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Thomas F. Moltz v. Firstsource Advantage

August 1, 2011

THOMAS F. MOLTZ, PLAINTIFF,
v.
FIRSTSOURCE ADVANTAGE, LLC, 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 case, Plaintiff Thomas F. Moltz alleges that Defendant, Firstsouce Advantage, LLC ("Firstsource"), violated his rights under the Fair Debt Collection Practices Act ("FDCPA") and the Telephone Consumer Protection Act ("TCPA"). Specifically, Plaintiff alleges that Defendant violated the FDCPA by repeatedly calling his cellular telephone with the intent to annoy, abuse, and harass him, and violated the TCPA by initiating telephone calls to his cellular telephone and using an artificial or prerecorded voice to deliver messages without his consent.

Currently before this Court are Plaintiff and Defendant's cross Motions for Summary Judgment. (Docket Nos. 22, 23.) For the following reasons, Plaintiff's motion is denied and Defendant's motion is granted in part and denied in part.

II. BACKGROUND

A. Facts

The following facts are not in dispute. Plaintiff defaulted on a cable bill for service he had with Time Warner Cable. (Plaintiff's Stmt. ¶¶ 1, 2.) In July 2007, Time Warner turned Plaintiff's file over to Firstsource, after several unsuccessful internal attempts to collect Plaintiff's defaulted account. (Def.'s Stmt. ¶¶ 5, 8.) In its efforts to collect the debt, Firstsource called a telephone number for Plaintiff provided to it by Time Warner, which happened to be for Plaintiff's cellular telephone. (Def.'s Stmt. ¶¶ 10, 11.) Plaintiff obtained his cellular telephone service through his boss, and the account for cellular services was in his boss's name. (Def.'s Stmt. ¶ 13, Def.'s Ex. D.) This cellular phone was Plaintiff's only telephone during the relevant time period. (Def.'s Ex. D.)

After Plaintiff received several calls, he contacted Firstsource and stated that he did not owe any money and did not want to be called again. (Def.'s Stmt. ¶¶ 19, 20, 21.) Nonetheless, Firstsource continued calling Plaintiff. (Plaintiff's Stmt. ¶¶ 17, 19.) Plaintiff never sent Firstsource a written request to cease the calls. (Def.'s Stmt. ¶ 22.) Firstsouce closed the collection account on December 10, 2007, without collecting Plaintiff's debt. (Def.'s Stmt. ¶ 23.)

Plaintiff and Defendant dispute how Time Warner initially procured Plaintiff's cellular telephone number. Time Warner asserts that it was common practice for it to obtain a telephone number from a customer when opening an account for services, and therefore, that the contact information used by Time Warner for collection efforts would most likely have been provided by Plaintiff. (Def.'s Stmt. ¶¶ 4, 6.) In his deposition, however, Plaintiff stated that he did not recall providing Time Warner with his telephone number, but that if asked for a telephone number, he typically provided the number for his cellular telephone. (Def.'s Ex. D.)

B. Procedural History

Plaintiff commenced this action on March 20, 2008, by filing a complaint in the United States District Court for the Western District of New York.

On September 30, 2009, Defendant filed a Motion for Summary Judgment on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure, and Plaintiff cross filed a Motion for Partial Summary Judgment on all claims for liability only.

III. DISCUSSION

A. Summary Judgment ...


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