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Schlattmann v. Portfolio Recovery Associates, LLC

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

January 4, 2018

ROBERT SCHLATTMANN, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         Plaintiff Robert Schlattmann brings this case under the Fair Debt Collection Practices Act (“FDCPA”) against defendant Portfolio Recovery Associates, LLC (“PRA”), alleging that PRA called him over 70 times for a debt that Schlattmann did not owe. The parties have cross-moved for summary judgment.

         I. Factual Background

         The following facts are undisputed except where indicated. Plaintiff acquired a residential telephone number ending in -8996 in December 2014. Defendant PRA is a debt collector as defined by the FDCPA. Between December 1, 2014 and June 11, 2016, defendant PRA called the 8996 telephone number 73 times in an attempt to reach an individual identified as M.A. who owned a credit account ending in 9992. M.A. previously used the telephone number ending in 8996 which was acquired by plaintiff in December 2014.

         PRA has a log for the calls it made to phone number 9886 between December 2014 and June 11, 2016. The average frequency of PRA's phone calls to the 8996 number was four times per month. Between December 2014 and June 11, 2016, PRA called the 8996 number three times in a single day on one occasion --- at 10:26 a.m., 12:17 p.m., and 5:17 pm. CST. The earliest time PRA called the 9886 number was at 8:03 a.m. CST and the latest call was at 8:35 p.m. CST.

         Plaintiff submitted an affidavit from nonparty M.A., who was the account holder for the credit account ending in 9992 and the individual PRA intended to reach when PRA called number 8996. M.A. states that PRA began calling him at various phone numbers (including the 8996 number) beginning in 2008. M.A. avers that he asked PRA to stop calling him and that he changed his phone number and filed for bankruptcy in response to PRA's efforts to collect on the debt. PRA's business records do not reflect that M.A. ever asked PRA to stop calling.

         PRA's call logs to the 8996 number show that the phone calls terminated in various ways. Most calls resulted in “No Contact” due to “No answer” or “Answering Machine/Voice Mail” for which “No Message” was left. For six calls, an “unknown party” answered the call. PRA states that, according to its procedures, if its agent had learned that the accountholder M.A. had not been reachable at the 8996 phone number, a result code of “Wrong Number” would have been indicated on the log. None of the calls to 8996 received a “Wrong Number” code result. Two calls had the result code of “Cust hung up in OUT Q, ” meaning that the call connected but the party hung up before an agent of PRA could speak with him or her. Three calls had the result code of “Left Message Voice.” And one call had the result code “Did not ID.” “Left Message Voice” is presumably different from the codes reflecting that a message was left on voicemail for calls that were not answered by person. But defendant does not explain what “Left Message Voice” or “Did not ID” codes mean.

         PRA received phone calls from the 8996 phone number on February 12, February 17, May 2, and June 14, 2016. PRA has recordings for each of those calls. The caller said nothing to PRA during the February 12, February 17, and May 2 calls. During the June 14 call, however, the caller identified himself as plaintiff Schlattmann and provided the 8996 phone number. PRA apologized, stated it had a wrong number, and advised plaintiff that it would remove the number. PRA states that was the first time it learned that the accountholder M.A. could not be reached at the 8996 phone number. Plaintiff, however, states that he told defendant multiple times between December 2014 and June 2016 that it had the wrong number and not to call again.

         Plaintiff filed this lawsuit on June 16, 2016, claiming that defendant had violated the FDCPA.

         II. Legal Standard

         Pursuant to Rule 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that “there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

         In ruling on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The Court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). With these principles in mind, the Court turns to the discussion

         III. ...


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