GRYZBOWSKI v. IC System, Inc.

691 F. Supp.2d 618

Donna GRYZBOWSKI, Plaintiff v. I.C. SYSTEM, INC., Defendant.

No. 3:CV-08-1884.

United States District Court, M.D. Pennsylvania.

March 5, 2010.

Carlo Sabatini, The Sabatini Law Firm, LLC, Dunmore, PA, for Plaintiff.

Allen R. Bunker, Comeau & Bunker, Philadelphia, PA, for Defendant.

MEMORANDUM

THOMAS I. VANASKIE, District Judge.

Donna Gryzbowski filed this Fair Debt Collection Practices Act ("FDCPA") action alleging that Defendant, I.C. System, Inc., a debt collector, violated the provisions of the FDCPA when it called and left messages on her cellular phone without identifying itself as a debt collector. The parties have stipulated to the essential facts surrounding the claim and Plaintiff has moved for summary judgment. (Dkt. 14.)¹

Defendant admits that it did not identify itself as a debt collector but claims that it could not identify itself as a debt collector in the messages in order to guard against potential third-party notification. Defendant's reasoning is unpersuasive. The argument is essentially a claim that it admittedly violated one section of the FDCPA in order to guard against the potential violation of another provision of the FDCPA. As Defendant's messages violated the FDCPA by failing to identify itself as a debt-collector, Plaintiff's motion for summary judgment will be granted.

I. BACKGROUND

Plaintiff is an adult individual residing in Archbald, Pennsylvania, and Defendant is a "debt collector" located in Minnesota that collects debts in Pennsylvania. (Plaintiff's Statement of Undisputed Material Facts ("PSUMF"), Dkt. 15, at ¶¶ 1-2.) Defendant attempted to collect an alleged debt from Plaintiff by placing at least eleven phone calls to Plaintiff and leaving voicemails requesting she return the calls. (Id. at ¶¶ 3-5.) In one of the messages Defendant disclosed that it was a debt collector, but in the other messages did not. (Id. at ¶ 6.) "In four of the messages, the callers disclosed their individual names, but did not state that they were an employee of Defendant or disclose Defendant's name." (Id. at ¶ 7.) In two of the messages the caller disclosed Defendant's name, but did not disclose their individual names. (Id. at ¶ 8.)

Defendant avers that it received Plaintiff's account from Washington Mutual in order to collect a debt. (Defendant's Counter-Statement of Undisputed Material Fact, ("DCSUMF"), Dkt. 17, at ¶ 1.) Washington Mutual provided Defendant with the telephone number, as Plaintiff's phone number at her place of employment. (Id. at ¶ 2.) Defendant placed calls to this number with the understanding that it was Plaintiff's place of employment and asserts that when leaving messages at a debtor's place of employment, Defendant does not identify itself as a debt collector to avoid the possibility of inadvertent disclosure to third parties. (Id. at ¶¶ 3-4.)

Plaintiff avers that during the applicable period her cell phone number was (570) 470-5304. (Plaintiff's Affidavit, Dkt. 24-2, at ¶ 1.) She avers that her introductory announcement for her voicemail on this cell phone is:

Hi, you have reached Donna. Please leave your name, your number, and a brief message and a good time to call and I'll get back to you just as soon as I can. I appreciate your call, so I'll talk to you when I can. Thank you. Bye.

(Id. at ¶ 2.) Plaintiff avers that to the best of her knowledge, the phone number (570) 470-5304 has never been the phone number for her place of work.

In addition to the above-stated non-disputed facts the parties entered into a stipulation of facts. (Stipulation, Dkt. 12.) The thirteen (13) paragraph stipulation states the following:

1. Defendant withdraws Affirmative Defenses 1, 3, 5, 6, 7, 8, and 10.

2. If Plaintiff shows that the FDCPA has been violated, then $1,000.00 statutory damages will be awarded under 15 U.S.C. § 1692k(a)(2)(A). This agreement is not to be construed as any type of admission with regard to the proving of a violation or a waiver of any defenses Defendant has under the statute or interpretive case law.

3. On September 16, 2008 Defendant phoned (570) 470-5304 and left this message: "Hello this message is for Donna Gryzbowski. This is IC System calling in regards to a personal business matter. Please give us a call back at 1(866) 903-1001."

4. On September 17, 2008 Defendant phoned (570) 470-5304 and left this message: "This message is for Donna Gryzbowski. This is Marisa calling from IC System. If you could give us a call back at 1(866) 903-1001 and this is regarding a personal business matter."

5. On September 18, 2008 Defendant phoned (570) 470-5304 and left this message:

"Hi, my name is Si calling from IC System. Can a Donna Gryzbowski call us back at (866) 903-1001. This is regarding a personal business matter. Please call us back. Thanks."

6. On September 20, 2008 Defendant phoned (570) 470-5304 and left this message: "Hi, my name is Si calling from IC System. Can a Donna Gryzbowski please call us back at (866) 903-1001. This is IC System calling in regards to a personal business matter. Please give us a call back. Thank you."

7. On September 25, 2008 Defendant phoned (570) 470-5304 and left this message: "Good morning, this is Becky. Please have Donna Gryzbowski give me a call at 1(866) 903-1001 regarding an important personal matter. Thank you."

8. On September 26, 2008 Defendant phoned (570) 470-5304 and left this message: "This is Andria with IC System. Please ask Donna Gryzbowski to give us a call back at our toll free number 1(866) 903-1001 concerning an important time-sensitive matter. Thank you."

9. On September 27, 2008 Defendant phoned (570) 470-5304 and left this message: "Donna Gryzbowski please call Roger at (866) 903-1001 regarding a personal business matter."

10. On September 30, 2008 Defendant phoned (570) 470-5304 and left this message: "This is for Donna. Donna you have a very important business matter to attend to with IC System. You need to call (866) 903-1001 in order to take care of that matter."

11. On October 1, 2008 Defendant phoned (57) 470-5304 and left a message. The following is a verbatim transcript of that message except that there is a portion of the recording which is not clear. The underlined space represents that portion. "Hi, this message is for Donna. I'm calling from IC System about an important business matter of yours. Could you please give us a call back at our toll free number (866) 903-1001.______. Please contact IC System in regard to an important business matter at 1(800) 325-6884. We are a debt collector attempting to collect a debt. Any information obtained will be used for that purpose. Again, please contact us at 1(800) 325-6884."

12. On October 2, 2008 Defendant phoned (570) 470-5304 and left this message: "Hi, this is Nancy, Please have Donna Gryzbowski give me a call at 1(866) 903-1001 regarding a personal matter. And the telephone number is 1(866) 903-1001. Thank you. Bye."

13. On October 6, 2008 Defendant phoned (570) 470-5304 and left this message: "Donna Gryzbowski please call Roger at (866) 903-1001 regarding a personal business matter."

(Id. at 1-4.)

As a result of the messages left on her cell phone, Donna Gryzbowski filed this action on October 10, 2008, alleging violation of the FDCPA. (Comp., Dkt. 1.) Discovery concluded in this matter on April 15, 2009, and on April 30, 2009, Plaintiff filed a Motion for Summary Judgment. (Dkt. 14.) The matter has been fully briefed and is ripe for review.

II. DISCUSSION

It is Plaintiff's contention that the messages left by Defendant on Plaintiff's cellular telephone voice mail violated sections 1692e(11) and 1692d(6) of the FDCPA. (Mt. S.J., Dkt. 16, at 3.) Defendant counters that it believed that it was contacting Plaintiff at her place of employment, not on her personal cellular telephone, and because of this belief Defendant did not identify itself as a debt collector in order to guard against an un-authorized communication with third parties. (Opp. Mt. S.J., Dkt. 17, at 12.)

A. Section 1692e(11)

"`The FDCPA was enacted in 1977 as an amendment to the Consumer Credit Protection Act to protect consumers from a host of unfair, harassing, and deceptive collection practices without imposing unnecessary restrictions on ethical debt collectors.'" FTC v. Check Investors, Inc., 502 F.3d 159, 165 (3d Cir.2007) (quoting Staub v. Harris, 626 F.2d 275, 276-77 (3d Cir.1980)). The primary goal of the FDCPA is to eliminate abusive debt collection practices by debt collectors and to insure that debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged. Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 298 (3d Cir. 2008) (citing 15 U.S.C. § 1692(e)). "The FDCPA imposes strict liability on debt collectors who violate its provisions." See Masciarelli v. Boudreau & Assocs., 529 F.Supp.2d 183, 186 (D.Mass.2007); Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643, 661 (S.D.N.Y.2006) ("`The FDCPA establishes a strict liability standard; a consumer need not show intentional violation of the Act by a debt collector to be entitled to damages.'").

The FDCPA provides that a violation occurs when the debt collector fails

to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in the initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

15 U.S.C.A. § 1692e(11). With regard to communication with third parties, the FDCPA provides:

Without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to

...