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Timothy L. Keeler and Peggy J. Keeler v. Diversified Collection Services

May 20, 2011

TIMOTHY L. KEELER AND PEGGY J. KEELER, PLAINTIFFS,
v.
DIVERSIFIED COLLECTION SERVICES, INC., DEFENDANT.



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

DECISION AND ORDER

I. INTRODUCTION

In this action, Plaintiffs Timothy L. Keeler and Peggy J. Keeler allege that Defendant Diversified Collection Services, Inc. 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 is Plaintiff Timothy L. Keeler's*fn1 Motion for Partial Summary Judgment. Plaintiff seeks summary judgment on one of his claims for liability.*fn2 For the reasons that follow, this motion will be denied.

II. BACKGROUND

A. Facts

The following relevant and undisputed facts are limited to the claim at issue in Plaintiff's instant motion. Familiarity with the general facts and arguments is presumed.

Plaintiff Timothy L. Keeler incurred a debt in the form of a student loan from HSBC Bank, USA ("HSBC"). (Plaintiff's Statement, ¶ 5;*fn3 Defendant's Statement, ¶ 1.*fn4 ) After Plaintiff stopped making payments, HSBC assigned the loan to the United States Department of Education, which then referred it to Defendant to collect. (Plaintiff's Statement, ¶¶ 5, 8; Defendant's Statement, ¶ 1.) Defendant is a debt collector, as defined by section 1692a(6) of the FDCPA. (Plaintiff's Statement, ¶ 7; Defendant's Statement, ¶ 1.) Defendant assigned the task of collecting the debt to Clifford Martin, one of its collectors. (Plaintiff's Statement, ¶¶ 4, 11; Defendant's Statement, ¶ 1.)

Several weeks into Martin's pursuit of collecting Plaintiff's debt, on August 22, 2008, Martin and Plaintiff spoke by telephone. (Plaintiff's Statement, ¶ 11; Defendant's Statement, ¶ 1.) Martin called Plaintiff at the contact phone number that Plaintiff had provided to Defendant earlier the same day, but reached Plaintiff's answering machine. (Clifford Martin Dep., pp. 47--48.*fn5 ) A few minutes later, Plaintiff returned Martin's call and they discussed, inter alia, collection of Plaintiff's debt. (Clifford Martin Dep., pp. 48--49; Plaintiff's Statement, ¶ 11; Defendant's Statement, ¶ 1.)

Defendant has a policy of keeping a written record of communication efforts with respect to each debt collection account. (Plaintiff's Statement, ¶ 10; Defendant's Statement, ¶ 1.) The record of Martin's notes regarding his August 22, 2008 conversation with Plaintiff reflects the following abbreviated comments:

06:41 Debtor. First Demand Contact: Refuses to Pay (Call-In). [D]btr said has mental dis, and he is bi polar and is gonna have surgery soon said he is getting dis, told him rams of not paying said whatever and hu . . Contacted DCS (Defendant's Transaction History, p. 5.*fn6

With respect to these notes, Martin explained at his deposition that Plaintiff had said that (1) "he had a mental disability," (2) "he was bipolar," (3) "he's going to have surgery soon," and (4) "he's getting disability." (Clifford Martin Dep., p. 49.) Further, Martin had told Plaintiff "the ramifications of not paying" his debt, to which Plaintiff replied, "whatever" and hung up the telephone. (Id.) Also during this August 22, 2008 conversation with Plaintiff, Martin "advised Mr. Keeler of the possibility of the initiation of administrative garnishment procedures to collect the student loan debt." (Plaintiff's Statement, ¶ 11; Defendant's Statement, ¶ 1.)

At the time of this conversation, Plaintiff was receiving $724.00 in monthly Supplemental Security Income ("SSI") benefits. (Plaintiff's Statement, ¶ 15; Defendant's Statement, ¶ 5.)

B. Procedural History

Plaintiffs Timothy L. Keeler and Peggy J. Keeler commenced this action on March 19, 2009, by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Defendant filed an Answer on April 30, 2009. (Docket No. 3.) After the conclusion of discovery and mediation efforts, Plaintiff Timothy L. Keeler moved for Partial Summary Judgment on March 28, 2011. (Docket No. 36.) ...


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