United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. Hamilton UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Partial Summary Judgment, filed July 20, 2016. (ECF No. 18).
The motion is fully briefed and ready for disposition.
Jeff Dodd, a resident of St. Charles County, Missouri,
allegedly owes a debt arising from an UMB Bank credit card
account. (Petition (hereinafter “Complaint” or
“Compl.”), ¶¶ 4, 5). Defendant Delta
Outsource Group (“Delta”) is a Missouri
corporation engaged in the collection of debts from consumers
using the mail and telephone. (Id., ¶¶ 6,
7). Delta thus is a “debt collector” as defined
by the Fair Debt Collections Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
(Id., ¶¶ 1, 7).
in September, 2015, Plaintiff's account with UMB Bank was
placed with Delta's office for collection. (Compl.,
¶ 9). On or about October 2, 2015, Delta called
Plaintiff at work and attempted a debt collection
communication. (Id., ¶ 11; Plaintiff's
Statement of Uncontroverted Material Facts
(“Plaintiff's Facts”), ¶ 1). According
to Plaintiff, Delta failed to disclose that it was a debt
collector attempting to collect a debt during the October 2,
2015, phone call. (Compl., ¶ 14; Plaintiff's Facts,
¶ 2). Plaintiff maintains Delta again failed to disclose
that it was a debt collector during its second debt
collection communication on October 7, 2015. (Compl., ¶
15; Plaintiff's Facts, ¶¶ 3, 4).
about October 16, 2015, Plaintiff filed his Complaint in the
Circuit Court of St. Charles County, Missouri. (ECF No.
Plaintiff's Complaint purports to be “an action for
statutory damages brought by an individual consumer for
violations of the Fair Debt Collections Practices Act, 15 USC
1692 et Seq. (“FDCPA”), which prohibits
debt collectors from engaging in abusive, deceptive, and
unfair practices.” (Id., ¶ 1).
Specifically, Plaintiff maintains Delta committed violations
of the FDCPA including, but not limited to, communicating
with a third person in connection with the collection of a
debt without the prior consent of the consumer, in violation
of 15 U.S.C. §§ 1692b(2), 1692c(b); failing to
disclose in a collection communication that the communication
is from a debt collector in an attempt to collect a debt, in
violation of 15 U.S.C. § 1692e(11); and contacting a
consumer at his place of employment after having reason to
know that the employer prohibits such communication, in
violation of 15 U.S.C. § 1692c(a)(3). (Id.,
stated above, Plaintiff filed the instant Motion for Partial
Summary Judgment on July 20, 2016, claiming he is entitled to
judgment as a matter of law with respect to his claim arising
out of the two telephone calls in which Delta failed to
disclose that it was a debt collector attempting to collect a
debt. (ECF No. 18).
Court may grant a motion for summary judgment if, “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 judgment as a matter
of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The substantive law
determines which facts are critical and which are irrelevant.
Only disputes over facts that might affect the outcome will
properly preclude summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment
is not proper if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Id.
moving party always bears the burden of informing the Court
of the basis of its motion. Celotex, 477 U.S. at
323. Once the moving party discharges this burden, the
nonmoving party must set forth specific facts demonstrating
that there is a dispute as to a genuine issue of material
fact, not the “mere existence of some alleged factual
dispute.” Fed.R.Civ.P. 56(e); Anderson, 477
U.S. at 247. The nonmoving party may not rest upon mere
allegations or denials of its pleadings. Anderson,
477 U.S. at 256.
passing on a motion for summary judgment, the Court must view
the facts in the light most favorable to the nonmoving party,
and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255. The Court's function
is not to weigh the evidence, but to determine whether there
is a genuine issue for trial. Id. at 249.
FDCPA was designed to protect consumers from the
‘abusive, deceptive and unfair debt collection
practices' of debt collectors.” Worch v.
Wolpoff & Abramson, L.L.P., 477 F.Supp.2d 1015, 1018
(E.D. Mo. 2007) (citing 15 U.S.C. § 1692 et
seq.). “In order to establish a violation of the
FDCPA, a plaintiff must demonstrate that 1) plaintiff has
been the object of collection activity arising from a
consumer debt; 2) the defendant attempting to collect the
debt qualifies as a debt collector under the Act; and 3) the
defendant has engaged in a prohibited act or has failed to
perform a requirement imposed by the FDCPA.”
O'Connor v. Credit Protection Ass'n
LP, 2013 WL 5340927, at *6 (E.D. Mo. Sep. 23, 2013)
(citations omitted); see also McHugh v.
Valarity, LLC, 2014 WL 6772469, at *2 (E.D. Mo. Dec. 1,
2014). In the instant case, only the third element is at
issue. Plaintiff avers Delta's conduct of failing to
disclose it was a debt collector attempting to collect a debt
during the two telephone calls it placed to Plaintiff
violated 15 U.S.C. § 1692e(11), which provides in
relevant part as follows:
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt. Without limiting the general
application of the foregoing, the following conduct is a
violation of this section:… 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 ...