United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING CROSS-MOTIONS FOR SUMMARY
JUDGMENT AND GRANTING LEAVE FOR PLAINTIFF TO FILE AN AMENDED
STEVEN WHALEN UNITED STATES MAGISTRATE
December 21, 2017, Plaintiff Scott Ewers filed a complaint in
this Court asserting that Defendant Rainmaker Recovery 3 Inc.
(“Rainmaker”) violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692,
et seq. Before the Court are Rainmaker's Motion
for Summary Judgment [Doc. #23] and Plaintiff's Motion
for Partial Summary Judgment [Doc. #28]. For the reasons
discussed below, both motions will be DENIED. In addition,
the Court will grant Plaintiff leave to amend his complaint
to specifically add a claim under 15 U.S.C. § 1692g(b).
about August 14, 2017, Rainmaker sent Plaintiff a letter
attempting to collect a debt allegedly owed to South Oakland
Gastroenteroloty. Complaint [Doc. #1], ¶¶
6-7. On or about September 5, 2017, Plaintiff received a
telephone call from Rainmaker attempting to collect the debt.
Id. ¶ 8.
September 13, 2017, Plaintiff sent Rainmaker a letter-which
Rainmaker received on September 18, 2017-requesting
validation of the debt and requesting that Rainmaker flag the
debt as disputed. Id. ¶ 9. On December 2, 2017,
Plaintiff obtained his Equifax credit report and noted that
Rainmaker had reported the alleged debt without indicating
that it was disputed. Id. ¶ 11. During the
month of January, 2018, Rainmaker provided Plaintiff with
validation of the debt.
time of the events in question, Rainmaker was a relatively
small collection agency with three employees and a
non-employee owner. Defendant's Motion [Doc.
#23], Exhibit 1, Affidavit of Victoria Targosz. Fred Geisler
was a collector and the assistant collections manager.
Id. Mr. Geisler testified that Rainmaker uses an
account management software system know as “Debt$Net,
” which is used to track collection accounts and
generate automated tasks based on data entry and status of
accounts. Defendant's Exhibit 2, Geisler
Deposition Transcript, at 11.
Geisler testified that he received Plaintiff's validation
request and dispute letter on September 18, 2017.
Id. at 21, 69. Defendant's Exhibit 4 is a screen
shot of the Debt$Net Change Audit Log, purporting to show
that on that date, Plaintiff's account was changed to
note that he had an attorney, and that the debt was disputed.
However, Mr. Geisler testified that there was a
“possibility” that he failed to check a box that
would have prevented the account from being reported to
Equifax as “disputed.” Geisler
Deposition, 32-33. Mr. Geisler testified that when he
audited his pending files on December 30, 2017, he first
noticed that Plaintiff's file was reported
“incorrectly, ” and saw that the
“dispute” box had not been checked. Id.
at 38. He saw that the account had been reported to Equifax
on November 30, 2017 without being flagged as disputed,
stating, “I don't know if it was an error on my end
that the box was not checked as disputed.” Id.
In any event, Mr. Geisler corrected the error, changed the
status of the account to “disputed and cancelled,
” and deleted the debt from Plaintiff's credit
report with Equifax. Id. at 36.
delivered the debt verification documents to Plaintiff's
attorney on January 30, 2018.
STANDARD OF REVIEW
judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fed. R.Civ.P. 56(c). To prevail on a motion for
summary judgment, the non-moving party must show sufficient
evidence to create a genuine issue of material fact.
Klepper v. First American Bank, 916 F.2d 337, 341-42
(6th Cir. 1990). Drawing all reasonable inferences
in favor of the non-moving party, the Court must determine
“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.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). Entry of summary judgment is
appropriate “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celetox
Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the
“record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, ” there
is no genuine issue of material fact, and summary judgment is
appropriate. Simmons-Harris v. Zelman, 234 F.3d 945,
951 (6th Cir. 2000).
the moving party in a summary judgment motion identifies
portions of the record which demonstrate the absence of a
genuine dispute over material facts, the opposing party may
not then “rely on the hope that the trier of fact will
disbelieve the movant's denial of a disputed fact,
” but must make an affirmative evidentiary showing to
defeat the motion. Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The
non-moving party must identify specific facts in affidavits,
depositions or other factual material showing “evidence
on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252
(emphasis added). If the non-moving party cannot meet that
burden, summary judgment is proper. Celotex Corp.,
477 U.S. at 322-23.
undisputed that Rainmaker erroneously failed to report
Plaintiff's account to Equifax as disputed. This is the
basis of Plaintiff's claim under §
1692e(8). The salient question in these
cross-motions for summary judgment centers on the bona fide
error defense to an FDCPA claim, specifically whether there
is a triable question of fact as ...