to resolve.
plaintiff argues that he is entitled to summary judgment on
his state-law claims because Athe same underlying facts that
support summary judgment under the FDCPA support violations
of the parallel provisions of the [state statutes]."
Pl.'s Summ. J. Br. p. 21. For the reasons stated above,
the Court has concluded that plaintiff is not entitled to
summary judgment on his federal claims. He is not entitled to
summary judgment on his state-law claims for the same
reasons. Accordingly, IT IS ORDERED that plaintiff's
motion for summary judgment is denied.
FURTHER ORDERED that plaintiff's motion to strike the
affidavit of Lynn Marti is denied.
 Section 1692e lists various
''false, deceptive, or misleading
representations'' which violate the FDCPA,
(11) The failure to disclose in the initial written
communication with the consumer and, in addition, if the
initial communication with the consumer is oral, in that
initial oral communication, that the debt collector is
attempting to collect a debt and that any information
obtained will be used for that purpose, and the failure to
disclose in subsequent communications that the communication
is from a debt collector, except ...