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Debbie K. anderson, Individually and On Behalf of Those Similarly v. Leading Edge Recovery Solutions

September 30, 2012

DEBBIE K. ANDERSON, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED PLAINTIFFS,
v.
LEADING EDGE RECOVERY SOLUTIONS, LLC, DEFENDANT.



The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

Plaintiff Debbie K. Anderson filed her complaint on July 14, 2011 (Doc. 2) and was subsequently given leave to amend and add class claims (Doc. 18). Ms. Anderson alleges that she never authorized Defendant, a debt-collection agency working on behalf of Capital One, to call her cell phone, but she nevertheless received and was charged for calls from Defendant. She alleges that Defendant's operators never identified themselves as representatives of a debt collector and never identified Leading Edge Recovery or identified Leading Edge Recover as a debt collector. There are two counts in the complaint: (1) Defendant violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et. seq.; and (2) Defendant violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227 et. seq.

Defendant filed a motion for summary judgment on February 21, 2012 (Doc. 52). Plaintiff responded and the Court held a hearing on Defendant's motion April 23, 2012 (Docs. 65,66, 69). The Court has fully considered the parties' papers and oral arguments and, for the reasons stated below, now DENIES Defendant's motion for summary judgment.

Facts

Defendant submitted a "statement of uncontested facts" as part of its motion for summary judgment (Doc. 53-2). According to Defendant, Plaintiff opened a Capital One Platinum MasterCard account in October 2002, used and maintained a balance on that account, and received a 2010 Capital One Customer Agreement in connection with the account. Plaintiff incurred debt on the account and Capital One contracted her debt to Defendant for collection. Defendant sent Plaintiff a June 27, 2010 collection letter. Plaintiff then received six collection calls. The callers left their names and return numbers, but did not identify themselves as representatives of Defendant. Defendant states that it was authorized by Capital One to make these calls to Plaintiff and that Capital One is Leading Edge's customer. Defendant also claims that the collection calls resulted in no "special charges" to Plaintiff.

UnfortunatelySin the context of a motion for summary judgment, and as the Court deems some of these fact issues to be materialSPlaintiff does contest several of Defendant's "uncontested facts" (Doc. 65). Plaintiff denies that Defendant was authorized by Capital One to call her cell phone, citing the "Master Services Agreement" between Capital One and Leading Edge. Plaintiff classifies Leading Edge as an independent contractor for Capital One. Plaintiff adds the following "uncontroverted" facts, which Defendant in turn controverts (Doc. 68): Defendant trained its employees to leave voice messages that violate the FDCPA; Capital One refused to allow Defendant to use Capital One assets, which included documentation; Capital One did not provide Defendant with copies of the 2010 Customer Agreement; Plaintiff never gave her cell number to Capital One and does not know how Capital One obtained that number; Plaintiff never authorized Capital One to call her cell number using an automated telephone dialing system; and Plaintiff never consented to Defendant calling her on her cell phone using an automatic telephone dialing system (Doc. 68).

Defendant's Motion for Summary Judgment

Defendant challenges Plaintiff's standing to bring this suit, claiming Ms. Anderson has not sustained an injury-in-fact, and is seeking only statutory damages. In response, Plaintiff claims that the Seventh Circuit has rejected such a position in Keele v. Wexler, 149 F.3d 585, 593-94 (7th Cir. 1998) ("The FDCPA does not require proof of actual damages as a precursor to the recovery of statutory damages.").

Defendant claims there is no FDCPA § 1692(d)(6) violation because the statute does not require it to identify itself as a "debt collector," it only requires Defendant to give the caller's identity. Defendant also argues that there is no evidence it caused charges to be made by concealment, so there is no FDCPA § 1692(f)(5) violation, and because the evidence that Plaintiff was left six 'annoying' voicemails is insufficient to show harassment or abuse, there is no FDCPA § 1692(d)(5) violation. Plaintiff responds that Defendant is required to disclose that it is a debt collection company, and that it is undisputed Defendant did not identify itself either by name or as a debt collector.

Defendant argues that it is entitled to summary judgment on Plaintiff's TCPA claim because Plaintiff did give her authorized consent for the calls--via the 2010 Capital One Customer Agreement. Plaintiff agrees she did receive that 2010 Capital One Customer Agreement (Doc. 65). Defendant points to the "Communications" section of that Agreement, which states:

We may contact you from time to time regarding your Account. We may contact you in any manner we choose unless the law says that we cannot. For example, we may:

(1) contact you by mail, telephone, email, fax, recorded message, text message or personal visit;

(2) contact you using an automated dialing or similar ...


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