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Anna Pawelczak, An Individual; On Behalf of Herself and All Others Similarly Situated v. Nations Recovery Center

June 14, 2012

ANNA PAWELCZAK, AN INDIVIDUAL; ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
NATIONS RECOVERY CENTER, INC., A GEORGIA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

This matter is before the Court on Plaintiff Anna Pawelczak's ("Pawelczak") and Defendant Nations Recovery Center, Inc.'s ("NRC") cross-motions for summary judgment under Federal Rule of Civil Procedure 56. For the following reasons, Pawelczak's motion for summary judgment as to liability is granted, and NRC's motion for summary judgment is denied.

BACKGROUND*fn1

Pawelczak filed this action against NRC for alleged violations of the Fair Debt Collection Practices Act ("FDCPA" or "the Act") 15 U.S.C. § 1692, et seq. Pawelczak alleges that NRC left several messages on her voice mail system, and that NRC failed to provide necessary disclosures in those messages under 15 U.S.C. §§ 1692d(6) and 1692e(11).

NRC's Phone Calls to Pawelczak Sometime prior to December 11, 2010, Pawelczak, a resident of Mount Prospect, Illinois, defaulted on a financial obligation owed to Applied Bank, a creditor. The obligation was for personal, family, or household purposes. NRC, a debt collector headquartered in Georgia that does business in Illinois, eventually obtained rights to collect on Pawelczak's debt.

NRC contacts its debtors in two ways: "live calls" placed by NRC employees, and automated calls placed through Dial Connect, a system that contacts debtors with pre-recorded messages ("recorded calls"). Between December 11, 2010 and March 29, 2011, NRC called and left Pawelczak 21 voice mail messages -- eight live calls originating from four different NRC employees, and thirteen recorded calls. Pawelczak heard none of the 21 messages in real time, and at no time did she answer any of the phone calls from NRC. In each of the live calls, an NRC employee left a message for Pawelczak requesting that she call that employee back at a phone number belonging to NRC. None of the eight live calls identified NRC as a debt collector or disclosed that the purpose of the phone call was to collect a debt. In two of the live calls, the NRC representatives mentioned Applied Bank but nothing regarding a debt owed. The NRC representatives also failed to disclose that they were calling on behalf of NRC in three of the eight live messages, but did do so in the remaining five messages.*fn2

Each of the thirteen recorded NRC calls left the following identical voice mail message:

Important message for Anna Pawelczak. If this is Anna Pawelczak press the one key on your phone now and you will be connected to the next available agent. Again, if this is Anna Pawelczak press one to be connected, otherwise disregard this call or contact us at [phone number] to remove this number. Thank you.

None of the recorded calls left with Pawelczak's voice mail system identified NRC as the source of the call, identified the caller as a debt collector, or indicated that the purpose of the calls related to collecting a debt. At the time she received these phone calls, Pawelczak was unaware that the calls came from a debt collector, or that the calls concerned the collection of a debt. Pawelczak has not received any written communications from NRC.*fn3

NRC's Training and FDCPA Compliance Procedures NRC trains all its employee-collectors to comply with the FDCPA. New hires undergo a one-week training course on NRC policies and procedures, including FDCPA compliance when communicating with debtors. The one-week course utilizes modules provided by the Association of Credit and Collections Professionalism. NRC trains its employees to (1) disclose the full name of the collector; (2) provide the full name of the company, "Nations Recovery Center;" (3) identify the caller as a "debt collector;" and (4) notify the debtor that the call "is an attempt to collect a debt." NRC refers to these disclosures as "Foti compliance." NRC provides each new employee a handbook outlining its policies and procedures.*fn4 However, NRC uses a copy of the FDCPA that was published in 1998 and does not incorporate the 2006 amendments to the Act. Also absent from the training materials is any discussion of how debt collectors are to deal with voice mail systems.

To begin work as an NRC debt collector, NRC requires employees to take a test on the FDCPA and score 100%. None of the test questions relate to leaving FDCPA-compliant voice mail messages to debtors. Collectors must also sign the NRC Collectors Agreement, in which they agree to follow the FDCPA and other federal laws. The Collectors Agreement authorizes NRC managers to monitor collectors' phone calls in order to insure FDCPA compliance. NRC debt collectors are not required to read from a script when conversing with debtors or leaving a voice mail message.

NRC conducts ongoing training in the form of monthly meetings, computer screensavers, and memoranda containing additional FDCPA and Foti compliance tips. FDCPA-related memoranda are posted on bulletin boards in common areas. NRC managers monitor employees' phone calls and coach the collectors on FDCPA compliance. NRC employees who violate the FDCPA or are not in accord with Foti compliance measures may be subject to various disciplinary measures, including retraining, suspension, and termination.

In addition to utilizing its employees to collect debts, NRC also uses a telephone system known as "Dial Connect" to contact debtors. Dial Connect is designed to communicate with live persons but to disconnect the line when it encounters a voice mail system. NRC claims that Dial Connect is 98-99% successful at distinguishing between live persons and voice mail systems. It was designed to comply with industry best standards, and NRC has a procedure in place to make sure that Dial Connect software runs properly.

LEGAL STANDARD

Summary judgment is appropriate when the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact, such that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Protective Life Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). A genuine issue of material fact exists when, based on the evidence, a reasonable jury could find in favor of the non-moving party. Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). When faced with cross-motions for summary judgment, the court views all facts, and draws all reasonable ...


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