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DeGeorge v. LTD Financial Services

March 31, 2008

MARK E. DEGEORGE, PLAINTIFF,
v.
LTD FINANCIAL SERVICES, L.P., DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

In this action, Plaintiff Mark E. DeGeorge alleges that Defendant LTD Financial Services, L.P. engaged in unlawful debt collection practices in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Presently before this Court are the parties' Motions for Partial Summary Judgment. Plaintiff seeks summary judgment on liability;*fn1 Defendant seeks summary judgment on Plaintiff's claim for actual damages.*fn2 Due to the existence of material issues of disputed fact, both motions will be denied.

II. BACKGROUND

A. Facts

1. Defendant's Attempts to Collect the Debt

In 2002, Plaintiff incurred a $15,000 debt in the form of a loan from JP Morgan Chase Bank, N.A. for the purchase of a Dodge Intrepid. (Plaintiff's Statement, ¶¶ 3, 4;*fn3 M. DeGeorge Dep., pp. 34-35.*fn4 ) After Plaintiff stopped making payments, JP Morgan Chase retained Defendant to collect the debt. (Plaintiff's Statement, ¶ 6; Defendant's Statement, ¶ 1.*fn5 ) Defendant assigned the task of collecting the debt to Ronald Ross, one of its collectors. (Plaintiff's Statement, ¶¶ 7, 9, 10.)

In February 2006, Ross tried contacting Plaintiff using three different telephone numbers. (Plaintiff's Statement, ¶ 9.) On February 1 and 2, 2006, Ross called Plaintiff at his mother's house. (Plaintiff's Statement, ¶¶ 10A, 10B.) Ross twice left messages requesting that Plaintiff return his call to an 800 number. (Plaintiff's Statement, ¶¶ 10A, 10B.)

On February 3, 2006, Ross reached Plaintiff's mother (Janet Hannon) and left a message with her. (Defendant's Counter Statement, ¶ 10.*fn6 ) Ross then called Plaintiff's brother's house (Wayne DeGeorge),*fn7 and left the following message:

Yes. The call is for Mr. DeGeorge. Mr. DeGeorge, my name is Ron Ross, calling long distance from Houston. I'm trying to contact a Mark DeGeorge. Spoke with a lady at 592-7019. She advised she would try and get the message to him. And, also, I'm trying another family member, hopefully. My number here at my office is (800) 741-2100, Extension 2854. (Plaintiff's Statement, ¶¶ 8, 10C; Ross Dep., p. 38.*fn8

Several minutes after the messages were left at his mother's and brother's houses, Plaintiff called Ross. (Plaintiff's Statement, ¶ 10E.) Plaintiff and Ross initially discussed a possible resolution of the debt but acceptable terms could not be reached, at which point both Plaintiff and his mother directed Ross not to call that number in the future. (Plaintiff's Statement, ¶ 10E.) Plaintiff did not, however, tell Ross whether he lived with his mother. (Ross Dep., p. 26.)

After this call (still on February 3, 2006), Ross attempted to reach Plaintiff at a third number, but found that the number was not in service. (Plaintiff's Statement, ¶ 10F.) Ross then tried unsuccessfully to reach Plaintiff at his brother's house again. (Plaintiff's Statement, ¶ 10G.) He left the following message:

Yes. This call is for Mark. Mark, this is Mr. Ross, calling from Houston. I just spoke with you concerning a very important matter. You simply hid behind your mom's skirt tail, I guess, and hung up the phone. That's not a good thing. This is business, Mark, and you're going to have to learn business. You need to call me here in the office or have someone that will represent you to call me. We're not - - we're going to continue with our process as far as your - - the law allows and as far as the - - the client will authorize. And, hopefully, this is -- this will be drawn up here real soon and - - and resolved. I'm going to be here in my office - - " (Ross Dep., pp. 45, 50-52*fn9 (hereinafter "the skirt-tail message").)

Later that day, Wayne DeGeorge returned Ross's call and left the following message on Ross's answering machine:

Yeah. Hi, Mr. Ross. My name is Wayne DeGeorge. I got a - -a message on my machine that you were trying to - - to reach Mark DeGeorge or get a message forwarded to him. It sounds pretty urgent so I - - I wanted to return your call. My name is -- is Wayne DeGeorge. I'm at area code (716) ...


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