Prendergast v. First Choice Assets, LLC
Prendergast v. First Choice Assets, LLC
Opinion of the Court
Defendant First Choice Assets, LLC ("FCA") is a debt collector that called Plaintiff Yenma Prendergast twice, attempting to identify her and discuss an outstanding loan they were trying to collect. The FCA employees did not identify their employer nor explain that they were trying to collect a debt during either of the phone calls. Prendergast filed a lawsuit against FCA, arguing that its phone calls violated the Fair Debt Collection Practices Act ("FDCPA"),
BACKGROUND
Prendergast incurred a debt with JB Robinson Jewelers (the "Debt") and stopped paying the account in August 2016. JB Robinson Jewelers sold the Debt to DNF Associates ("DNF") at some point prior to December 2016. DNF then hired FCA to collect the Debt.
FCA contacted Prendergast twice regarding the Debt. First, on December 2, 2016, an FCA employee named Louis called Prendergast. Without identifying himself beyond his first name, Louis told *1021Prendergast that he wanted to confirm her address. Prendergast asked Louis for the purpose of his call, and Louis stated "[i]t's in regards to a letter that we are supposed to be mailing." Doc. 16 ¶ 14. Prendergast again asked Louis why he was calling, and he responded "[w]ell as far as the contents of the document are concerned unfortunately the only way I can disclose them would be if I uh know who I am speaking with first uh and I have to confirm some information uh yea so that's it, either I you know I can mail it to the address we have or its [sic] up to you."
Second, FCA employee Jennifer Heebner
"Yenma: Ok, this is regarding?
Caller: It's for the proper delivery of a required letter for Yenma.
Yenma: And this letter is regarding?
Caller: Um well I the thing is I am not sure who I am speaking to if I know who I am taking [sic] to or if this is Yenma I would be more than happy to let you know what its regarding, but I can can't give out her information, to a third party its [sic] against the law, can I ask who I am speaking with?
Yenma: Ok. This is Yenma.
Caller: Oh ok great than [sic] I would be more than happy to let you know what it is. The address I have on file is 11134 S. Ave. E, Chicago, IL 60617, is that still a good address for you?
Yenma: You can go ahead and send whatever you need to send there.
Caller: Ok cuz there actually has already been a required letter already sent out to that address and we did receive [sic] any type of a response, so that is why we are contacting you directly. Now if you like I can let you know exactly what that letter was regarding but I would first have to confirm the last 4 of your SS for security purposes.
Yenma: I would not I would not like to give that info over the phone
Caller: I have your whole social, if you want Ill [sic] give you the first 5 but I do need for you to confirm the last 4 [REDACTED] as the first 5
Yenma: I'm still not going to discuss my social over the phone
Caller: I have your social we are not asking you to discuss it, I'm asking you to confirm it so I you are the right party it's so we won't give information to the wrong person, its [sic] for your own protection
Yenma: I'm not going, ok like I told someone else ok but I'm still not going to say it over the phone, if you are saying my social or possibly what social is and someone else could get that information
Caller: Well I already gave you the first 5 well no-no-nobody can hear the information cuz we are on um a recoded [sic] line, which is secured. I did already give *1022the first five as I said I have your whole entire social this is for your protection so we don't give out your information to the wrong person, its so I know you are the correct Gem-Yemna Prendergast attached to this file. Once you confirm that-I am not asking you to give me anything I am asking you to confirm what I have.
Yenma: I have another call I need to take I'm sorry, look I'm actually at work right now and I can't ..."
After the phone calls, Prendergast brought this suit, alleging multiple violations of the FDCPA,
LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett ,
ANALYSIS
In her motion for summary judgment, Prendergast argues that the Court should grant summary judgment in her favor on two of the violations of the FDCPA that she alleges in her complaint-violations of 15 U.S.C. §§ 1692d(6) and 1692e(11). FCA, on the other hand, urges this Court to *1023grant summary judgment in its favor on all of the FDCPA violations that Prendergast alleges. The Court will address each of the various sections in turn.
To establish a claim under the FDCPA, Prendergast must prove that (1) FCA qualifies as a "debt collector" as defined in § 1692a(6), (2) the actions of which she complains were taken "in connection with the collection of any debt," and (3) the actions violated one of the FDCPA's substantive provisions. Gburek v. Litton Loan Servicing LP ,
I. Section 1692d(6)
Debt collectors cannot make phone calls "without meaningful disclosure of the caller's identity," except as provided in § 1692b. 15 U.S.C. § 1692d(6). Courts have decided that meaningful disclosure requires the debt collector's employees to disclose the name of their company and the fact that the purpose of the call is debt collection. Pawelczak v. Fin. Recovery Servc., Inc. ,
The two parties do not dispute that the FCA callers did not meaningfully identify themselves within the meaning of the statute when they called Prendergast. A review of the transcripts of both phone calls clearly establishes this-neither caller explained that the purpose of the call was debt collection or that they worked for FCA. Doc. 16 ¶¶ 14, 18. The question that these motions raise is whether § 1692d(6) even applies to the phone calls, where the FCA callers were unable to confirm certain identifying information about Prendergast. If this provision covers FCA's phone calls with Prendergast, then it is clear from the facts established in the undisputed statement of facts that FCA violated it.
FCA argues that the callers were unable to confirm Prendergast's identity and so the disclosure requirements of § 1692d(6) do not apply. FCA provides no legal support for its contention that the disclosure requirements of this section only applies after a debt collector has confirmed the consumer's identity. But the Court need not reach this question, because these are not even the facts presented before it. FCA does not dispute that the person on the other end of both of the calls to Prendergast's phone number was in fact Prendergast; rather, it argues that its callers had no way of knowing at the time of the phone calls that they were speaking to Prendergast. The callers both knew that they were calling the phone number associated with Prendergast's account. In the second phone call, Prendergast explicitly stated: "This is Yenma." Doc. 16 ¶ 18. This is clear confirmation of Prendergast's identity. FCA discredits this confirmation, positing that it is "insufficient as a matter of law" because the statement was "flippant" and Prendergast then "refused to confirm any other identifying information." Doc. 20 at 7. However, FCA provides no support for these characterizations. FCA was speaking to the consumer, who identified herself by name. At this point, once Prendergast identified herself, the requirements of § 1692d(6) become entirely clear: Heebner needed to state that she worked for FCA and was calling to collect a debt, and she did not.
*1024FCA also argues that it is clear that its callers did not know whether they had contacted Prendergast because of the notes that they made in the system after the call. Even conceding that FCA is correct that its callers were uncertain that they had reached Prendergast (a fact of which the Court is doubtful, particularly in the case of the second phone call), FCA fails to identify why the callers' opinions would be relevant. These facts are immaterial; again, FCA was speaking to the consumer, who had identified herself by name. At this point, the impressions of the caller do not factor into the Court's analysis. Moreover, to the extent that FCA argues that Prendergast was "playing coy," Doc. 18 at 2; Doc. 20 at 4, in her responses to their phone calls, they fail to support this with any facts. In response to their requests to confirm her address, Prendergast responded both times that any mail could be sent to the address that the callers mentioned. This information, especially coupled with her self-identification in the second call, indicates a confirmation of her address. The only other identifying information discussed on the call was Prendergast's social security number, and the Court finds it ridiculous to suggest that declining to provide one's security number to an unidentified stranger over the phone is somehow evasive or "coy" behavior.
FCA argues that its callers were entitled to confirm Prendergast's address (two were associated with her account) and/or social security number before disclosing the necessary information about itself. FCA does not point to any portion of the FDCPA that qualifies the disclosure requirements in this way. It relies only on an unreported case from the District Court of Kansas to support this contention, which noted that "[u]nder the FDCPA, when a debt collector is unable to confirm the debtor's identity via the debtor's Social Security number, the debt collector must terminate the call." Galligan v. FMS, Inc. , No. 11-2004-JAR-JPO,
FCA also argues that it did not violate the disclosure requirements of § 1692d(6) because the phone calls fall within the provision's exception for calls made pursuant to § 1692b. The plain language of the statute prevents this interpretation of the FDCPA: § 1692b provides that debt collectors "communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall ... only if expressly requested, identify his employer [and shall] not state that such consumer owes any debt." 15 U.S.C. § 1692b (emphasis added). When its callers placed those two phone calls in December 2016, they did not communicate with any person other than the consumer-they communicated with the consumer. See Chatman v. GC Servs., LP ,
II. Section 1692e(11)
Debt collectors must "disclose in the initial ... communication with the consumer ... that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." 15 U.S.C. § 1692e(11). FCA's primary argument, that § 1692e(11) does not apply because its callers were not certain they were speaking with the consumer, fails for the same reason it fails regarding § 1692b(6). However, FCA also argues that it did not violate the disclosure requirements of § 1692e(11) specifically for two reasons. First, it argues that the phone calls do not constitute communications under the meaning of the FDCPA, and so no initial communication was made that would trigger the requirements of § 1692e(11). Second, it argues that the Seventh Circuit has imposed a materiality requirement on any violation of § 1692e, and any violation made by its phone calls were not material.
The FDCPA defines "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. § 1692a(2). Though a few courts have held otherwise, many persuasive authorities have interpreted this definition broadly and have concluded that this definition includes communications between debt collectors and consumers where the debt collectors do not specifically mention the debt. See Ramirez v. Apex Fin. Mgmt., LLC ,
FCA also argues that any violation of § 1692e must be material in order to be actionable. FCA is correct that "[g]enerally, § 1692e only protects against false statements that are material."
*1026Evans v. Portfolio Recovery Assocs., LLC ,
The Seventh Circuit's recent decision in Evans v. Portfolio Recovery Associates further undermines FCA's attempt to impose an individual materiality requirement. There, the circuit court held that any violation of § 1692e(8) would always be material. Evans ,
III. Section 1692d, Section 1692g(a), and "Other Deceptive Conduct"
In its motion, FCA also asks that the Court grant summary judgment in its favor with regard to the other sections that Prendergast raised in her complaint- §§ 1692d and 1692g(a), as well as the "other deceptive conduct" that she mentions in *1027her complaint. Because the Court has already found that FCA violated the FDCPA, it denies FCA's motion regarding these other portions of Prendergast's complaint as moot.
IV. Statutory Damages
In light of the Court's finding that FCA violated two provisions of the FDCPA, Prendergast is entitled to statutory damages. Borcherding-Dittloff v. Transworld Sys., Inc. ,
The Court may allow statutory damages up to $1,000. 15 U.S.C. § 1692k(a)(2). Although it is within the Court's discretion to decide what amount to award, the FDCPA provides various factors to consider, which include: (1) the frequency and persistence of noncompliance by the debt collector, (2) the nature of such noncompliance, and (3) the extent to which such noncompliance was intentional. 15 U.S.C. § 1692k(b)(1).
Applying the first factor to this case, FCA made, at most, two phone calls that violated the FDCPA, which violated two different provisions of the statute. Second, the nature of the calls were somewhat threatening-having a stranger call with your social security number and address and refuse to explain the reason for the call would unnerve anyone. And according to Prendergast, the calls made her "paranoid, scared, and worried." Doc. 16, Ex. A ¶ 12. Finally, "even if the violation was not intentional, it was at a minimum, measured and calculated." Edwards v. Niagara Credit Solutions ,
CONCLUSION
For the foregoing reasons, the Court grants Prendergast's motion for summary judgment [15], awards Prendergast $1,000 in statutory damages, and denies FCA's motion for summary judgment [17].
The facts in this section are derived from the joint statement of undisputed material facts [16] and accompanying exhibits. All facts are taken in the light most favorable to the non-movant in each motion.
The parties spell Heebner's name at least three different ways in their summary judgment briefing. Because Heebner is the version most frequently used, that is how the Court spells it.
The same analysis is true regarding liability under § 1692c(b), which prohibits communications with third parties regarding the collection of a debt. See Foti v. NCO Fin. Sys., Inc. ,
Reference
- Full Case Name
- Yenma PRENDERGAST v. FIRST CHOICE ASSETS, LLC
- Cited By
- 1 case
- Status
- Published