Basham v. Midland Funding, LLC

ANGELA BASHAM, Plaintiff, v. MIDLAND FUNDING, LLC, et al., Defendants.

No. 4:15 CV 30 CDP

United States District Court, E.D. Missouri, Eastern Division

April 15, 2022

MEMORANDUM AND ORDER

CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

This matter is before me on cross-motions for summary judgment.^[1]Plaintiff, proceeding pro se brings claims under the Fair Debt Collections Practices Act (FDCPA), the Telephone Consumer Protection Act (TCPA), and the Fair Credit Reporting Act (FCRA)^[2] challenging debt collection activities undertaken by defendants.^[3] For the following reasons defendants are entitled to judgment as a matter of law on all claims asserted against them, and plaintiff's claims are dismissed with prejudice.

Background Facts

This case arises out of three debts owed by plaintiff - two involving Chase Bank (Chase 1138 and Chase 8658) and one involving Barclays Bank (Barclays 5943). These accounts were all purchased by Midland Funding between 2010 and 2012 and placed with Midland Credit Management for servicing and collection. Midland Funding still owns all three accounts but it is undisputed that Midland Funding “has no employees and did not attempt to collect on any of plaintiff's accounts.” ECF 54-1 at 1.

Plaintiff alleges that, beginning in 2011, she was contacted “daily” at home and work about the debts, and that defendants called her family members about her debts, too. She claims she sent “cease and desist” letters to defendants in 2013 and that she requested validation of the debts and “proof of an unbroken chain of title, ” and when defendants did not respond to her letters she told them “she considered the matter closed and any further collection calls she would prosecute for the violations.” Plaintiff claimed that she settled these debts with her creditors based on her attempts to effectuate an accord and satisfaction under Missouri law.^[4]

Chase 1138 Account

On February 2, 2010, Midland Funding purchased plaintiff's Chase 1138 account and assigned it to Midland Credit for collection. ECF 54-1 at 2. Midland Credit contacted plaintiff by telephone and letter about the Chase 1138 account, with the last letter dated October 21, 2010. ECF 54-1 at 2. It avers that it never contacted her by phone regarding the Chase 1138 account after November 26, 2013. ECF 54-1 at 2. Plaintiff asserts that a Midland representative called her at work in September of 2013, used profanity, and threatened to garnish her wages if she did not pay.^[5] Plaintiff alleges that a customer at work overhead the conversation, ^[6] and that calls “continued through the end of November 2013” by Midland.

Midland Credit avers that it did not own or operate dialing equipment that uses random or sequential number generators to place telephone calls when it placed calls to plaintiff regarding the Chase 1138 account. ECF 54-1 at 2. Midland Credit reported the Chase 1138 account as disputed to the credit reporting agencies from September 16, 2010 until May 16, 2016, when the account was deleted from plaintiff's credit history (referred to as deleting the tradeline). ECF 54-1 at 2. There is no evidence in the record that plaintiff reported the Chase 1138 account as disputed to the credit reporting agencies.

Chase 8658 Account

Midland Funding purchased plaintiff's Chase 8658 account on May 14, 2012 and assigned it to Midland Credit for collection. ECF 54-1 at 2-3. Midland Credit contacted plaintiff by phone and letter about the account, with the last letter dated March 21, 2013. ECF 54-1 at 3. There is no evidence in the record that plaintiff disputed the Chase 8658 account with a credit reporting agency. ECF 54-1 at 3. Midland Credit reported the account as disputed to the credit reporting agencies from July 29, 2013 until April 7, 2014, when the account was deleted from the tradeline. ECF 54-1 t 3. Midland Credit avers that it “does not now own or operate, and did not own or operate at the time the telephone calls were placed regarding the Chase 8658 Account, dialing equipment that uses random or sequential number generators to place telephone calls.” ECF 54-1 at 3.

On June 24, 2013, Midland Credit referred the Chase 8658 account to defendant Gamache & Myers (Gamache), a law firm, for collection. ECF 54-1 at 3. Gamache sent plaintiff a letter on June 27, 2013 advising her that the account had been referred to it for collection. ECF 54-2 at 2. The letter also stated the amount of the debt, the creditor, and advised her that the debt would be assumed valid unless disputed within 30 days. ECF 54-2 at 2. The letter further advised plaintiff that if she timely disputed the debt, Gamache would obtain verification of the debt and, if requested, the name and address of the original creditor. ECF 54-2 at 2. On July 5, 2013, plaintiff sent a facsimile to Gamache requesting verification of the Chase 8658 account. ECF 54-2 at 2. Gamache sent plaintiff a validation of debt letter on July 31, 2013, which included a blank credit agreement and an affidavit attesting to the sale of plaintiff's Chase account. ECF 50 Exhs. VI(B), VI(C), VI(D). Plaintiff alleges that this was insufficient documentation evidencing the debt. Plaintiff alleges that Gamache then began contacting her at work and her family members about her debt. Gamache avers that it never telephoned plaintiff with equipment using a random or sequential number generator or filed a report with any credit agency on plaintiff's Chase 8658 account.^[7] ECF 54-2 at 2, 4.

On November 18, 2013, Gamache filed a lawsuit in Crawford County Circuit Court on Midland's behalf to recover the unpaid balance on the Chase 8658 account (Case Number 13CF-AC 00640). ECF 54-2 at 2. Attached to the state court petition was an affidavit attesting to the details of plaintiff's unpaid account balance and an account statement in plaintiff's name. ECF 54-2 at Ex. B-1. On March 20, 2014, Midland, by and through Gamache, dismissed the case without prejudice. ECF 54-2 at 2.

Barclays 5943 Account

Midland Funding purchased plaintiff's Barclays 5943 account on December 14, 2012, and assigned it to Midland Credit for collection. ECF 54-1 at 3. Midland Credit contacted plaintiff by telephone and letter about the Barclays 5943 account, with the last letter dated August 23, 2013. ECF 54-1 at 3. Midland Credit avers that it never contacted plaintiff by telephone about the Barclays 5943 account after September 11, 2013, and that it never contacted her about the Barclays 5943 account with dialing equipment that uses random or sequential number generators to place telephone calls. ECF 54-1 3-4. There is no evidence in the record that plaintiff reported the Barclays 5943 account as disputed to a credit reporting agency. ECF 54-1 at 4. Midland Credit reported the account as disputed to the credit reporting agencies from January 16, 2014 until December 17, 2014, at which time the tradeline was deleted. ECF 54-1 at 4.

On November 26, 2013, Midland Credit assigned the Barclays 5943 account to Gamache for collection. ECF 54-1 at 4. A few days later, Gamache sent plaintiff a letter about the debt, advising her that it had been referred to its office for collection and stating the amount of the debt and the name of the creditor. The letter also informed plaintiff that unless she disputed the debt in writing within 30 days, it would be assumed valid, and that if so requested within that 30-day window, Gamache would provide her with verification of the debt. ECF 54-2 at 3. On January 6, 2014, Gamache sent plaintiff a letter offering to settle the Barclays 5943 account. ECF 54-2 at 3. Plaintiff responded to Gamache by facsimile, requesting verification of the Barclays 5943 account. ECF 54-2 at 3. Gamache responded on January 14, 2014, by providing a copy of her account statement. ECF 54-2 at 3, Ex. B-2. Plaintiff alleges that this documentation was insufficient to validate the debt.

Plaintiff claims that Gamache then began calling her at work and at home, and called her family members about the Barclays debt. Plaintiff alleges that the debt collectors who called her at work were loud, rude, and used foul language that could be overhead by customers. Gamache avers that it never contacted plaintiff using dialing equipment that uses a random or sequential number generator or reported anything about the Barclays 5943 account to any of the credit reporting agencies. ECF 54-2 at 4.

On March 24, 2014, Gamache, on behalf of Midland Funding, filed a lawsuit against plaintiff in Crawford County state court to recover the unpaid balance on the Barclays 5943 account (Case Number 14CF-AC0013). ECF 54-2 at 3-4, Ex. B-3. Attached to the March 24, 2014 petition was an affidavit and account statement in plaintiff's name. ECF 54-2 at Ex. B-3. Plaintiff sent Gamache a letter on June 9, 2014, about accessing her credit report. ECF 54-2 at 4. Gamache responded on June 11, 2014, that it accessed her credit information in aid of collecting a debt. ECF 54-2 at 4. Midland Bank dismissed the suit over the Barclays 5943 account without prejudice on November 4, 2014. ECF 54-2 at 4.

Plaintiff's Allegations

Plaintiff originally brought this action against defendants in state court in 2015, alleging numerous violations of state and federal law. Defendants removed the case and moved to dismiss it. After the Court ruled on defendants' motion to dismiss, (ECF 24, 27), plaintiff's remaining claims against all defendants in this case are brought under the FDCPA, 15 U.S.C. § 1692 et seq., the FCRA, 15 U.S.C. § 1681 et seq., and the TCPA, 47 U.S.C. § 227. Plaintiff claims defendant Midland Credit violated the FDCPA by calling her at work, threatening to garnish her wages, not validating her debts, continuing collection efforts without verification, calling...