Dorris v. Accounts Receivable Mgmt., Inc.

GLENN E. DORRIS, Plaintiff, v. ACCOUNTS RECEIVABLE MANAGEMENT, INC., Defendant.

Civil Action No. GLR-11-3453

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Entered: March 22, 2013

MEMORANDUM OPINION

THIS MATTER arises under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. (2012); Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. Law §§ 14-201 et seq. (West 2013); and common law invasion of privacy. Plaintiff Glenn Dorris ("Dorris") alleges that Defendant Accounts Receivable Management, Inc. ("ARM") made unlawful and harassing collection calls to him and his mother, Susan Dorris ("Susan"), regarding Dorris' Home Depot account. Currently pending is ARM's Motion for Partial Summary Judgment (ECF No. 32), Dorris' Motion to Strike ARM's bona fide error defense (ECF No. 38), Dorris' Cross-Motion for Summary Judgment on all counts (ECF No. 39), and Dorris' Motion for Leave to File Motion for Summary Judgment Nunc Pro Tunc (ECF No. 40).

The Court, having reviewed the pleadings and supporting documents, finds no hearing necessary. See Local Rule 105.6(D.Md. 2011). For the reasons below, the Court will rule as follows: (1) ARM's Motion for Partial Summary Judgment will be granted in part and denied in part; (2) Dorris' Motion to Strike ARM's bona fide error defense will be granted; (3) Dorris' Cross-Motion for Summary Judgment will be granted in part and denied in part; and (4) Dorris' Motion for Leave to File Motion for Summary Judgment Nunc Pro Tunc will be summarily granted because ARM does not oppose the late filing.

I. BACKGROUND

In April 2005, Dorris used his Home Depot account to purchase materials for a home siding project. At some point, the debt became delinquent and ARM began its attempt to collect the debt in July 2010. During the course of its attempts, ARM made several calls to Dorris on his cell phone and to other numbers listed on his account. The frequency, substance, and, in one case, existence of the calls are in dispute.

Dorris avers that from July 7, 2010 to August 6, 2010, ARM called his cell phone fifteen times. (Pl.'s Mem. Supp. Cross-Mot. Summ. J. ["Pl.'s Cross-Mot."] at 3, ECF No. 39-1). On July 23, 2010, an ARM employee identified as Karen Davis ("Karen") contacted Dorris regarding the debt. (7.23.10_1343pm Recording). During the call, Dorris directed Karen to call him after 11:00 a.m. or 12:00 p.m. the following Monday because he was at work. (Id.) Dorris avers that ARM called his cell phone five timesthat Monday, July 26, 2010, beginning at approximately 12:11 p.m. (Pl.'s Reply Supp. Summ. J. ["Pl.'s Reply"] ¶ 14, ECF No. 46). At 12:19 p.m. the same day, Karen called a number that was ultimately found to belong to Dorris' mother, Susan. (See 7.26.10_1219pm Recording). During that call, Susan eventually identified herself as Dorris' mother, and inquired about whether Karen had called regarding a "bill." (Id.) When Karen answered in the affirmative, Susan then inquired about the amount of the bill, to which Karen replied that Dorris' consent was required to discuss the matter. (Id.) Karen then attempted to obtain consent by instituting a three-way call between herself, Susan, and Dorris. (Id.) At the end of the call, however, Karen informed Susan that she reached Dorris, but that he did not want Susan to resolve "it." (Id.)

When Dorris spoke with Karen at approximately 2:32 p.m. on July 26, 2010, he informed her of his disagreement with the previous call to his mother. (7.26.10_1432pm Recording). Dorris also instructed Karen to remove all contact numbers from his file except for his cell phone number. (Id.) According to Dorris, at approximately 2:54 p.m., Karen made another call to Susan. (Compl. ¶ 23, ECF No. 2). During that call, Karen allegedly attempted to settle Dorris' debt for $900 and, while doing so, stated that Dorris was an "asshole" and "arrogant," that he "talked . . . about child support issues," and that he"had no intentions of dealing with his debt." (Compl. ¶ 24-26; Susan Aff. ¶¶ 8-9, ECF No. 39-3). After refusing to settle the debt, Susan allegedly contacted Dorris to inform him of the call and, upon Dorris' request, drafted an e-mail summarizing the substance of the alleged call. Thereafter, Dorris contacted ARM to speak with a manager regarding Karen's alleged second call to Susan. (7.26.10_1509pm & 7.26.10_1511pm Recordings).

On June 9, 2011, Dorris filed suit against ARM in the Circuit Court for Hartford County, Maryland. ARM timely removed the action to this Court on November 30, 2011. The ten-count Complaint alleges violations of the FDCPA, MCDCA, and common law invasion of privacy by intrusion upon seclusion. (See ECF No. 2). Dorris seeks $7,000 in FDCPA statutory damages, actual damages under the FDCPA and the MCDCA, actual and punitive damages for invasion of privacy, and reasonable attorneys' fees and costs. (Compl. at 10).

At the conclusion of discovery, the parties filed the pending cross-motions for summary judgment. ARM seeks partial summary judgment, and Dorris seeks summary judgment on all counts. Dorris also filed a Motion to Strike ARM's bona fide error defense and a Motion for Leave to File Motion for Summary Judgment Nunc Pro Tunc.

II. DISCUSSION

A. Standard of Review

Summary judgment is only appropriate "if the movant shows that there is no genuine dispute at to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A "material fact" is a fact that might affect the outcome of a party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). Whether a fact is considered to be "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).

Moreover, "when cross-motions for summary judgment demonstrate a basic agreement concerning what legal theories and material facts are dispositive, they may be probative of the non-existence of a factual dispute." Akalwadi v. Risk Mgmt. Alts., Inc., 336 F.Supp.2d 492, 500 (D.Md. 2004) (citation and internal quotation marks omitted). In ruling on these motions, the Court must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence." Masson v. New YorkerMagazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson, 477 U.S. at 255).

B. Analysis

1. FDCPA Claims (Counts I-VII)

The purpose of the FDCPA is to (1) eliminate abusive debt collection practices, (2) ensure debt collectors who refrain from using abusive practices are not competitively disadvantaged, and (3) 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 requires a plaintiff to prove only one violation of the Act to trigger liability. Spencer v. Hendersen-Webb, Inc., 81 F.Supp.2d 582, 590-91 (D.Md. 1999) (citations omitted). Moreover, the FDCPA "covers debt collectors who regularly collect or attempt to collect . . . [consumer] debts owed or due." Akalwadi, 336 F.Supp.2d at 500 (second alteration in original) (internal quotation marks and citation omitted). It is undisputed that, at all times relevant to this action, ARM was a "debt collector," as defined in § 1692a(6), and that Dorris' Home Depot account was considered a "debt" under § 1692a(5).

a. Disputed Second Call to Susan Dorris

With the exception of Count V, each of Dorris' FDCPA claims rely entirely, or partially, upon an alleged call that Karenmade to Susan on July 26, 2010, at approximately 2:54 p.m. (the "second call").

Dorris avers that the second call is not in dispute for summary judgment purposes because ARM propounded a "bare argument" regarding the absence of a second call. (Pl.'s Cross-Mot. at 8; Pl.'s Supplement to Cross-Mot., ECF No. 68). Similarly, Dorris avers that ARM failed to refute Susan and Dorris' affidavits, the corroborating e-mail to Dorris that afternoon, and Dorris' prompt call to ARM's manager regarding the alleged call. (Id.) While it is true ARM argues a second call does not exist, the argument can hardly be considered "bare."

To support its position, ARM provided the affidavit of Thomas Novak, ARM's Executive Vice President and in-house counsel, asserting that the absence of a second call from the record of outgoing and incoming telephone calls made by ARM collectors on July 26, 2010, contributes to his determination that the call does not exist. (See Novak Aff. at 2-4, ECF No. 42-3). Novak's affidavit is corroborated by ARM's collection notes and computer generated search for Susan's number. (See Novak Aff. Exs. D & E). Both documents proffer an omission of the second call. Viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party, ARM, the Court finds that this evidence creates a genuinedispute of material fact. Moreover, Dorris' evidence refuting ARM's position challenges the completeness of ARM's records.

As a result, summary judgment is inappropriate for any FDCPA claim premised upon this disputed call. Therefore, Dorris' Motion for Summary Judgment on Counts I-IV and VI, as to the second call, is DENIED. As to Count VII, Dorris' Motion is DENIED in its entirety.

b. Remaining FDCPA Claims

Having ruled on the dispute regarding the existence of a second call, the Court now reviews Dorris' FDCPA counts solely on the basis of the remaining July 26, 2010 calls. Namely, each of the calls to Dorris and the first call to Susan.

i. 15 U.S.C. § 1692b (Counts I-III)

Counts I through III allege violations of subsections 1692b(1)-(3). Section 1692b, however, only concerns communications that seek to acquire location information from third pa...