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Benson v. Portfolio Recovery Associates, LLC

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

August 27, 2019




         This matter is before the Court on Defendant's Motion for Summary Judgment, [Doc. No. 28]. For the reasons set forth below, the motion is granted.


         Plaintiff Shannon Benson claims that efforts made by Defendant Portfolio Recovery Associates, LLC to collect debt allegedly owed by Benson violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Plaintiff alleges that Defendant, a debt collector, in connection with the collection of a debt engaged in conduct the natural consequence of which were to harass, oppress, or abuse Plaintiff, and caused a telephone to ring to engage Plaintiff in telephone conversation repeatedly or continuously with the intent to annoy, abuse or harass Plaintiff in violation of FDCPA §§ 1692d and 1692d(5).

         Defendant seeks summary judgment on Plaintiff's claim, arguing that its communications with Plaintiff did not violate the FDCPA. In support of its motion, Defendant claims that Plaintiff has not presented evidence to support her claim.[1]

         Summary Judgment Standard

         “Summary judgment is proper where the evidence, when viewed in a light most favorable to the non-moving party, indicates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id. “The basic inquiry is whether it is so one-sided that one party must prevail as a matter of law.” Diesel Machinery, Inc. v. B.R. Lee Industries, Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks and citation omitted). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (citation omitted). Once the moving party has met its burden, “[t]he nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Id. (internal quotation marks and citation omitted)

         To survive a motion for summary judgment, the “nonmoving party must ‘substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere speculation, conjecture, or fantasy.'” Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003) (quoting Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)). The nonmoving party may not merely point to unsupported self-serving allegations, but must substantiate allegations with sufficient probative evidence that would permit a finding in his or her favor. Wilson, 62 F.3d 237, 241 (8th Cir. 1995). “The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. 242 at 252; Davidson & Associates v. Jung, 422 F.3d 630, 638 (8th Cir. 2005). Summary Judgment will be granted when, viewing the evidence in the light most favorable to the nonmoving party and giving the nonmoving party the benefit of all reasonable inferences, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 801 (8th Cir. 2006). “Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d 516, 526-7(8th Cir. 2007). “Simply referencing the complaint, or alleging that a fact is otherwise, is insufficient to show there is a genuine issue for trial.” Kountze ex rel. Hitchcock Foundation v. Gaines, 2008 WL 2609197 at *3 (8th Cir. 2008).


         To prevail on a claim pursuant to the FDCPA, plaintiff must allege and prove that “(1) the plaintiff is a ‘consumer' within the meaning of the statute; (2) the defendant collecting the debt is a ‘debt collector' within the meaning of the statute; [and] (3) the defendant has violated by act or omission a provision of the FDCPA.” Glackin v. LTD Fin. Servs., L.P., No. 4:13-CV-00717 CEJ, 2013 WL 3984520, at *1 (E.D. Mo. Aug. 1, 2013). The first two elements are not in dispute.

         The FDCPA expressly prohibits many harassing, deceptive, and unfair debt collection practices, including the use of obscene language or threats of violence, impersonation of government officials, misrepresentation of a consumer's legal rights, and simulation of court process. In addition to such specific prohibitions, the FDCPA in general terms prohibits any harassing, unfair or deceptive collection practices. This allows courts, where appropriate, to proscribe other improper conduct which has not been specifically addressed. “[A]lthough the question of whether conduct harasses, oppresses, or abuses will [ordinarily] be a question for the jury, ... Congress has indicated its desire for the courts to structure the confines of § 1692d.” Gallagher v. Gurstel, Staloch & Chargo, P.A., 645 F.Supp.2d 795, 799 (D. Minn. 2009) (quoting Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 330 (6th Cir.2006) (internal quotation omitted)). “If a creditor's alleged acts do not have the natural consequence of harassing, oppressing, or abusing a debtor, courts will dismiss the claim.” Id.

         “To determine whether a debt collector's calls amount to harassment, annoyance or abuse, the volume of calls must be examined along with the pattern in which they were made and whether or not they were accompanied by oppressive conduct.” Moore v. CCB Credit Services, Inc., 4:11CV2132 RWS, 2013 WL 211048, at *3 (E.D. Mo. Jan. 18, 2013). “Making legitimate, persistent efforts to contact a debtor does not violate the FDCPA.” Id. at *4. Even “placing one or two unanswered calls a day in an unsuccessful effort to reach the debtor, if this effort is unaccompanied by any oppressive conduct (threatening messages), ” is not sufficient to show an FDCPA violation. Id. at *3.

         Undisputed Record and Discussion

         Defendant has, in accordance with the Court's Local Rules, submitted a Statement of Uncontroverted Material Facts. Although Plaintiff included a “Counter-Statement of Material Facts” in her memorandum, she failed to note the disputed paragraph number from Plaintiff's statement of facts and failed to support some of her statements with any specific references to admissible ...

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