Boozer v. Enhanced Recovery Co.

RICARDO BOOZER, Plaintiff, v. ENHANCED RECOVERY COMPANY, LLC, Defendant.

Case No. 17-cv-14190

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

October 18, 2019

Paul D. Borman United States District Judge

Elizabeth A. Stafford Magistrate Judge

OPINION AND ORDER (1) GRANTING DEFENDANT ENHANCED RECOVERY COMPANY, LLC'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 23) AND (2) DISMISSING PLAINTIFF'S COMPLAINT (ECF NO. 1)

Defendant Enhanced Recovery Company, LLC (ERC), a debt collection agency, dialed the wrong number and called Plaintiff Ricardo Boozer, instead of the third-party debtor, somewhere between eight and twenty times over the course of two months. The parties do not agree on when Mr. Boozer told ERC that it had the wrong number, whether ERC called Mr. Boozer after it learned that his was the wrong number, and what the legal consequences of ERC's actions are. Mr. Boozer claims that ERC's actions violate the federal Fair Debt Collection Practices Act (FDCPA) and the parallel Michigan debt collection laws. ERC denies liability.

Specifically, Mr. Boozer claims that ERC violated the FDCPA sections that bar the following in connection with the collection of debt: communication at unusual times or places (§ 1692c(a)(1)), communication with third parties (§§ 1692c(b), 1692b), engaging in harassing or abusive conduct (§ 1692d), use of false or deceptive means (§ 1692e), and use of unfair or unconscionable means (§ 1692f). Mr. Boozer also claims that ERC violated the parallel Michigan Occupational Code provisions that bar debt collectors from (1) misrepresenting the legal rights of a creditor or debtor (Mich. Comp. L. § 339.915(f)(ii)), (2) using a harassing, oppressive or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places (Mich. Comp. L. § 339.915(n)), and (3) failing to implement a procedure designed to prevent a violation by an employee (Mich. Comp. L. § 339.915(q)). Discovery has been completed and ERC has filed a motion for summary judgment. For the following reasons, the Court grants ERC's Motion for Summary Judgment and dismisses Mr. Boozer's Complaint.

I. FACTS

On November 25, 2013, ERC, having just been hired to collect a T-Mobile debt owed by a third party, used a vendor to find the contact information for the third-party debtor (Debtor). (ECF No. 20-3, Landoll Dec, PgID 124.) The vendor conducted a data scrub that identified a cell phone number ending in 4908 as possibly belonging to Debtor. (Id.) That cell phone number did not belong to Debtor, but, instead, belonged to Mr. Boozer. (See ECF No. 21-1, Boozer Dep.,PgID 160.) ERC's records showed other numbers associated with Debtor and ERC initially focused its collection efforts on calling those numbers. (See ECF No. 25-6, Davis Dep., PgID 1460.)

In 2017, ERC began calling the 4908 number. The parties argue over the details of the calls—when they began, the total number, the phone number ERC used to make them, how many Mr. Boozer answered and said ERC had the wrong number, and how many times he called back and told ERC that it had the wrong number because he was not Debtor. ERC has produced its internal records (ECF No. 20-4, Landoll Dec. Exhibit 1, PgID 131-35), Mr. Boozer has produced his phone records, (ECF No. 25-3, Plaintiff's Response Exhibit B, PgID 331-1330), and discrepancies have been revealed between the records and Mr. Boozer's testimony. The following will describe (1) Mr. Boozer's testimony then (2) both sets of records.

Mr. Boozer, in his deposition, testified that he began receiving calls from ERC "looking for a young lady named [Debtor]" in early 2017. (ECF No. 21-1, Boozer Dep., PgID 164, 166.) He said he received "a lot" of calls, estimating that the number was "more than 10" and "maybe 20." (Id. at PgID 165.) Mr. Boozer testified that ERC did not identify itself at all when it called looking for Debtor and that he first learned the calls were coming from ERC when he called back. (Id. at PgID 164, 169, 171-73.) He said he knew when ERC was calling because "it wasthe same number," and that he had even saved that number to his contacts under either the name "[Debtor]" or "debt collector."¹ (Id. at PgID 169, 234-35.) Finally, he said that ERC sometimes left voicemail messages looking for Debtor when it called. (Id. at 182-83.)

In response to the question of whether he ever spoke with someone at ERC, Mr. Boozer testified that he spoke "several times to different call reps." (Id. at PgID 167.) When asked to estimate a number, he said "three, four" times, and that some of these conversations occurred when Mr. Boozer answered an incoming call from ERC and some of them when Mr. Boozer called ERC back. (Id.) At other points in his deposition, Mr. Boozer estimated that he placed between two and four total calls to ERC in addition to sometimes answering incoming calls from ERC. (See id. at PgID 175, 185, 215-16.)

Mr. Boozer testified that each conversation involved him telling ERC to remove his number because he is not Debtor. (See id. at PgID 167, 173, 175-76, 181-82, 188, 189, 190, 215.) In response, the ERC representative would say, according to Mr. Boozer, "[y]es. Thank you, sir. We'll remove you from our list." (Id. at PgID 182.) Mr. Boozer insisted that he told ERC "from the first call they ever called" that he was not Debtor and that he should be removed from their list,and that he received between ten and fifteen calls from ERC looking for Debtor, all after he conveyed that message. (Id. at PgID 173, 178.)

ERC's records date the first call to 4908 as September 23, 2017, at 5:09 PM, and those records indicate that Mr. Boozer did not answer. (ECF No. 20-4, Landoll Dec. Exhibit 1, PgID 133.) According to ERC, the number used to place that call, and all of the calls to Mr. Boozer, was 800-875-5097. (ECF No. 25-2, Plaintiff's Response Exhibit A, PgID 324-25.) Plaintiff's phone records verify that Mr. Boozer received an incoming call from 800-875-5097 at 5:09 PM. (ECF No. 25-3, Plaintiff's Response Exhibit B, PgID 746.) The "Duration" column for this call is blank and the "Completion Code" column states "Abnormal Completion." (Id.)

There are seven additional calls over the period from October 7, 2017 to November 28, 2017 from ERC to Mr. Boozer that both ERC's records and Mr. Boozer's phone records reflect. (ECF No. 20-4, Landoll Dec. Exhibit 1, PgID 133-34; ECF No. 25-3, Plaintiff's Response Exhibit B, PgID 756, 798, 831, 836, 837, 838, 839.) Of these seven calls, ERC indicates that three were not answered and Mr. Boozer's phone records confirm that they were not answered with the same notations in the "Duration" and "Completion Code" columns described above. (Id.) Three others are marked as "Machine, No Message Left" in ERC's records, and Mr. Boozer's phone records indicate that these calls were forwarded to his voicemail and had durations of ten, nine, and six seconds, respectively. (Id.) Mr.Boozer contends that the durations indicated on his phone records for these calls show that the ERC records are "inaccurate and fallible" because durations of ten and nine seconds suggest that ERC did leave a message on Mr. Boozer's machine even though ERC's notes say "No Message Left." (ECF No. 25, Plaintiff's Response, PgID 298-99.)

The last call from ERC to Mr. Boozer that is reflected in both ERC's records and Mr. Boozer's phone records is on November 28, 2017 at 1:47 PM. (ECF No. 20-4, Landoll Dec. Exhibit 1, PgID 134; ECF No. 25-3, Plaintiff's Response Exhibit B, PgID 839.) Mr. Boozer's phone records denote that this call was completed successfully and that it lasted twenty-four seconds. (ECF No. 25-3, Plaintiff's Response Exhibit B, PgID 839.) ERC's records contain the following notes regarding this call: "1114: tpd mop wrn#," which, it has explained, means "Third Party Man on Phone Wrong Number." (ECF No. 20-4, Landoll Dec. Exhibit 1, PgID 134; ECF No. 20-3, Landoll Dec, PgID 125.) ERC has an audio recording of the call, which Richard "Rocky" Landoll transcribed in his declaration. (See ECF No. 20-3, Landoll Dec, PgID 125.)² ERC records then indicate that this number was removed from the account. (Id.)

As far as calls from Mr. Boozer to ERC, ERC records and Mr. Boozer's phone records show one call from the 4908 number to 800-875-5097, on November 28, 2017 at 5:50 PM, which had a duration of 121 seconds. (ECF No. 20-3, Landoll Dec, PgID 125-26; ECF No. 25-3, Plaintiff's Response Exhibit B, PgID 839.) ERC has an audio recording of this call, which Richard "Rocky" Landoll transcribed in his declaration. (See ECF No. 20-3, Landoll Dec, PgID 126.) In the call Mr. Boozer says that he had gotten a call from that number earlier, and that he has previously gotten "several calls from this number" and the ERC agent responds by saying that he does not have any information on the 4908 number. (Id.) Mr. Landoll said that the agent could not find Mr. Boozer's number in the system because it had already been removed. (Id.)

There are three calls in ERC's records that are not reflected in Mr. Boozer's phone records. First, ERC's records show a call to 4908 on September 26, 2017 at 2:35 PM. (ECF No. 20-4, Landoll Dec. Exhibit 1, PgID 133.) Mr. Boozer's phone records do not indicate that Mr. Boozer received an incoming call at 2:35 PM on September 26, 2017 from any number. (ECF No. 25-3, Plaintiff's Response Exhibit B, PgID 747.) Second, ERC notes a call to 4908 on October 13, 2017 at 5:02 PM. (ECF No. 20-4, Landoll Dec Exhibit 1, PgID 133.) Mr. Boozer's phone records note two incoming calls from the number "2300" at 5:03 PM that lasted 60seconds and were completed successfully. (ECF No. 25-3, Plaintiff's Response Exhibit B, PgID 796.) Mr. Boozer's records also show over 100 incoming calls from 2300 on October 13, 2017, each lasting for exactly sixty seconds, and Plaintiffs have not alleged that 2300 belongs to ERC. (Id.)...