McBride et al v. TRS Recovery Services, Inc., No. 6:2010cv06015 - Document 30 (D. Or. 2011)
Court Description: OPINION and ORDER: Granting Defendant's Motion for Summary Judgment 19 . Signed on 03/03/2011 by Chief Judge Ann L. Aiken. (lg)
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McBride et al v. TRS Recovery Services, Inc. Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JASON CLARE MCBRIDE and REBECCA LYNN MCBRIDE, Plaintif Civil No. 10-6015-~B OPINION AND ORDER vs. AFFILIATED CREDIT SERVICES, INC., a ion of orado dba AFFILIATED CREDIT SERVICES INC., and AFFILIATED CREDIT SERVICES I Defendant. Keith D. Karnes sen, Olsen & Daines, LLC 3g95 Hagers Grove Road SE P.O. Box 12829 SalemI OR 97309 Attorney for PI iffs Jeffrey I. Hasson Davenport & Hasson, LLP 12707 NE Halsey St. Port I Oregon 97230 Attorney r Defendant 1 OPINION AND ORDER Dockets.Justia.com AIKEN, Chief Judge: Plaintiffs McBride Jason Debt Collection Pract Act s Act (TCPA). pursuant to Fed. suit against nco alleging violations of the Fair Affiliated Credit Se Protection filed R. 's mot and the Telephone Consumer moves De P. given below, de (FDCPA) for summary 56 on both claims. judgment For the reasons is GRANTED. I. BACKGROUND Defendant corporation Services, liated C conduct bus defendant was assi ss Inc. in 1 Oregon. is In a Minnesota January two accounts for bad checks written by a person named Jason McBride with a Salem, Oregon address. February 13, 2009, number of mess 2009 Between y 8, 2009, defendant left an unspeci s on the answering machine of a phone 8020" regarding checks written under identified as "McBr name McBri On July 10, 2009, Jason McBride (McBride) called defendant request company stop calling him. that the account of identity defendant stion was not his and that he was Graves Decl., ~ 6. Defendant did not re , amended complaint lists two defendants - a and a Minnesota corporation. However, s it is unrelated to any s. Graves Decl., ~ 3. Plaintiffs do not any in response. Therefore, the court re to Services, Inc. as the sole defendant case. 2 He told the OPINION AND ORDER any other communications from McBride. Thereafter, defendant left additional messages on the McBride 8020 answering machine. II. STANDARD 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 56(a). judgment as a matter of law." dispute R. Civ. P. The materiality of a fact is determined by the substantive law on the issue. Ass'n, Fed. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 809 F.2d 626, is 630 (9th Cir. 1987). determined by whether the The authenticity of a evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 u.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. u.S. 317, 323 (1986). Celotex Corp. v.Catrett, 477 The court must resolve all reasonable doubts as to the existence of genuine issues of material fact against the moving party and construe all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Elec., 809 F.2d at 630. However, the Ninth Circuit has refused to find a genuine issue of fact where the only evidence presented is -"uncorroborated and self-serving" testimony. Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). III III 3 - OPINION AND ORDER Kennedy v. Applause, III. DISCUSSION A. Fair Debt Collection Practices Act The purpose of the FDCPA is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competi ti vely disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). "The FDCPA is a strict liability statute that 'makes debt collectors liable for violations that are not knowing or intentional.'" Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010) (quoting Reichert v. Nat'l Credit Sys., Inc., 531 F. 3 d 1002, 1005 ( 9 t h Ci r. 2008)). 2 Section 1692e of the FDCPA prohibits debt collectors from making "false representations of the character ... or legal status of any debt" in conjunction with debt collection. 3 A debt collector violates § 1692e "if the least § 1692e (2) (A) . sophisticated debtor would likely be misled by a communication from [the] debt 2The FDCPA covers a person who, like McBride, denies that he owes a debt. See § 1692a (3) (defining a consumer as someone who is "obligated or allegedly obligated to pay a debt"); Id. § 1692k(a) (authorizing claims against "any debt collector who fails to comply with any provision of this subchapter with respect to any person") . 3Plaintiffs' complaint also alleges violations of § 1692d and § 1692f, however plaintiffs do not address liability under these sections in their response to defendant's motion for summary judgment. 'Therefore, I deem the claims under those sections waived. 4 - OPINION AND ORDER col ector." eir. 499 F. 2007) (internal quotations However, " se but non-material misl least the actionable under (ILislabeling a sophist [§ 1 and s ing to defendant the 1692e." de in are not F.3d at· 1033 charges post- 1" did not constitute lect a pIa 1692e from pIa defendant argues that lated iffs must 16 e by show § that lse representation that would mis consumer. § the messages were fendant from McBride, sophisti to 592 Donohue, r show that 0 collect violat calls y to esentation) . a material least omitt) . consumer ar.d there $32.89 combination of Therefore, att citat 934 sentations are not li assignment interest as "interest on pr a material 926, PIa iffs contend leaving messages and att that ing to did not owe. iffs that intiffs However, ied any f that not Ise representations,' and additionally, non-debtors regarding a that debt are not mate argument that .att ing representations. disagree th defendant's collect from a non-debtor constitutes an im.'1la ter i If pI attr iffs ed a had sented OPINION ,s that messages not find that such a misrepresentation is immaterial. unsophisticated consumer who rece 5 sentat debt to McBride, which they have not, I as a matter of ORDER a call to An laring that debt was owed in his name could be misled into thinking that he owed a debt for which he was not responsible. F.Supp. See Dutton v. Wolhar, 809 1136 (D. Del. 1992). 1130~ However, plaintiffs present no evidence that defendant's representations were false characterizations of the legal status of the debt. Plaintiffs allege that McBride was the victim of identity theft and never opened the account in question, but they provide no evidence to this targeted the wrong person. of defendant's actual court to in his representations complaint documents, affidavits materials .... " Fed. States, 953 appropriate Plaintiffs R. "by or Civ. F.2d 531, when non-moving have that the defendant In fact, plaintiffs present no evidence defendant's summary judgement motion, allegations show 542 submitted to McBride. To plaintiff must support the citing to depositions, or (9th 56(c); Cir. party nothing, see 1992) presented not even Hughes (summary no an other' v. declarations, P. defeat United judgment evidence) affidavit, to support their claim. Therefore, representation without to evidence plaintiffs, that a jury defendant could made not a find false that defendant's communications to plaintiffs constituted a violation of the FDCPA. Thus, summary judgment for defendant is proper. B. Telephone Consumer Protection Act Plaintiffs also claim that defendant's messages violated the 6 - OPINION AND ORDER Under the TCPA it is unlawful "to initiate any telephone TCPA. call to any residential prerecorded voice to line t ess the call ... y, rule or order by the is exempted by ral Communication Commission] .... " U.S.C. § 227(b) (1) (B); see "may, are not made or r a message without the prior express 1 . consent of the call The Commiss using an artificial 47 C.F.R. § 64.1200(a) (2) rule or order, exempt ... purpose; and (ii) a comme categories of calls made 47 (2010). (i) calls such classes or commercial purposes as the Commiss determines ... will not adversely affect the privacy rights that this section is int to protect ... transmission of 227 (b) (2) unsol 47 U.S.C. ited advertisement[.]" commercial lementing calls relationsh a the caller TCPA has rson called, t unsolicited create an exemptions established business and for calls that are not rtisements or telephone solicitations. 64.1200(a)(2)(iii)-( implementation of ). In TCPA, the its 1992 Commission 47 C.F.R. Order re r commerc calls which do not transmit an unsoli es Rules and Protection Act 7 business relationships." i ions Implementing 1991,71 Rad. OPINION AND ORDER Reg. the 2d (P ng stated collection calls "are adequately covered by exemptions and § (B) ¢ Regulations § [a.nd] do not include ted In isement Matter of Tel & F) r Consumer 445, <J[ 39, FCC 92-443 (October 16, 1992) why separate exemptions for a debt collectors were unnecessary). Plaintiffs argue collection calls to non-debtors are not covered by the ions, and thus, the calls to their home violated the TCPA. Whi I cert a prior business re the y agree that non-debtors lack with a debt collector, acco Commission collection calls advertisements are not soli to tations 11 within a recognized exemption. if· the court were to noh-debtors or Even with plaintiffs and other courts t t Inc., 462 F. Supp. 2d 641, 644 (E.D. Pa. 2006), pla not McBride is a non-debtor wi thre provided iffs ct to defendant. IV. CONCLUSION Plaintiffs' Act and law. cla under the Fair Debt Collection Practices Tel re Consumer Protection Act fail as a matter of re, fendant's motion for summary judgment (doc. #19) is GRANTED. IT IS SO ORDERED. Dat is ~~ day of March 2011. Ann Aiken United States District 8 - OPINION AND ORDER f Judge
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