United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
DAVID D. NOCE, Magistrate Judge.
This action is before the court on the motions of plaintiff Jason Istre and defendant Miramed Revenue Group, LLC (MRG) for summary judgment. (Docs. 22, 25.) The court heard oral argument on February 9, 2014.
On July 3, 2014, plaintiff Jason Istre commenced this action in the Circuit Court of Jefferson County, Missouri. Defendants removed this action to this court pursuant to 28 U.S.C. § 1441 for federal question jurisdiction. The Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., upon which plaintiff's claims are based, grants this court subject matter jurisdiction without regard to the amount in controversy. 15 U.S.C. § 1692k(d). Plaintiff alleges two claims for relief against defendant Miramed Revenue Group (MRG): (1) MRG, a debt collector, attempted to collect a debt from debtor plaintiff, after its agent knew plaintiff was represented by counsel, in violation of FDCPA § 1692c(a)(2); and (2) MRG's agent used harassing, oppressive, abusive, and unconscionable language in its attempt to collect the debt, in violation of FDCPA §§ 1692d and 1692f.
Plaintiff seeks partial summary judgment that MRG is liable on his § 1692c(2)(a) claim. MRG cross-moves for summary judgment on both of plaintiff's claims. Courts must grant summary judgment when the pleadings and evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1052 (8th Cir. 2011) (en banc). A fact is "material" if it could affect the ultimate disposition of the case, and a factual dispute is "genuine" if there is substantial evidence to support a reasonable jury verdict in favor of the nonmoving party. Rademacher v. HBE Corp., 645 F.3d 1005, 1010 (8th Cir. 2011). The court must view the evidence in the light most favorable to the nonmoving party and accord it the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378 (2007).
The material facts are without genuine dispute. Defendant MRG is a debt collector regulated by the FDCPA. Plaintiff is an individual consumer who incurred the debt at issue for medical services received. MRG sent plaintiff a collection letter in December 2013 identifying itself as a debt collector seeking to collect the debt at issue in this case. In June 2014, plaintiff hired a lawyer, C. Scott Brinkman, to represent him on this and other debts. Sometime after that, plaintiff hired Richard Voytas, Esq., his current counsel of record.
On whether or not defendant violated the Act, the undisputed material facts involve a recorded telephone conversation in which plaintiff and MRG's agent participated in June 2014. Plaintiff initiated the call to MRG from his lawyer's office, with counsel present. Both parties have, without objection, submitted audio recordings of this conversation. The court has listened to both recordings which indicate the following:
[The recording begins with the MRG agent asking for plaintiff's debt identification information and plaintiff providing it. Then the MRG agent states:
MRG: Let me just keep you informed that all calls may be recorded for quality... training purposes. This is an attempt to collect the debt and any information obtained will be used for that purpose. So, how can I help you today, sir?
Istre: I have about a - I'm getting letters from ya'll and I got about twenty collectors all coming after me. I'm realistically not going to be able to pay everyone what they want.
Istre: What happens if I just can't pay? Do ya'll garnish my wages?
MRG: No, sir. We do not do that. We don't garnish your wages. We just notate the information and inform my client that you're unable to pay. But if you're willing to take care of the bill, we can give you a settlement on the bill and have it closed out. We can offer you a discount, which you can afford to pay and that would close out the collection and remove your name from some of those notices.
Istre: I can't pay.
MRG: All right. You wouldn't be able to make small payments either?
Istre: No, sir.
MRG: All right. So you're unemployed?
Istre: Yes, sir.
MRG: You're unemployed?
Istre: Yes, sir.
MRG: All right. So, how long have you been unemployed, sir?
Istre: Uhhh, I hired a lawyer to advise me ...