Kimmel v. Cavalry Portfolio Serv., CIVIL ACTION NO. 10-680

DR. MURRAY H. KIMMEL, Plaintiff,

v.CAVALRY PORTFOLIO SERVICES, LLC Defendant.

CAVALRY PORTFOLIO SERVICES, LLC Counterclaim Plaintiff,

v.DR. MURRAY H. KIMMEL Counterclaim Defendant.

CIVIL ACTION NO. 10-680

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: May 25, 2011

MEMORANDUM

BUCKWALTER, S. J.

Currently pending before the Court are: (1) Defendant Cavalry Portfolio Services, LLC's ("Defendant") Motion for Summary Judgment as to All Claims by Plaintiff Dr. Murray H. Kimmel ("Plaintiff") and (2) Defendant's Motion for Summary Judgment on All Counterclaims against Plaintiff. For the following reasons, Defendant's Motion for Summary Judgment as to Plaintiff's Claims is granted and Motion for Summary Judgment as to All Counterclaims is partially granted and partially denied as moot.

I. FACTUAL AND PROCEDURAL HISTORY

This matter stems from Plaintiff's action against Defendant, which alleges violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA"). (Compl. ¶ 4.)According to the Complaint, Defendant sent to Plaintiff correspondence dated December 8, 2009, in which Defendant offered Plaintiff an opportunity to settle an alleged Bank of America credit card debt of $12,479.32. (Id. ¶ 15.) Plaintiff claims that Defendant violated the FDCPA in attempting to collect on this debt by: (1) using false, deceptive, or misleading representations or means in connection with the collection of a debt, in violation of 15 U.S.C. §1692e; (2) using false representation or deceptive means to collect or attempt to collect a debt, in violation of 15 U.S.C. § 1692e(10); (3) acting in an otherwise unfair and unconscionable manner to collect or attempt to collect a debt, in violation of 15 U.S.C. § 1692f; and (4) failing to provide, within five days after its initial written communication with Plaintiff, written notice containing information on Plaintiff's right to dispute the debt, request validation, or request the name of the original creditor, in violation of 15 U.S.C. § 1692g(a). (Compl. ¶ 27.)

Defendant filed counterclaims for breach of contract and unjust enrichment based on Plaintiff's failure to pay $12,019.75 owed on the credit card account cited in the Complaint ("Account 0174"), as well as a separate debt of $85,809.89 from another credit card account that was not referenced in the Complaint ("Account 09540"). (Def.'s Am. Countercl. ¶¶ 7-57.) Defendant contends that Plaintiff opened these accounts with Bank of America, that the accounts were purchased by Cavalry SPV I, LLC on September 29, 2009, and that Defendant acquired the rights to the accounts from Cavalry SPV I, LLC on October 2, 2009. (Def.'s Mot. Summ J. Countercl. 2-4.) Plaintiff filed a Motion to Dismiss Defendant's Counterclaim on April 20, 2010, which this Court denied on September 29, 2010. See Kimmel v. Cavalry, 747 F. Supp. 2d 427 (E.D. Pa. 2010). Defendant filed two separate Motions for Summary Judgment on September 13, 2010, which this Court denied without prejudice after the parties stipulated to anextension of the discovery deadline on October 5, 2010. On February 7, 2011, Defendant again filed Motions for Summary Judgment on Plaintiff's claims and its own counterclaims. Plaintiff filed Responses in Opposition to Defendant's Motion for Summary Judgment on Plaintiff's Claims on February 28, 2011 and to Defendant's Motion for Summary Judgment on All Counterclaims on March 1, 2011. Defendant filed Reply Briefs on April 13, 2011,¹ and Plaintiff filed Sur Replies to both Motions on April 29, 2011.

II. STANDARD OF REVIEW

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CUV. P. 56(a). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable factfinder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidencepresented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. Summary judgment may be granted when "the evidence is merely colorable . . . or is not significantly probative." Id. at 249-50 (citations omitted).

III. DISCUSSION

Defendant has filed two separate Motions for Summary Judgment. The first seeks judgment in its favor as to all of Plaintiff's FDCPA claims; the second seeks judgment on its counterclaims for breach of contract and unjust enrichment. The Court considers each Motion separately.

A. Defendant's Motion for Summary Judgment on Plaintiff's Claims

The FDCPA was enacted "'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) (internal quotations omitted)). Under the FDCPA,"debt" is defined as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment." 15 U.S.C. § 1692a(5).

Defendant initially moved for summary judgment by challenging the merits of each individual claim made by Plaintiff under the FDCPA. (See Def.'s Mot. Summ. J. Pl.'s Claims 614.) In its Reply Brief, however, Defendant raises the separate argument that Plaintiff cannot pursue those individual claims because he has not established that the money allegedly owed in this case qualifies as a "debt" for purposes of the FDCPA. (Def.'s Reply Pl.'s Resp. Opp'n Mot. Summ. J. Pl.'s Claims ("Def.'s Reply Pl.'s Claims") 2-5.) While a Reply Brief is typically not the proper forum in which to raise new legal arguments,² the Court considers Defendant's argument because it concerns an essential element of Plaintiff's cause of action and would likely be raised again later in the litigation. Furthermore, Plaintiff was given an opportunity to respond to this argument by way of the Court's Amended Order of April 13, 2011.

According to Defendant, Plaintiff testified that he suffers from dementia and does not recall the nature of the debt at issue in this case, and has not engaged in any discovery to establish that it is a consumer debt. (Id. at 3.) Because there is no evidence that the debt derived from a transaction that was primarily for personal, family, or household purposes, Defendantargues that Plaintiff has failed to satisfy an essential element of his FDCPA claim. (Id. at 3-4.) In response, Plaintiff contends that the money he allegedly owes is a "debt" for purposes of the FDCPA because the credit card agreement for the account at issue restricts the use of the card to personal use only, and because Defendant attempted to collect the money from him personally. (Pl.'s Sur Reply Def.'s Mot. Summ. J. Pl.'s Claims 2.)

In support of this argument, Plaintiff cites to three cases. (Id. at 2-3.) First, in Slenk v. Transworld Sys., Inc., 236 F.3d 1072 (9th Cir. 2001), the Ninth Circuit held that in determining whether a loan is consumer or commercial in nature, courts should "'look to the substance of the transaction and the borrower's purpose in obtaining the loan, rather than the form alone.'" Id. at 1075 (quoting Riviere, et al. v. Banner Chevrolet, Inc., 184 F.3d 457, 462 (5th Cir. 1999)). The Court is unable to discern how the Slenk opinion helps Plaintiff's argument, however, since neither party in this case has introduced evidence concerning the substance of the transactions or Plaintiff's purpose in obtaining the credit card. If Plaintiff is suggesting that the restrictions contained in the credit card agreement are evidence of his purpose - rather than the lender's purpose - the Court is unpersuaded. The credit card agreement was introduced by Defendant in support of its counterclaim for breach of contract, and Plaintiff has consistently maintained the position that this document has not been properly authenticated. (See Pl.'s Resp. Opp'n Def. Mot. Summ J. Countercl. 5, 10, 11; Pl.'s Sur Reply Def.'s Mot. Summ. J. Countercl. 1.) As a result, when he argues that the debt must have been for personal purposes because...