Rush v. Portfolio Recovery Assocs. LLC

977 F.Supp.2d 414

Alma and Gregory RUSH, Plaintiffs,

v.PORTFOLIO RECOVERY ASSOCIATES LLC, Defendant.

Civil No. 12–2276(FLW)(DEA).

United States District Court, D. New Jersey.

Oct. 17, 2013.

Opinion Denying Reconsideration May 7, 2014.

Amy Lynn Bennecoff, Kimmel and Silverman P.C., Executive Quarters, Cherry Hill, NJ, for Plaintiffs.

Donald S. Maurice, Jr., Thomas R. Dominczyk, Maurice & Needleman, PC, Flemington, NJ, for Defendant.

OPINION

WOLFSON, United States District Judge:

This matter arises out of a Complaint filed by Plaintiffs Alma and Gregory Rush (collectively, “Plaintiffs” '), alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., as well as a state law claim for invasion of privacy. Defendant Portfolio Recovery Associates, LLC (“Defendant” or “Portfolio”) filed a motion for summary judgment to dismiss all counts of the Complaint. For the reasons that follow, Portfolio's motion is granted on Plaintiffs' claims under § 1692c(a)(1)-(2) & (c) and § 1695f, as well as the state law invasion of privacy claim; Portfolio's motion is denied with respect to Plaintiffs' claims under § 1692d & d(5).

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.

The following facts are undisputed and are drawn primarily from the parties' Local Rule 56.1 statements of undisputed material facts; additional and disputed facts will be set forth as appropriate.

Plaintiffs are residents of Phillipsburg, New Jersey, and Portfolio is a national debt collection agency with its headquarters located in Norfolk, Virginia. Compl., ¶¶ 6, 8. The claims in this case arise out of phone calls Portfolio placed to Plaintiffs' home in connection with a debt allegedly owed by Plaintiff Alma Rush. Def. Facts, ¶ 13. The dates and times of some of these calls are disputed, with Portfolio presenting a business record showing calls made only in the months of December 2011 and January 2012,¹see Def. Br., Decl. of Nyetta C. Jackson, Ex. A. (Portfolio call log), and Plaintiffs testifying in deposition that these calls continued through April 2012. Pl. Facts, ¶ 11. During the relevant time period covered by the Complaint, none of Portfolio's phone calls were answered by Plaintiffs; Plaintiff Alma Rush never spoke with anyone at Portfolio over the phone.² Def. Facts, ¶¶ 3, 18. Instead, Plaintiffs would allow the phone to ring up to five times until their voicemail system picked up. Id. at ¶ 8. Although no messagewas ever left on the voicemail, Portfolio's number and a portion of its business name was captured by Plaintiffs' caller ID system. Id. at ¶ 11.

In January 2012, Plaintiffs retained counsel, who sent a cease and desist letter to Portfolio on January 26, 2012, that was eventually logged into Portfolio's records on January 31, 2012 at 12:45 p.m. Id. at ¶¶ 27–29. In response, Portfolio sent a letter to Plaintiffs' counsel on February 1, 2012, acknowledging receipt of the cease and desist letter and stating that no further attempts would be made to collect on the account. Id. at ¶ 33. Plaintiffs, again through counsel, sent another cease and desist letter to Portfolio on May 9, 2012, demanding a second time that Portfolio cease communications with Plaintiffs. Def. Opp., Ex. E. The impetus for this second letter were calls allegedly made by Portfolio to Plaintiffs after the first cease and desist letter. See id.

On April 16, 2012, Plaintiffs filed their Complaint against Portfolio. In the Complaint, Plaintiffs allege that Portfolio violated several provisions of the FDCPA. Specifically, Plaintiffs allege: in Count One a violation of 15 U.S.C. § 1692c(a)(1) (inconvenient communications); in Count Two, a violation of § 1692c(a)(2) (communication after known representation by attorney); in Count Three, a violation of § 1692c(c) (communication after demand to cease); in Count Four, a violation of § 1692d (harassing conduct); in Count Five, a violation of § 1692d(5) (annoying telephone ringing); and in Count Six, a violation of § 1692f (unfair or unconscionable conduct). Plaintiffs also claim, in Count Seven, a violation of their state law right to privacy. Portfolio now moves for summary judgment on all counts of Plaintiffs' Complaint.

II. STANDARD OF REVIEW

Courts will enter summary judgment only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. See id. at 252, 106 S.Ct. 2505. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts “in the light most favorable to the [non-moving] party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion.” Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party then carries the burden to “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548. Moreover, the non-moving party may not rest upon the mere allegations or denials of its pleading. Id. at 324, 106 S.Ct. 2548;Maidenbaum v. Bally's Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J.1994). The non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. A mere “scintilla of evidence ... will be insufficient.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

III. DISCUSSIONA. FDCPA Claims Under § 1692c(a)(1)-(2) & (c)

Portfolio moves for summary judgment on Plaintiffs' claims under § 1692c(a)(1), (a)(2) and (c) on the basis that the undisputed facts show that Portfolio did not violate any of these sections of the FDCPA and, alternatively, that Portfolio's contact with Plaintiffs did not constitute “communications” under the FDCPA. I address Portfolio's alternative argument first, as my resolution of that issue limits my analysis of Plaintiffs' claims.

1. Whether unanswered phone calls are “communications” under the FDCPA

According to Portfolio, it is undisputed that the only conduct potentially violative of the FDCPA in this case is unanswered telephone calls placed to Plaintiffs at their home residence.³ Relying on the FDCPA's statutory definition of “communication,” as well as relevant case law, Portfolio asserts that none of these calls run afoul of § 1692c(a)(1)-(2) & (c) because they cannot properly be considered communications under the statute. Plaintiffs oppose Portfolio's argument, asserting that although the calls went unanswered, Plaintiffs' caller ID system captured Portfolio's identifying information, distinguishing these calls from ordinary unanswered phone calls.

The FDCPA defines a “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” Id.§ 1692a(2). Portfolio contends that unanswered phone calls, by their very nature, do not convey “information regarding a debt,” and likewise rejects the notion that basic identifying information on a caller ID device provides any such information. In support, Portfolio relies on several cases holding that unanswered phone calls and other forms of communication that do not supply “information regarding a debt” are not communications under the FDCPA. In response, Plaintiffs point to a decision by the District Court for the District of Connecticut, which found that eight unanswered phone calls to the plaintiff's home by the debt collector constituted communications because, although the calls went unanswered, the collector's number and information were displayed on the plaintiff's caller ID. See Cerrato v. Solomon & Solomon, 909 F.Supp.2d 139 (D.Conn.2012). Plaintiffs argue that Cerrato is directly on point with the facts in this case, and compels the conclusion that the 39–plus unanswered phone calls were communications because, like in Cerrato, Portfolio's identifying information appeared on Plaintiffs' caller ID.

The facts in Cerrato differ somewhat from those in the instant matter. ⁴ In that case, the debt collector had called the plaintiff 117 times about her debts before the plaintiff sent, and the debt collector received, a cease and desist letter. Id. at 145. It is unclear from the opinion whether the plaintiff answered any of these 117 phone calls or otherwise communicated with the debt collector prior to sending the cease and desist letter, although, inferentially, it appears that the plaintiff did speak with representatives from the debt collector during at least some of these calls. See id. at 141, 145. None of these 117 calls, however, were at issue in the plaintiff's case. Rather, the question was whether calls that were made by the debt collector after the cease and desist letter violated the FDCPA. Id. at 145. Following receipt of the letter, the debt collector attempted to call the plaintiff eight more times; each of these calls went unanswered, but the call, along with the debt collector's identifying information, was displayed on the plaintiff's caller ID. Id. at 145. The court found that (1) the plaintiff knew that the debt collector was calling her because, at that point, the plaintiff had full knowledge of the debt collector's identity, and (2) the debtor continued to call for the same reason that it had in the past—to communicate with the plaintiff about...