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Dean Hinderliter and Alice Hinderliter v. Diverisified Consultants

September 7, 2012

DEAN HINDERLITER AND ALICE HINDERLITER, PLAINTIFFS,
v.
DIVERISIFIED CONSULTANTS, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiffs claim that in the course of attempting to collect a debt owed by plaintiff Dean Hinderliter to Sprint for a personal cellular telephone bill, defendant, a collection agency, violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Defendant moves (Dkt. No. 23) for summary judgment and an award of attorney's fees. The Court grants the motion, except insofar as it seeks attorney's fees, and dismisses the complaint.

FACTS

In addressing defendant's motion for summary judgment (Dkt. No. 23), the Court relies primarily on the following, all of which were submitted by plaintiffs in opposition to the motion: defendant's account history; the transcript of the November 3, 2011 deposition of Rebecca A.

Losco ("Losco"), the collector employed by defendant who handled plaintiffs' account; and the transcript of the August 23, 2010 telephone conversation between Losco and plaintiffs. There is no declaration from Dean Hinderliter or Alice Hinderliter.

Plaintiffs do not challenge the accuracy of the transcript of the August 23, 2010 telephone conversation. Thus, the Court relies on the transcript as conclusive evidence of the content of that conversation, and does not consider plaintiffs' characterizations of the conversation in their complaint, answers to interrogatories, statement of material facts, and memorandum of law.*fn1 Nor do plaintiffs challenge the accuracy of the account history, and the Court accepts it as undisputed evidence of the events recorded therein.

The Court also relies on the affidavit of Mavis Pye ("Pye"), defendant's Compliance Officer. Pye's affidavit establishes that defendant does not disguise or hide its telephone calls through the use of a "private" or "unavailable" call designation.*fn2

Based on these submissions, the undisputed facts are as follows. On August 18, 2010 defendant received the account from Sprint, claiming that plaintiff Dean Hinderliter owed it $513.98. On August 19, 2010 defendant sent Dean Hinderliter a collection letter.*fn3 On August 23, 2010, Losco first telephoned plaintiffs' home, speaking with Dean Hinderliter and then with his wife Alice Hinderliter. Losco did not succeed in obtaining a payment from them during that conversation. Thereafter, she placed five additional calls to plaintiffs' telephone number in August 2010, seventeen calls in September 2010, and fifteen calls between October 1 and 22, 2010. Except for the initial conversation on August 23, 2010, plaintiffs never answered Losco's calls. Defendant does not disguise or hide its telephone calls through the use of a "private" or "unavailable" call designation. It appears that on each unanswered call Losco left a message on plaintiffs' answering machine.

Plaintiffs' complaint claims:

a. Defendant violated §1692d of the FDCPA by engaging in conduct the natural consequence of which is to harass, oppress or abuse Plaintiffs in connection with the collection of a debt; and

b. Defendant violated §1692d(5) of the FDCPA when Defendant caused Plaintiffs' telephone to ring repeatedly and continuously with the intent to annoy, abuse, and harass Plaintiffs.

The complaint seeks statutory damages of $1,000 plus attorney's fees and costs.

By order dated January 4, 2012 (Dkt. No. 29), this Court affirmed the text order of United States Magistrate Judge George H. Lowe, dated November 17, 2011, denying plaintiff's request (Dkt. No. 21) for leave to serve and file an amended complaint alleging a violation of section 1692e(10) of the FDCPA (using false, deceptive, or misleading means to collect a debt). As set forth below, the Court grants defendant's ...


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