Katz v. Capital One Financial Corporation et al, No. 1:2009cv01059 - Document 59 (E.D. Va. 2010)
Court Description: MEMORANDUM OPINION re: 42 MOTION for Summary Judgment by Allied Interstate Inc., 52 MOTION for Summary Judgment by Marcia Miller Katz. (See Memorandum Opinion For Details). Signed by District Judge Leonie M. Brinkema on 3/18/10. (nhall)
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT FOR THE OF VIRGINIA Alexandria Division MARCIA MILLER KATZ, Plaintiff, ) v. CAPITAL ONE, et l:09cvl059(LMB/TRJ) al. Defendants. MEMORANDUM Plaintiff Marcia Miller Katz Inc. ("Allied") of privacy, OPINION has sued Allied Interstate, for breach of contract, and false reporting of harassment and invasion information to a credit reporting agency in connection with Allied's attempts to collect a debt on behalf of Capital One Bank. parties' cross-motions Before the for summary judgment. Court are the Finding that oral argument will not assist in the decisional process, will be resolved on the papers Summary judgment as to any material Corp. v. Catrett. the nonmovant, his favor. (1986) . if there is no genuine fact and the moving party is 477 U.S. Fed. 317, motion for summary judgment, of submitted by the parties. is appropriate judgment as a matter of law. R. 322-23 Civ. P. entitled to 56(c); (1985). issue Celotex In ruling on a a court should accept the evidence and all justifiable Anderson v. the motions Liberty Lobby, inferences must be drawn in Inc.. 477 U.S. 242, 255 I. This case arises plaintiff's wallet, Background from the December 2008 theft of the which contained a Capital One credit card. The plaintiff timely notified Capital One about the theft and Capital One indicated that she would not be responsible for any charges incurred by the thief. Capital One was not itemized, The next billing statement from and therefore plaintiff was unable to determine whether any charges made by the thief had been improperly billed to her. On January 16, 2009, she wrote to Capital One asking for an itemization for the relevant billing period. Capital One failed to respond to that request, charged plaintiff a ttlate fee" February 17, 2009, indicating on the in the following billing cycle. On plaintiff sent Capital One a $5.00 check "for" line that it was satisfaction of her entire debt. that notation, but in accord and Capital One never responded to but cashed the check. Plaintiff contends that the debt was satisfied when Capital One cashed her check and she has refused to pay anything further. As a result, Capital One continued thereafter to bill plaintiff for additional late charges and ultimately hired defendant Allied to collect plaintiff's debt. On April 27, 2009, Allied sent a letter to plaintiff indicating that it was attempting to collect this debt and stating that if plaintiff notified Allied within 3 0 days that she disputed the validity of the debt, then Allied would verify the debt before proceeding with collection. called Allied to obtain a 5# 2009, which was letters to faxed to the number Allied had provided, disputed, Capital One to that initial be charged $50. subsequent $100. the [sic] [sic] contact her. for the telephone call for the 2nd. that plaintiff had written in attempt to and that Allied was not "[h]enceforth, the Capital One debt and Allied Plaintiff's counsel wrote a letter on May stating that the debt was several plaintiff fax number to which she could send a letter disputing the validity of provided a fax number. In response, The settle the issue, letter also stated telephone call first call and, to her will double [sic] call; $200. to Ms. Katz will thereafter each the cost: [sic] i.e. [sic] for the 3rd call and continuing." The fax number Allied provided to plaintiff was operated by Capital One Services, to "receive, Inc. respond to, pursuant to an agreement with Allied forward, inquiries, complaints, comments, Accounts." Allied asserts and escalate Customer and requests related to the that it never received the is corroborated by Capital One Director of sworn statement access to it, that Capital and the that she had no which Process Management's received the fax, Allied had no letter was never transmitted or communicated to Allied. argues One fax, McDevitt Decl. indication that at the KU 3-5. Plaintiff fax number did not belong to Allied and states that, used a different delivery method. had she known, she would have Plaintiff alleges that Allied telephoned her fifteen to seventeen times after her attorney faxed the May 5, 2009 letter. Katz originally filed her complaint in the Circuit Court Arlington County on August 18, 2009.1 On September 18, 2009, for Allied removed it to this Court on the grounds that it asserts a federal cause of action under the Federal Debt Collection Practices Act ("FDCPA"), statute. 15 U.S.C. §1692 et sea.. Although plaintiff without directly citing to the filed a Motion to Remand, she made no claim under the FDCPA, arguing that the Court found her position a disingenuous attempt to avoid federal court and ruled that this Court has jurisdiction pursuant to the artful pleading doctrine. II. A. Count I: Breach of Discussion Contract Plaintiff's first cause of action is for breach of a contract which she claims was formed by her attorney's letter of May 5, 2009. Plaintiff argues that the letter was an offer to charge Allied a fee each time it called her and that Allied accepted that offer by calling plaintiff. Putting aside the compelling argument that such a letter could not create a contract, the uncontroverted evidence is that the fax number to which the letter was sent was 1 Capital One was originally a defendant to this action, but was dismissed because the credit card agreement with plaintiff contained a binding arbitration clause. not an Allied number, never received the the "offer" because but a Capital One number, fax.2 As such, defendant could not have accepted that offer was never received by Allied. Plaintiff has no evidence to refute that equitable estoppel, arguing fact, cases that are instead invokes reasonably Allied should be estopped from claiming it never received the letter. to several but that because plaintiff relied on the fax number Allied supplied, cites and that Allied Plaintiff confusedly inapposite here because they consider estoppel only in the context of a statute of defense and either do not frauds support plaintiff's proposition or are wholly unrelated to contract law. (T v. T. 216 Va. (holding that a husband who promised his wife 867 {Va. 1976) that he would care for her child by another man if she married him and, did treat the child as his own, was later estopped during child support proceedings Nargi v. from claiming a statute of CaMac Corp., 820 F.Supp. 253 defendant from asserting a statute of (W.D.Va. when she did, frauds violation); 1992)(estopping frauds defense where plaintiff had made substantial life changes based on an oral employment agreement); F.Supp.2d 752 Albanese v. WCI Communications, Inc.. 530 (E.D.Va 2007)(holding that employer was not equitably estopped from a statute of frauds defense because employee failed 2 It should be noted that plaintiff disputes this fact, but offers no basis for her position. Plaintiff cannot create a genuine issue of fact by simply contradicting defendant's evidence with generic, unsupported assertions. demonstrate fraud). Plaintiff may be attempting to invoke promissory estoppel, but it is unclear that defendant made any representation that it would directly receive the fax or that plaintiff's reliance on the fax number without any follow-up was reasonable. Moreover, there is no evidence that Allied intentionally acted to mislead the plaintiff. Even if the Court were to, Allied received the letter, enforceable contract. on equitable grounds, is a bargained-for exchange involving both an offer and an acceptance. Allied constituted an offer, there Even To the contrary, Katz Dep. at 30, the Court subsequent conduct, Virginia courts have made those Katz Dep. citing to at 31, indicia of of the to letter. See Plaintiff asks terms the contract cases However, of in which the facts of the offeree's accept the offer and form a contract.3 In this case, 3 For example, letter ^ 7-10. several such a finding. cases provide substantial the even Plaintiff admits to infer that Allied accepted the by its if is no evidence whatsoever that that Allied never explicitly accepted the terms 1M 14-16; that plaintiff cannot establish an A contract Allied accepted the offer. assume plaintiff cites to Chang v. intent no such First Colonial Savings Bank. a case in which the Virginia Supreme Court found exception to the general rule that advertisements are not offers because that particular advertisement was clear, definite, and explicit in its terms and the offerees relied on the offer by depositing 388 (1991). $14,000 into a savings account with the bank. Plaintiff also cites to: Princess Cruises, 242 Inc. Va. v. General EJec. Co. 143 F.3d 828 (4th Cir. 1998)(determining the final terms of a contract where "the parties do not dispute that to indicia are present. have taken the Court Allied did not alter its behavior and would same actions had the letter never been written.4 The therefore declines proper offer or in light of to the letter infer an acceptance Count II: contract of constitutes a that offer, particularly II alleges Inc.. 356 a contract was and Invasion of harassment recognized under Virginia favor claim. Harassment defendant properly argues, Fense. that summary judgment will be granted in defendant's on the breach of Count find the evidence that Allied never received the letter. Accordingly, B. to Privacy and invasion of privacy. As these causes of action are not law in this F.Supp.2d 604 context.5 See Weist v. (E.D.Va. 2005); formed by their exchange of Falwell v. documents"); E- Penthouse Thompson v. Artrip. 131 Va. 347 (Va. 1921)(stating that "acceptance may be inferred from the acts and conduct of the promisee" in holding that a tenant who, after the expiration of a lease term, remains in possession of a property with owner's permission and continues to pay rent becomes a year to year tenant); Bernstein v. Bord. 146 Va. 670 {Va. 1926)(holding that while there was no express consent to an oral offer, the actions of the parties and totality of the circumstances made clear that an agreement existed to release a debt upon the sale of debtor's real property). 4 In fact, the evidence suggests that had Allied received the letter, it would have ceased contacting plaintiff until had verified the debt. See Stmt. Undisputed Facts, Ex. A. it 5 The only statutory cause of action in Virginia for invasion of privacy is pursuant to Va. Code § 8.01-40, which relates only to unauthorized use of a likeness. See Brown v. American Broadcasting Co., 704 F.2d 1296, 1302 (4th Cir. 1983); Williams v. Newsweek. Inc., 63 F.Supp. 2d 734 {E.D.Va. 2005). There is a statutory cause of action for harassment, but only if it is based upon race, religion, 8.01-42.1.1 Neither type of lawsuit. or ethnicity. allegation is See Va. Code § involved in the instant International. Plaintiff fails Ltd.. 521 F.Supp. 1204, 1206 (W.D.Va. 1981). to cite any legal authority supporting these causes of action. See Compl.; Katz Resp. To Def.'s Interrogs. at fllA. Therefore, summary judgment will be granted to defendant on this claim. Although plaintiff has consistently argued that she is not making a claim under the FDCPA, part of plaintiff's harassment claim has been construed as brought under the FDCPA because the claim focuses on alleged abusive debt there collection practices and is no remedy for such practices under Virginia statutory law. However, under the FDCPA a debt collector's communications with consumers is generously, appears to address limited. latitude Plaintiff's claim, read the prohibition on any communication with the consumer "if the debt collector knows represented by an attorney with respect to 1692c. in the consumer is such debt." 15 U.S.C. § Plaintiff's claim may be construed as arising under this i provision on the grounds that counsel's letter of May 5, Allied on notice that the plaintiff was represented by an attorney. However, as discussed supra, received the May 5, there 2009 letter, evidence that Allied violated § The FDCPA also prohibits harassing conduct, which the is no evidence and therefore, that Allied there is no 1692c. debt collectors from engaging in statute delineates "causing a telephone to ring... 2009 put in relevant part as repeatedly or continuously with intent to annoy, 15 U.S.C. as § 1692d. "willful; K 23. abuse, [sic] However, or harass The plaintiff malicious, record shows that Allied, attempted take reflects [sic] vengeful." steps abusive, or harassing. believing plaintiff's to collect that debt. debt to ring... case volume of To Req. issue have calls made, but found that see also Gilroy v. 136-37 (D.;N.H. is to at the to be valid, the record to plaintiff in at UK 4-20. "causing a telephone sparse, most courts "it turns not only on the also on the pattern of Risk Management Alternatives, 2004); For Admis. law defining what amounts repeatedly or continuously" addressing the calls Compl. Instead, Moreover, that Allied placed no more than two calls Although the called number." characterizes Allied's phone harassing; a single day.6 See Def.'s Resp. v. the nothing in the record indicates that the phone calls were intended to be annoying, to any person at Inc., calls." 336 F.Supp.2d 492 Atneriquest Mortg. 2009) (finding a violation of Co., § 632 Akalwadi (D.Md. F.Supp.2d 132, 1692d where calls were being placed between 8:00pm and 9:00pm and the consumer had asked defendants Inc.. 520 to stop calling); F.Supp.2d 1149, 1161 (N.D.Cal. number and frequency of calls consumer); Federal Chiverton v. Sanchez v. Client Services. 2007)(holding that can show there was Financial Group, the an intent to annoy Inc.. 3 99 6 Plaintiff's Statement of Material Facts Not in Dispute asserts that Allied made four calls to plaintiff on May 1, 2009, but this information is not corroborated by any sworn testimony or documentation and therefore cannot be considered evidence. F.Supp.2d 96 (D.Conn. 2005)(finding that repeated calls after the consumer had asked debt collector to stop calling amounted to harassment): (D.Nev. Kuhn v. Account Control Tech., 865 1994)(finding that defendant who made in twenty-four minutes violated § 1692d). six calls The 1443, at in a single day, indicia of an unacceptable pattern of 3190359 (E.D. Mich. necessarily engage See calls, Saltzman v. I.e. 2009){finding that twice span on one occasion and within a four hour time span on another occasion. constitute harassment. or Allied called plaintiff within a three-hour time that inconvenient after plaintiff had asked Allied to stop calling, immediately after plaintiff hung up. 1453 to consumer evidence shows none of Allied's calls were made back-to-back, times, F.Supp. Without any this does not System, "a debt Inc., 2009 collector does WL not in harassment by placing one or two unanswered calls a day in an unsuccessful effort to reach the debtor if this effort is|unaccompanied by any oppressive conduct."); Udell v. Kansas Counselors. 2004)(holding that Inc.. 313 four calls F.Supp.2d 1135, finds there was no violation of § Count III: Plaintiff's § 1692d). collector Therefore, the 1692d and summary judgment will be granted to the defendant on this C. {D.Kan. over seven days by a debt without leaving a message does not violate Court 1143 claim. Defamation third and final claim is for defamation based on alleged false reporting of information about plaintiff to credit 10 reporting agencies. However, plaintiff admits that she has no evidence to support her claim and it is undisputed that Allied has not reported any adverse information relating to plaintiff credit bureaus. In fact, a credit report since the date of the theft. to any the plaintiff admits not having requested See Stmt. Undisputed Facts at fU 6-7. As there is no evidence to support Count III, summary judgment will be granted to defendant on this claim. III. For the reasons Conclusion stated above, plaintiff's Motion for Summary Judgment [52] will be DENIED and defendant's Motion for Summary Judgment [42] will be GRANTED, by an order to issue with this opinion. Entered this Alexandria, IB day of March, 2010. Virginia Leonie M. Brinkema United States District Judge 11
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