Currier v. PDL Recovery Grp., LLC

Ryan Currier Plaintiff, v. PDL Recovery Group, LLC, et. al., Defendants.

Case No. 14-12179

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 23, 2017

Hon. Sean F. Cox

OPINION & ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S PARTIAL MOTION FOR SUMMARY JUDGMENT

This action is brought pursuant to the Telephone Consumer Protection Act ("TCPA"), the Fair Debt Collection Practices Act ("FDCPA"), the Michigan Occupational Code ("MOC"), and the Michigan Collection Practices Act ("MCPA").

Currently before the Court is Plaintiff's partial motion for summary judgment. Plaintiff's motion seeks summary judgment as to liability and statutory damages on his TCPA, FDCPA and MOC claims. Plaintiff does not intend to forfeit claims omitted from the instant motion.

In his motion, Plaintiff asserts that Defendants PDL Recovery Group, V Cobb Associates and Jamie Belstadt violated the TCPA. Plaintiff further asserts that Defendants PDL Recovery Group, V Cobb Associates, Jamie Belstadt, and Mara Pfalzer violated certain provisions of the FDCPA. And finally, Plaintiff asserts that Defendants PDL Recovery Group, V Cobb Associates and Jamie Belstadt violated certain provisions of the MOC.

Defendants PDL Recovery Group and Jamie Belstadt have filed a response opposing Plaintiff's motion. Defendant Mara Pfalzer, appearing pro se, was ordered to file a response to the motion after the deadline to do so had passed. Pfalzer's one-page response was filed on November 28, 2016. Defendant V Cobb Associates has not appeared in this matter and has therefore failed to file any response to the instant motion.¹

The Court finds that oral argument would not significantly aid in the decisional process and therefore orders that the instant motion will be decided upon the briefs. See E.D. Mich. LR 7.1(f). Plaintiff's motion shall be GRANTED IN PART AND DENIED IN PART, as follows:

• the Court shall GRANT summary judgment as to Count I on the issue of liability and statutory damages against Defendant PDL Recovery and Defendant Belstadt for willful violations of § 227(b)(1)(A)(iii) of the TCPA;

• the Court shall GRANT summary judgment on the issue of liability and statutory damages against Defendants PDL and Belstadt for violations of § 1692c(a)(1) and § 1692c(a)(3) of the FDCPA;

• the Court shall GRANT summary judgment on the issue of liability and statutory damages against Defendants PDL, Belstadt and Pfalzer for violations of § 339.918 of the MOC;

• the Court shall DENY summary judgment against Defendants PDL, Belstadt and Pfalzer as to § 1692g of the FDCPA because a material dispute of fact exists as to whether such a claim is timely;

• the Court shall DENY summary judgment against Defendants PDL and Belstadt as to § 1692c(b) and § 1692d of the FDCPA and as to § 339.915(I) and § 339.915(n) of the MOC; and

• the Court shall DENY summary judgment against Defendants PDL and Belstadt as to § 339.915(q) of the MOC

BACKGROUND

A. Procedural Background

This action arises out of Plaintiff's failure to pay a loan and Defendants' efforts to collect on the defaulted loan. The named Defendants in this case are: (1) PDL Recovery Group, LLC ("PDL"); (2) Mara Pfalzer ("Pfalzer"); (3) Jamie Belstadt ("Belstadt"); (4) V, Cobb Associates, LLC ("V Cobb"); (5) John Puglisi ("Puglisi"); and (6) Mike Hasson ("Hasson").

Plaintiff filed this action on June 3, 2014. (Doc. #1). Plaintiff's second amended complaint, filed on June 29, 2015, is the operative complaint in this case. (Doc. #48, Pl.'s Am. Compl.). Plaintiff alleges the following four counts:

Count I Telephone Consumer Protection Act, violation of 47 U.S.C. § 227(b)(1)(A)(iii) - against all defendants;

Count II Fair Debt Collection Practices Act, violations of 15 U.S.C. §§ 1692b(1), 1692b(2), 1692b(3), 1692c(a)(1), 1692c(a)(3), 1692c(b), 1692d(5), 1692d(6), 1692e, 1692f, 1692f(1), and 1692g(A) - against all defendants;

Count III Michigan Occupational Code, as alternative to claims under Michigan Collection Practices Act, violations of M.C.L. §§ 339.915(a), 339.915(e), 339.915(g), 339.915(I), 339.915(n), 339.915(q), and 339.918(1) - against Defendants PDL and V, Cobb LLC;

Count IV² Michigan Collection Practices Act, as alternative to claims under Michigan Occupational Code, violations of M.C.L. §§ 445.252(e), 445.252(g), 445.252(I), 445.252(n), and 445.252(q).

(Pl.'s Am. Compl.). Plaintiff seeks actual damages, statutory damages, treble damages, statutory costs and attorney fees.

On August 10, 2016, Plaintiff filed the instant partial motion for summary judgment.(Doc. #142, Pl.'s Br.). In it, Plaintiff seeks: (1) summary judgment against Defendants PDL, V Cobb and Belstadt as to Count I, for violating § 227(b)(1)(A)(iii) of the TCPA; (2) summary judgment against Defendants PDL, V Cobb and Belstadt as to Count II, for violating §§ 1692g, 1692c(b), 1692c(a)(1), 1692c(a)(3) and 1692d of the FDCPA; (3) summary judgment against Defendant Pfalzer as to Count II, for violating § 1692g of the FDCPA; and (3) summary judgment against Defendants PDL, V Cobb and their managing agent, Belstadt, as to Count III, for violating §§ 339.915(i), 339.915(n), 339.918 and 339.915(q) of the MOC.

Pursuant to this Court's practice guidelines, Plaintiff's motion and supporting brief included a separate Statement of Material Facts Not In Dispute. (Doc. #144, Pl.'s Stmt.). Defendants PDL and Belstadt have filed a response to Plaintiff's motion, (Doc. #152, Def.s' Resp.), and their supporting brief included a separate Counter-Statement of Disputed Facts. (Doc. #153, Def.s' Stmt.). Defendant Pfalzer, appearing pro se, was ordered to file a response to the motion and has done so. (Doc. # 162, Pfalzer's Resp.).

On December 15, 2016, the Court filed an Order Requiring Supplemental Briefing. (Doc. # 164). The Court's Order noted that neither party had adequately stated and supported its positions with sufficient authority. Plaintiff filed his supplemental brief on December 19, 2016. (Doc. # 165, Pl.'s Suppl. Br.). Defendants PDL and Belstadt also filed their supplemental brief on December 19, 2016. (Doc. # 166, Def.s' Suppl. Br.).

The following facts, viewed in a light most favorable to Defendants, are gleaned from the parties' statements and the uncontradicted documentary evidence submitted by the parties.

B. Factual Background

Plaintiff resides in South Lyon, Michigan and is employed at American Metal ProcessingCo. (Ex. 2 to Pl.'s Br., Pl.'s Dec. at ¶¶ 3-4). Plaintiff is the owner of a cellular phone with the phone number ending in the last four digits of 4826.

Defendant PDL is a debt collection company solely owned by Defendant V, Cobb, LLC. (Pl.'s Stmt. at ¶¶ 6-7; Doc. #153, Def.s' Stmt. at ¶¶ 6-7). Defendant V, Cobb is solely owned by Defendant Belstadt. (Pl.'s Stmt. at ¶ 7; Def.s' Stmt. at ¶ 7). V, Cobb conducts no other business apart from ownership of PDL. (Id. at 18-19; Pl.'s Stmt. at ¶¶ 8, 10; Def.s' Stmt. at ¶¶ 8, 10).

Defendant Belstadt is Defendant PDL's highest ranking official. (Pl.'s Stmt. at ¶ 19; Def.s' Stmt. at ¶ 19). Defendant Belstadt has ultimate authority over the policies and practices of PDL. (Pl.'s Stmt. at ¶ 20; Def.s' Stmt. at ¶ 20).

Defendant Pfalzer worked for Defendant PDL from May 2008 through November 2014. (Ex. 6 to Pl.'s Br., Pfalzer Dep. at 16). Throughout her employment, Defendant Pfalzer's responsibilities included the following: (1) payroll; (2) new hire applications; (3) bank deposits; (4) payment processing; and (5) sending debtor letters. (Id. at 17-18). Defendant Pfalzer was initially employed as a debt collector and then transitioned into the position of administrative director. (Id. at 40). As administrative director, she supervised the payment processing of all money that came into PDL, sent debtor letters and reported directly to Defendant Belstadt. (Id.).

Defendant Puglisi was a debt collector working for Defendant PDL at all times relevant to this action. (Pl.'s Stmt. at ¶ 20; Def.s' Stmt. at ¶ 20). Defendant Puglisi collected debts under the alias "Joseph Kennedy," and will be referred to as such for purposes of this Opinion & Order. (Pl.'s Stmt. at ¶ 25; Def.s' Stmt. at ¶ 25).

Defendant Hasson was a debt collector working for PDL at all times relevant to this action. (Pl.'s Stmt. at ¶ 27; Def.s' Stmt. at ¶ 27). Defendant Hasson remains employed as a debtcollector by PDL. (Pl.'s Stmt. at ¶ 28; Def.s' Stmt. at ¶ 28).

In 2012, Plaintiff obtained a loan from "Check 'N Go." Plaintiff borrowed money from Check 'N Go for "personal purposes."³ (Pl.'s Dec. at ¶ 6). Specifically, Plaintiff testified that he borrowed money in order to pay bills and to pay for reparations to his personal car. (Ex. 11 to Def.s' Resp., Pl.'s Dep. at 21-22). After Plaintiff defaulted on payments, the Check 'N Go account was referred to Defendant PDL for collection. There is no dispute that PDL representatives contacted Plaintiff regarding the Check 'N Go debt. (Pl.'s Stmt. at ¶ 5; Def.s' Stmt. at ¶ 5).

Plaintiff asserts that PDL representatives have contacted him approximately 32 times in an effort to collect the Check 'N Go debt. (Pl.'s Dec. at ¶ 14). Here, PDL pursued its collection efforts in two ways. PDL employed an automated telephone dialing system to place prerecorded calls to Plaintiff's cellular phone. (Pl.'s Stmt. at ¶ 37; Def.s' Stmt. at ¶ 37). The service in which PDL subscribes to send these prerecorded messages is provided by Global Connect. (Pl.'s Stmt. at ¶ 52; Def.s' Stmt. at ¶ 52). Global Connect obtained the names and phone numbers of debtors when PDL uploaded said information on Global Connect's website. (Ex. 3 to Pl.'s Reply, Belstadt Dep. at 15). If the system detected that a call had been answered, Global Connect would play a message that PDL designated to be played. (Ex. 8 To Pl.'s Br., Global Connect Dep. at 21). If the system detected that it had reached a machine, PDL directed a different message to be played. (Id.). PDL's debt collectors also attempted to contact Plaintiff...