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Gregg T. Chavious v. the Cbe Group

January 12, 2012

GREGG T. CHAVIOUS, PLAINTIFF,
v.
THE CBE GROUP, INC., DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff Gregg Chavious sued Defendant The CBE Group for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the "FDCPA"), arising out of thirty-six phone calls Defendant placed to Plaintiff in error. Pending before the Court is Defendant's motion for summary judgment; for the following reasons, Defendant's motion is GRANTED.

BACKGROUND

The facts are undisputed. Defendant is a debt collector that, in the course of attempting to collect a debt, repeatedly called a phone number that it mistakenly believed belonged to an unnamed debtor. (Def. 56.1 Stmt. ¶¶ 1-11.) In fact, the number was assigned to a cellular phone owned by Plaintiff, who as far as the Court is aware is not related to the debtor in any way. Defendant called Plaintiff thirty-six times between January 20 and March 19, 2010. (Id. ¶¶ 9-10.) No one answered these calls, and Defendant never left a voicemail message. (Id. ¶ 16; Pl. 56.1 Cntr-Stmt. ¶ 48.) Each call was placed between 8:00 a.m. and 9:00 p.m. (Def. 56.1 Stmt. ¶ 15) and, on the five days on which Defendant called Plaintiff more than once, the calls were placed at least 120 minutes apart (id. ¶ 14). At one point, Plaintiff returned Defendant's call, was put on hold, and hung up after a few minutes without speaking with a live operator. (Id. ¶ 24.) On its own initiative, Defendant stopped calling Plaintiff's number on March 19 because it had failed to make contact with anyone on the other end (id. ¶ 17), and it suspended all calls to the number (id. ¶ 18).

DISCUSSION

Plaintiff claims that Defendant's repeated phone calls violated the FDCPA. Defendant moves for summary judgment, arguing that the calls, as a matter of law, do not constitute an FDCPA violation and, in the alternative, that it is entitled to the FDCPA's bona fide error defense. Below, the Court discusses the summary judgment standard and then concludes that there was no FDCPA violation here.

I. Summary Judgment Standard

Summary judgment is only appropriate where the moving

party can demonstrate that there is "no genuine dispute as to any material fact" and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers "the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits." Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also FED. R. CIV. P. 56(c). "In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must "come forward with specific facts," LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S. Ct. 2505, 2514-15, 91 L. Ed. 2d 202, 218 (1986). "Mere conclusory allegations or denials will not suffice." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). And "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

II. Defendant did not Violate the FDCPA

Plaintiff claims that Defendant violated Section 1692d of the FDCPA by "engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. Specifically, Plaintiff charges that Defendant (1) "[c]aus[ed] a telephone to ring or engag[ed] any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number," 15 U.S.C. § 1692d(5), and (2) "place[d] . . . telephone calls without meaningful disclosure of the caller's identity," 15 U.S.C. § 1692d(6). The Court addresses each theory in turn.

The Court agrees with Defendant that, as a matter of law, its calls to Plaintiff's cellular phone do not rise to the level of a FDCPA violation. In evaluating whether repeated phone calls were made "with intent to annoy, abuse, or harass," courts generally consider the volume and pattern of calls.

E.g., Lynch v. Nelson Watson & Assocs., LLC, No. 10-CV-2025, 2011 WL 2472588, at *2 (D. Kan. June 21, 2011). The caller's intent is often a jury question, see Kavalin v. Global Credit & Collection Corp., No. 10--CV--0314, 2011 WL 1260210, at *4 (W.D.N.Y. Mar. 31, 2011); see also Akalwadi v. Risk Mgmt. Alts., Inc., 336 F. Supp. 2d 492, 506 (D. Md. 2004) ("The reasonableness of this volume of calls and their pattern is a question of fact for the jury."), but courts have disagreed as to the volume and pattern of calls sufficient to create an issue of fact of the defendant's intent to annoy, abuse, or harass. Krapf v. Nationwide Credit Inc., No. 09-CV-0711, 2010 WL 2025323, at *3 (C.D. Cal. May 21, 2010).

Plaintiff has not established a triable issue of fact in this case. Courts have awarded defendants summary judgment where the volume and pattern of calls demonstrates an intent to contact debtors rather than an intent to annoy, abuse, or harass them. See Carman v. CBE Group, Inc., 782 F. Supp. 2d 1223, 1232 (D. Kan. 2011) ("[T]he evidence suggests an intent by CBE to establish contact with plaintiff, rather than an intent to harass."); Tucker v. CBE Group, Inc., 710 F. Supp. 2d 1301, 1305 (M.D. Fla. 2010). In these cases, as here, the caller was unable to reach anyone on the other end of the phone or the call recipient did not ask the defendant to refrain from calling. Carman, 782 F. Supp. 2d at 1232; Tucker, 710 F. Supp. 2d at 1305. In the Court's view, the volume and pattern of calls in this case--thirty-six calls over approximately two months, all made at reasonable times and not one immediately following another--is consistent with cases in which other courts have awarded defendants summary judgment on Section 1692d(5) claims. See, e.g., Lynch, 2011 WL 2472588, at *2 (fifty-six calls over approximately three months, without more, was not an FDCPA violation); Carman, 782 F. Supp. 2d at 1227 (149 calls over two months, without more, was not a violation); Clingaman v. Certegy Payment Recovery Svcs., No. 10--2483, 2011 WL 2078629, at *4 (S.D. ...


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