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Lyneisha Ford v. Principal Recovery Group

September 28, 2011

LYNEISHA FORD, PLAINTIFF,
v.
PRINCIPAL RECOVERY GROUP, INC. DEFENDANT .



The opinion of the court was delivered by: John T. Curtin United States District Judge

INTRODUCTION

By order of the Hon. William M. Skretny, Chief United States District Judge, dated September 23, 2011 (Item 46), this matter has been reassigned to the undersigned for all further proceedings. Plaintiff Lyneisha Ford commenced this action against defendant Principal Recovery Group, Inc. on July 9, 2009, alleging that defendant's verbal and written attempts to collect overdue debts violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692e, e(4), e(5), e(10) and e(11) (Item 1, ¶ 22). Defendant has moved for summary judgment dismissing these claims pursuant to Fed. R. Civ. P. 56 (Item 32). It also seeks attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3), costs pursuant to Fed. R. Civ. P. 37(c)(2), costs and attorney's fees to be paid by plaintiff's counsel pursuant to 28 U.S.C. § 1927, and sanctions pursuant to Fed. R. Civ. P. 11 (Items 29, 36). Plaintiff seeks a stay of the motion to allow further discovery (Item 40).

For the following reasons, plaintiff's motion for a stay and for further discovery is denied. Defendant's motion for summary judgment is granted, and the complaint is dismissed. Defendant's motion for sanctions pursuant to Fed. R. Civ. P. 11 is granted.

BACKGROUND and FACTS

Plaintiff Lyneisha Ford is a former debt collector who received FDCPA training while employed at various collection agencies, and her counsel specializes in pursuing violations of the FDCPA (Item 32, Exh. E, "Ford Dep.," pp. 6-10; Law Offices of Kenneth Hiller Website, available at http://www.kennethhiller.com/Consumer-Protection/Fair-Debt-Collection-Practices-Act-FDCPA.shtml, (last visited Aug. 19, 2011)).

Plaintiff obtained dental services from Dr. Timothy Mahoney on or about January 3, 2007 and was charged $180.39 (Item 34, ¶¶ 3, 4). Plaintiff, by her own admission, did not pay her bill (Ford Dep., pp. 31-32). On or about December 1, 2007, Dr. Mahoney referred his unpaid accounts to defendant Principal Recovery Group, Inc. for collection, including plaintiff's unpaid dental services bill (Item 34, ¶¶ 6-14).

Defendant made its initial attempt to collect plaintiff's unpaid debt by mailing a collection letter to her, advising her of the unpaid status of her account on January 17, 2008 (Item 30, ¶ 4, Exh. A). Plaintiff admits receiving this letter, but she did not respond to it (Ford Dep., pp. 33-34). Defendant sent another collection letter to plaintiff on March 19, 2009, again advising her of the unpaid status of her account (Item 30, ¶ 6, Exh. C). The letter stated clearly that "[t]his is an attempt to collect a debt and any information obtained will be used for that purpose." Id, Exh. A. Plaintiff called defendant to discuss the debt on April 1, 2009 in an attempt to reach a settlement (Ford Dep., p. 61). During the conversation with a debt collector, plaintiff informed the debt collector that she would speak with Dr. Mahoney about the status of the debt and call defendant's office back. Id., pp. 50-51.

Later that day, plaintiff called defendant back and spoke with Eva Toy, a debt collector employed by defendant. Plaintiff recorded the call with a cell phone recording device (Ford. Dep., pp. 51-52). However, the recording device was unable to pick up plaintiff's voice, so only Ms. Toy's responses were transcribed. Id., p. 53. Below are the relevant statements made by Ms. Toy that plaintiff alleges violate the FDCPA:

And then if they, if they . yeah exactly, they give a judgment and then it gets taken out of your, if you're employed it gets taken out of your employment check. . . . . . . . We are a collection agency. So, at this point we have thirty (30) days before it gets posted to your credit history. And then it goes back . . . . . . . . And . . . , I just received [plaintiff's overdue account] in my office today. . . . . . . . Usually [dental offices] keep [overdue accounts] in their office . . . to see if you are willing to attempt to pay it. . . . However, if the patient is not willing to settle the matter then what they do is send it to collections and then after, you know, if the debtor is willing to pay great. If not, what they do is they just do a judgment and they send it to court. They get a judgment and they garnish your wages. . . . (Item 32, Exh. C).

Plaintiff commenced this action June 17, 2009, alleging that the aforementioned statements from defendant's debt collector violated the FDCPA (Item 1, ¶ 22). Specifically, plaintiff alleged that defendant violated: 15 U.S.C. §§ 1692e and e(11) "by not stating in the initial oral communication with [p]laintiff that the communication was from a debt collector in an attempt to collect a debt"; 15 U.S.C. §§ 1692e and e(10) "by falsely and deceptively stating that the [overdue account] had just come into their office, when in fact [d]efendant had the account for over a year"; 15 U.S.C. §§ 1692e, e(4), and e(5) "by stating nonpayment of the debt will result in garnishment of her wages, an action [d]efendant d[id] not intend to pursue and cannot legally pursue." Id.

During her June 29, 2010 deposition, plaintiff acknowledged that she did not remember whether the debt collector explicitly stated that she was a debt collector employed by a debt collection agency--contradicting her 15 U.S.C. § 1692e(11) cause of action in her complaint (Ford Dep., p. 46). In addition, plaintiff contradicted denials her counsel made to defendant's request for admissions (Item 36, pp. 5, 6).*fn1 On August 27, 2010, after depositions of Ms. Toy and the collection agency owner were conducted, defendant wrote a letter to plaintiff demanding that she withdraw "this frivolous lawsuit," and warned that defendant would seek sanctions if plaintiff did not withdraw the action (Item 32, Exh. I). Plaintiff responded on September 9, 2010 by filing a motion to dismiss her claim for actual damages (Item 20).*fn2

On October 28, 2010, defendant served plaintiff with notice of its intent to file a motion for sanctions pursuant to Fed. R. Civ. P. 11, alleging that plaintiff and her counsel were well-versed in the FDCPA and knew from the inception of this action that her claims had no factual basis (see generally Item 29, pp. 8-15). Shortly thereafter, on November 4, 2010, plaintiff filed a motion to dismiss her 15 U.S.C. § 1692e(11) claim, which had alleged that defendant's debt collector did not disclose to plaintiff that she was, in fact, a debt collector during their initial phone conversation (Item 27).*fn3 However, plaintiff did not withdraw her other claims Id.

On November 26, 2010, defendant moved: for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the remainder of plaintiff's FDCPA claims; for attorneys' fees because plaintiff's case was filed in bad faith, pursuant to 15 U.S.C. § 1692k(a)(3); for costs because plaintiff failed to disclose information to defendant's request for admissions pursuant to Fed. R. Civ. P. 37(c)(2); for costs and attorney's fees to be paid by plaintiff's counsel pursuant to 28 U.S.C. § 1927; and for sanctions pursuant to Fed. R. Civ. P. 11 (Item 36; Item 29). Plaintiff responded by filing a motion to stay the summary judgment motion pending the extension of discovery to depose Dr. Mahoney, so that plaintiff may fully oppose defendant's motion (Item 40).

Presently before this court are plaintiff's motion to extend discovery, and defendant's motions for summary judgment and for ...


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