United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.
Debra Klein alleges that defendant debt collector Stellar
Recovery, Inc., violated the Fair Debt Collection Protection
Act (FDCPA) by asking her for contact information after being
informed that she was represented by counsel. The parties
have filed cross-motions for summary judgment. All matters are
pending before the undersigned with the consent of the
parties, pursuant to 28 U.S.C. § 636(c).
parties' dispute centers on a single telephone call, a
recording of which has been provided to the Court. On May 18,
2016, plaintiff called defendant to inquire about a debt in
the amount of $176 that appeared on her credit report. Before
plaintiff was connected with a representative, an automated
voice prompted her to enter her phone number so that her
records could be accessed. There was also an automated
warning that defendant was a debt collector, the
communication was an attempt to collect a debt, and all
information would be used for that purpose. After a short
wait, plaintiff was connected to representative Sara Cook.
Plaintiff explained that she had questions regarding the
entry on her credit report. At Ms. Cook's request,
plaintiff supplied the amount of the debt. Ms. Cook then
recited an address in Florida and asked if it was current, to
which plaintiff replied that the address was
“old.” At that point, Ms. Cook advised plaintiff
that any information she provided would be used for the
purpose of collecting a debt. Next, in response to a series
of questions from plaintiff, Ms. Cook stated that the debt
was for a Comcast account that became delinquent in July
2009, that no interest was being charged on the account, and
that the file showed that defendant sent a letter to
plaintiff at the old address in February 2015. Ms. Cook also
supplied defendant's file number for the debt and
Comcast's original account number.
acquired the details of the debt, plaintiff next asked Ms.
Cook to update her account to reflect that she had hired an
attorney to handle her debts. Ms. Cook asked for the name,
address, and phone number of the attorney, which plaintiff
provided. Ms. Cook then asked whether she could “update
your mailing address in our system.” Plaintiff assented
and provided her current address. When asked whether there
was an email address to put on file, plaintiff provided that
as well. Ms. Cook then confirmed that plaintiff knew
defendant's mailing address. Ms. Cook asked if plaintiff
knew when her attorney would be in touch and plaintiff
answered, “Not at this time.” Ms. Cook stated
that she would update plaintiff's information and asked
if she could assist plaintiff with anything else. Plaintiff
declined. Ms. Cook then stated that she had “a couple
of numbers listed here on your file” and recited one.
Plaintiff stated that the number was “no longer
good.” Ms. Cook then said, “And then the number
you're calling in from is listed here. Is this a good
number to call you on using our automated dialing system if
we need to?” Plaintiff stated, “No.” Ms.
Cook repeated that she would update plaintiff's
information in defendant's system and the phone call was
concluded. Defendant made no further attempt to contact
plaintiff. Rachel Frady Affidavit at ¶ 8 [Doc. # 18-1].
Defendant asserts, and plaintiff does not contest, that the
purpose of asking for plaintiff's current contact
information was to ensure that the proper information was
included in plaintiff's “consumer file with the
credit bureaus and to advise Comcast of the updated
information for its customer.” [Doc. #19 at ¶ 6];
Frady Affidavit at ¶ 7.
judgment is appropriate where “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). Under
Rule 56, a party moving for summary judgment bears the burden
of demonstrating that no genuine issue exists as to any
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party, ” and a fact is
material if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
the moving party discharges this burden, the non-moving 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.”
Anderson, 477 U.S. at 247. The non-moving party may
not rest upon mere allegations or denials in the pleadings.
Id. at 256. “Factual disputes that are
irrelevant or unnecessary” will not preclude summary
judgment. Id. at 248.
Court must construe all facts and evidence in the light most
favorable to the non-movant, must refrain from making
credibility determinations and weighing the evidence, and
must draw all legitimate inferences in favor of the
non-movant. Id. at 255. “Where parties file
cross-motions for summary judgment, each summary judgment
motion must be evaluated independently to determine whether a
genuine issue of material fact exists and whether the movant
is entitled to judgment as a matter of law.”
Progressive Cas. Ins. Co. v. Morton, 140 F.Supp.3d
856, 860 (E.D. Mo. 2015) (citations omitted).
purpose of the FDCPA is to “eliminate abusive debt
collection practices by debt collectors.” Richmond
v. Higgins, 435 F.3d 825, 828 (8th Cir. 2006)
(quoting 15 U.S.C. § 1692(a) and §
1692k(a)); see also Quinn v. Ocwen Fed. Bank FSB,
470 F.3d 1240, 1246 (8th Cir. 2006) (“The FDCPA is
designed to protect consumers from abusive debt collection
practices and to protect ethical debt collectors from
competitive disadvantage.”) (citations omitted). The
FDCPA provides for strict liability and is to be construed
liberally to protect consumers. Istre v. Miramed Revenue
Grp., LLC, No. 4:14 CV 1380 DDN, 2014 WL 4988201, at *2
(E.D. Mo. Oct. 7, 2014) (citation omitted).
prevail on her claim that defendant violated the FDCPA,
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 Prot. Ass'n, L.P., No.
4:12CV00289AGF, 2013 WL 1282348, at *4 (E.D. Mo. Mar. 27,
2013) (citing Pace v. Portfolio Recovery Assocs.,
LLC, 872 F.Supp.2d 861, 864 (W.D. Mo. 2012)). A debt
collector who violates the FDCPA is liable for any actual
damages sustained by the plaintiff in addition to statutory
damages of up to $1, 000 and attorney's fees.
Id.;15 U.S.C. § 1692k(a).
claim arises under 15 U.S.C. § 1692c(a), which provides
in relevant part that “a debt collector may not
communicate with a consumer in connection with the
collection of any debt . . . if the debt collector knows
the consumer is represented by an attorney with respect to
such debt . . .” § 1692c(a)(2) (emphasis added).
Plaintiff asserts that defendant violated this provision by
asking for her mailing address, email address, and telephone
number after learning she had an attorney. Defendant argues
that it is not liable under the FDCPA because its request for
plaintiff's contact information was not a
“communication in connection with the collection”
of the debt.
has not addressed defendant's argument that the
communications here were not an attempt to collect a debt.
Instead, she makes the categorical assertion that,
“once notified that [a debtor] has legal
representation, defendants may only ask for the
attorney's contact information before ending the
call.” [Doc. # 14 at p. 4, citing Hanks v.
Valarity, LLC, No. 4:14-CV-01433-JAR, 2015 WL 1886960,
at * 3 (E.D. Mo. Apr. 24, 2015)]. Hanks was a
decision addressing a Rule 12(b)(6) motion in which the court
accepted as true the allegation that the disputed
communication was made in connection with the collection of a
debt. Two other cases relied on by plaintiff also involved
Rule 12(b)(6) motions which deemed the allegation of debt
collection activity to be true. See Curtis v. Caine &
Weiner Co., Inc., No. 4:15CV1721 CDP, 2016 WL 520987, at
*2 (E.D. Mo. Feb. 10, 2016); Istre, 2014 WL 4988201.
Plaintiff also cites Robin v. Miller & Steeno,
P.C., No. 4:13CV2456 SNLJ, 2014 WL 3734318, at * 2 (E.D.
Mo. July 29, 2014), a case decided at the ...