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Pierson v. Franklin Collection Service, Inc.

United States District Court, E.D. Tennessee

August 14, 2013

JUSTIN PIERSON, Plaintiff,
v.
FRANKLIN COLLECTION SERVICE, INC., Defendant

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[Copyrighted Material Omitted]

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For Justin Pierson, Plaintiff: Amy L Bennecoff, Kimmel & Silverman, PA, Ambler, PA.

For Franklin Collection Service, Inc., Defendant: John M Lawhorn, LEAD ATTORNEY, Frantz, McConnell & Seymour, LLP, Knoxville, TN.

OPINION

Leon Jordan, United States District Judge.

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MEMORANDUM OPINION

This civil action is before the court for consideration of " Defendant Franklin Collection Service, Inc.'s Motion for Summary Judgment as to All Claims" [doc. 12]. Plaintiff has filed a response [doc. 25], and defendant has submitted a reply [doc. 19] and a supplemental reply [doc. 26]. [1] Oral argument is unnecessary, and the motion is ripe for the court's determination.

Plaintiff has brought suit for alleged violations of the Fair Debt Collection Practices Act (" FDCPA" ),15 U.S.C.§ 1692, et seq. For the reasons that follow, defendant's motion will be granted, and this case will be dismissed.

I.

Background

Plaintiff incurred a debt with AT& T for a cell phone in the amount of $685.37. When plaintiff did not pay the amount due

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on the account, AT& T turned the account over to defendant for collection. To pursue collection of the debt, defendant sent a letter to plaintiff dated May 5, 2011. That letter in relevant part states:

IF YOU ARE NOT PAYING THIS ACCOUNT IN FULL, PLEASE CONTACT YOUR ATTORNEY REGARDING OUR POTENTIAL REMEDIES, AND YOUR DEFENSES, IF ANY OR CALL (888)215-8961.
****IT WILL BE PURSUED TO A CONCLUSION****
UNLESS YOU NOTIFY U.S. WITHIN THIRTY (30) DAYS AFTER RECEIVING THIS NOTICE THAT YOU DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF, THIS OFFICE WILL ASSUME THIS DEBT IS VALID. IF YOU NOTIFY THIS OFFICE IN WRITING WITHIN THIRTY (30) DAYS FROM RECEIVING THIS NOTICE THAT THE DEBT, OR ANY PART THEREOF, IS DISPUTED THIS OFFICE WILL OBTAIN VERIFICATION OF THE DEBT OR OBTAIN A COPY OF A JUDGMENT AND MAIL YOU A COPY OF SUCH JUDGMENT OR VERIFICATION. IF YOU REQUEST THIS OFFICE IN WRITING WITHIN THIRTY (30) DAYS AFTER RECEIVING THIS NOTICE, THIS OFFICE WILL PROVIDE YOU WITH THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR IF DIFFERENT FROM THE CURRENT CREDITOR.

Plaintiff did not submit a dispute in writing to defendant.

Defendant sent a second letter to plaintiff dated June 7, 2011, which states in relevant part:

BEWARE, OUR CLIENT, PENDING NOTIFICATION, MAY AUTHORIZE A LAW FIRM TO FILE A CIVIL LAWSUIT AGAINST YOU.
ALSO, BE ADVISED TO AVOID THE POSSIBILITY OF INCURRING COURT COST, IF ALLOWED, THIS DEBT MUST BE PAID IN FULL.
THE AMOUNT OF YOUR DEBT, CLIENTS, AND CIVIL LAWS IN YOUR JURISDICTION MAY ALLOW SUIT TO BE FILED ON YOUR CASE. CALL (888) 215-8961 IF YOU WANT TO KNOW IF YOU ARE GOING TO BE SUED.
***CAUTION***
INCLUDE YOUR FCSE CASE NUMBER AND MAIL THIS NOTICE WITH
PAYMENT IN FULL
*FOR PROPER CREDIT*
ANY ATTORNEY RETAINED BY THIS FIRM WILL MEET THE REQUIRED QUALIFICATIONS TO PURSUE ALL MEANS NECESSARY TO RESOLVE THIS DEBT.
**THIS COULD BE YOUR FINAL WRITTEN NOTICE FROM US**
*THIS BALANCE MAY INCLUDE OTHER CREDITORS NOT LISTED*

On July 8, 2011, defendant received a cease and desist letter from plaintiff's counsel dated July 1, 2011. Plaintiff filed this lawsuit on July 6, 2011, and defendant ceased all collection efforts, including not recommending that AT& T file suit to collect plaintiff's debt.

II.

Standard of Review

Defendant's motion is brought pursuant to Federal Rule of Civil Procedure 56, which governs summary judgment. Rule 56(a) sets forth the standard for governing summary judgment and provides in pertinent part: " The court shall grant summary

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judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The procedure set out in Rule 56(c) requires that " [a] party asserting that a fact cannot be or is genuinely disputed must support the assertion." This can be done by citation to materials in the record, which include depositions, documents, affidavits, stipulations, and electronically stored information. Fed.R.Civ.P. 56(c)(1)(A). Rule 56(c)(1)(B) allows a party to " show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."

After the moving party has carried its initial burden of showing that there are no genuine issues of material fact in dispute, the burden shifts to the non-moving party to present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " The 'mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).

In order to defeat the motion for summary judgment, the non-moving party must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor. Id. at 255. The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251-52.

III.

Analysis

" Congress enacted the FDCPA in order 'to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.'" Fed. Home Loan v. Javitch, Block & Rathbone, LLP, 825 F.Supp.2d 913, 919 (N.D. Ohio 2011)(quoting 15 U.S.C. § 1692(e)). The Sixth Circuit has stated that any alleged violation of the FDCPA must be viewed " through the lens of the 'least sophisticated consumer.'" Gionis v. Javitch, Block & Rathbone, LLP, 238 F. App'x 24, 28 (6th Cir. 2007) (citing Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1029 (6th Cir. 1992)). The standard is an objective one. Id.; see also Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir. 2008). " The least sophisticated debtor standard is lower than simply examining whether particular language would deceive or mislead a reasonable debtor." Fed. Home Loan, 503 F.3d at 509 (quoting Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999)). " [A]lthough this standard protects naive consumers, it also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care." Id. at 509-10 (citing Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3rd Cir. 2000)) (internal quotation marks omitted). " The least sophisticated consumer 'can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care.'" Michael v. Javitch, Block & Rathbone, LLP, 825 F.Supp.2d 913, 919 (N.D. Ohio 2011)

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(quoting Clomon v. Jackson, 988 F.2d 1314, 1320 ...


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