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Lopez v. Mid-America Accounts Control Bureau Incorporated

United States District Court, W.D. Missouri, Southwestern Division

December 8, 2014

NIDIA LOPEZ, Plaintiff,
v.
MID-AMERICA ACCOUNTS CONTROL BUREAU INCORPORATED d/b/a Mid-America Collections, Inc., Defendant.

ORDER

DOUGLAS HARPOOL, District Judge.

Before the Court is Plaintiff's Motion for Summary Judgment (Doc. No. 25) and Defendant's Objection to Plaintiff's Motion for Summary Judgment and Cross Motion for Summary Judgment. (Doc. No. 29). The Court has previously denied Plaintiff's Motion to Strike the Cross-Motion, and the parties have now fully briefed the pending motions. As such, the Motions are ripe for ruling.

BACKGROUND

Plaintiff's Complaint alleges a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq, (FDCPA). Plaintiff alleges Defendant violated the FDCPA when Defendant's representative left a voicemail message on Plaintiff's phone. Plaintiff's sole claim in this matter is that Defendant failed to state, in a May 10, 2013 voicemail, that the call was being placed by a debt collector in an attempt to collect an alleged debt.[1] The facts are undisputed.

Defendant is a debt collector and in an attempt to collect a debt from Plaintiff placed collection calls to her. On May 8, 2013, Plaintiff spoke with Defendant's representative, Amy Thomas, regarding Defendant's attempt to collect a debt. This phone conversation was recorded. During the phone conversation, Thomas informed plaintiff that the phone call was an attempt to collect a debt and that all information would be used for that purpose. In addition, Thomas requested permission from Plaintiff to leave her a voicemail message, and Plaintiff gave Thomas permission to do so. Additionally, Plaintiff informed Thomas she would call her back on May 9, 2013, to make arrangements to pay the debt. Plaintiff did not call Thomas on May 9, 2013.

On May 10, 2013, Thomas, consistent with the permission extended by Plaintiff during the May 8, 2013 telephone call, left Plaintiff the following voicemail message: "This is Amy Thomas with Mid-American Collections. I need you to give me a call back at 417-627-7990."

STANDARD OF REVIEW

Summary judgment is proper if, viewing the record in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp., v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party is entitled to summary judgment as a matter of law if they can establish there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Court must view the evidence in the light most favorable to the nonmoving party. Woodsmith Publ'g Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir. 1990). Once the moving party has established a properly supported motion for summary judgment, the non-moving party cannot rest on allegations or denials but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.

DISCUSSION

"The FDCPA is designed to protect consumers from abusive debt collection practices and to protect ethical debt collectors from competitive disadvantage." Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1054 (8th Cir. 2002); citing, 15 U.S.C. § 1692(e). The FDCPA prohibits the use of any "false, deceptive, or misleading representation or means" in connection with debt collection. Id. "A successful plaintiff may recover actual damages, statutory damages up to $1, 000, attorney fees, and costs." Id.

Plaintiff alleges Defendant specifically violated 15 U.S.C. § 1692e (10) and (11) which state the following conduct is a violation of this section:

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that 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.

In evaluating whether the debt collector's communication is "false, misleading, or deceptive in violation of §1692(e)" the communication is viewed "through the eyes of an unsophisticated consumer." Id. This perspective protects consumers of below average sophistication or intelligence. Id. ...


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