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Sledge v. Law Offices of Buffaloe & Associates, Plc

United States District Court, W.D. Tennessee, Western Division

May 26, 2015

ALONZO B. SLEDGE, Plaintiff,
v.
LAW OFFICES OF BUFFALOE & ASSOCIATES, PLC, Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

S. THOMAS ANDERSON, District Judge.

Before the Court is the Motion for Summary Judgment of Defendant Law Offices of Buffaloe & Associates, PLC ("Buffaloe"), filed March 11, 2015. (ECF No. 33). Plaintiff Alonzo Sledge filed a Response in Opposition to the Motion on April 8, 2015 (ECF No. 38), to which Buffaloe filed its Reply on April 22, 2015. (ECF No. 39). For the reasons stated below, Buffaloe's Motion for Summary Judgment is GRANTED.

BACKGROUND

As an initial matter, Sledge failed to respond to Buffaloe's statement of undisputed facts. Local Rule 56.1 required Sledge to respond to each fact set forth by Buffaloe "by either: (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed." W.D. Tenn. Civ. R. 56.1(b). A party's "failure to respond to a moving party's statement of material facts... within the time periods provided by these rules shall indicate that the asserted facts are not disputed for purposes of summary judgment." W.D. Tenn. Civ. R. 56.1(d). Even after Buffaloe pointed out in its Reply that Sledge failed to respond to the statement of material facts, Sledge did not request leave to file a late response. See Def.'s Reply 2-3, ECF No. 39. Thus, the Court treats each of Buffaloe's facts as undisputed for purposes of summary judgment.

Sledge alleges that Buffaloe violated the Fair Debt Collection Practices Act ("FDCPA") in connection with the collection of a $409.23 debt assigned to Buffaloe for collection on October 26, 2012. (Def.'s Statement of Undisputed Facts ¶ 5, ECF No. 33-2). In his Complaint, Sledge originally asserted FDCPA violations in connection with a separate debt assigned to Buffaloe for collection on December 21, 2009. (Compl. ¶ 11). Sledge abandoned his claims based on the 2009 debt in his Response to Buffaloe's Motion for Summary Judgment.[1] (Pl.'s Response in Opp'n 14, ECF No. 38-1). Therefore, the only claims before the Court are those arising from facts related to the $409.23 debt, which Buffaloe attempted to collect in late 2012 and early 2013.

After LVNV Funds, LLC assigned the debt to Buffaloe for collection, Buffaloe initiated collection by sending Sledge a 30-day demand letter on November 2, 2012. (Def.'s Facts ¶ 6-7; Demand Letter, Ex. D to Def.'s Mem. in Supp. Mot. Summ. J., ECF No. 33-1, PageID 233). The letter contained the amount of the debt, and Sledge does not claim that this letter constituted a violation of the FDCPA. According to an account record submitted by Buffaloe, it first called Sledge at his home phone number on November 20, 2012. By the Court's count, from that date until March 27, 2013, various Buffaloe representatives called Sledge's home phone number 32 times.[2] ( See Paperless File, Ex. C to Def.'s Mot. Summ. J., ECF No. 33-1, PageID 222-31).

Only four of these calls resulted in a Buffaloe representative having a conversation with someone who answered the telephone. (Def.'s Facts ¶ 18; Dep. of Alonzo Sledge 46:1-3, ECF No. 33-1, PageID 284). During a February 27, 2013 phone call, Buffaloe was told to "lose the number, " but the individual answering Sledge's phone hung up "before Buffaloe could verify the name and telephone number of the debtor to take the number off Buffaloe's system." (Def.'s Facts ¶ 9). During a March 6, 2013 phone call, Sledge told Buffaloe that he had previously informed Buffaloe that he did not owe them any money and that Buffaloe should stop calling him. ( Id. ¶ 10). Buffaloe called Sledge seven more times before receiving a cease-and-desist letter on March 29, 2013, from Sledge's counsel. ( Id. ¶ 13). One of those calls resulted in a voice mail left on Sledge's phone on March 20, 2013. ( See Paperless File, PageID 228-29). After receiving the cease-and-desist letter, Buffaloe stopped all communication with Sledge. (Def.'s Facts ¶ 14).

Before receiving the cease-and-desist letter, Buffaloe also sent Sledge a "Special Offer" letter on February 8, 2013. (Def.'s Facts ¶ 14). The letter makes a "special offer... to resolve [Sledge's] account at a tremendous savings." (Special Offer, ECF No. 33-1, PageID 235). In the subject line, below Sledge's name, the letter reads "Date of Judgment:" with no date after the colon, followed by Buffaloe's file number for Sledge. The letter, on Buffaloe's letterhead, states the following:

Sir/Madame:
SPECIAL OFFER. ACT NOW TO RECEIVE THE BEST OFFFER POSSIBLE!!
As you are aware, this office has been retained to collect the above-referenced claim against you. Our client is currently offering a Tax Season settlement offer on your account. Resurgent Capital Services, LP is making this special offer for you to resolve your account at a tremendous savings.
Your account can be settled for a lump sum payment of 50% of the current balance if paid before March 31st, 2013 at 3:00 p.m.
YOU MUST CONTACT OUR OFFICE TO RECEIVE A QUOTED SETTLEMENT AMOUNT.
Act now to resolve this matter and receive the best discount. If further collection efforts continue, you may run the risk of ...

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