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Perry v. Trident Asset Management, LLC

United States District Court, E.D. Missouri, Eastern Division

February 2, 2015

KATINA M. PERRY, Plaintiff,
v.
TRIDENT ASSET MANAGEMENT, L.L.C., Defendant.

MEMORANDUM AND ORDER

SHIRLEY PADMORE MENSAH, Magistrate Judge.

This case is before the Court on the Partial Motion for Summary Judgment filed by Plaintiff Katina M. Perry ("Plaintiff") (Doc. 15) and the Motion for Summary Judgment filed by Defendant Trident Asset Management, L.L.C. ("Defendant") (Doc. 20). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 7). For the reasons stated below, Plaintiff's motion will be denied, and Defendant's motion will be granted.

I. FACTUAL BACKGROUND[1]

In May 2008, Plaintiff wrote a personal check to a casino, and it was dishonored. In 2011, Defendant (a debt collector) began reporting Plaintiff's 2008 debt to one or more credit agencies. However, Defendant did not place any telephone calls or send any direct communications to Ms. Perry concerning the debt. In September 2013, Plaintiff reviewed her credit report and noticed for the first time that Defendant had made a negative entry on her credit report regarding a debt to a casino that had been opened in May 2008 and last reported on August 23, 2013. On October 1, 2013, Plaintiff called Defendant and told Defendant that she had noticed the debt on her credit report. Defendant told her the amount of the debt, $225, and told her that that number included a $25 fee. They then had the following exchange:

PLAINTIFF: Is there a deadline when I have to have this paid by?
DEFENDANT: No ma'am, you can just begin making monthly payments to it. You can do that at our website or by send[ing] us a money order.

Plaintiff asked if Defendant had called her or sent her anything about this, and Defendant said it had not. Plaintiff requested something in writing and provided her current mailing address, and Defendant stated that it would send a statement in the mail. During the call, Defendant did not disclose to Plaintiff that she retained the right to dispute the debt.

On October 2, 2013, Defendant mailed a letter to Plaintiff containing the disclosures articulated in 15 U.S.C. § 1692g (including her right to dispute the debt within 30 days of receiving the letter). Plaintiff never received the letter.

Plaintiff filed suit in state court, alleging that Defendant's conduct violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Defendant removed the action to this Court.

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

The standards applicable to summary judgment motions are well settled, and they do not change when both parties have moved for summary judgment. Tower Rock Stone Co. v. Quarry & Allied Workers Local No. 830, 918 F.Supp.2d 902, 905 (E.D. Mo. 2013) (citing Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983)). 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.Civ.P. 56(a); see also Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The movant "bears the initial responsibility of informing the district court of the basis for its motion" and must identify "those portions of [the record]... which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out "specific facts showing that there is a genuine issue for trial." Id. at 324 (quotation marks omitted). "On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'" Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks omitted)).

Where parties file cross-motions for summary judgment, each summary judgment motion must be evaluated independently to determine whether a genuine dispute of material fact exists and whether the movant is entitled to judgment as a matter of law. Husinga v. Federal-Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D. Iowa 2007). "[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits." Wermager, 716 F.2d at 1214.

III. DISCUSSION

"The purpose of the FDCPA is to eliminate abusive debt collection practices by debt collectors, '... and debt collectors are liable for failure to comply with any provision' of the Act." Richmond v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006) (quoting 15 U.S.C. §§ 1692(a) and 1692k(a)). In order to establish an FDCPA violation, "Plaintiff must prove that she is a consumer; Defendant is a debt collector; there was an attempt to collect a debt; and Defendant violated, by act or omission, a provision of the FDCPA." Campbell v. Credit Protection Ass'n, No. 4:12CV00289AGF, 2013 WL 1282348, at *4 (E.D. Mo. Mar. 27, 2013) (citing Pace v. Portfolio Recovery Assocs., 872 F.Supp.2d 861, 864 (W.D. Mo. 2012)). It is undisputed that Plaintiff is a consumer, that Defendant is a debt collector, and that there was an attempt to collect a debt. The only issue is whether Defendant violated a provision of the FDCPA.

Plaintiff argues that she is entitled to summary judgment on the question of liability because the undisputed facts show that Defendant violated two FDCPA provisions: § 1692g(a) and § 1692g(b). Defendant argues that it is entitled to summary judgment because ...


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