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Davida Conover v. Byl Collections Services

September 21, 2012


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge



Plaintiff Davida Conover ("Conover") has filed suit against BYL Collection Services, LLC ("BYL") alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"), the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), and New York General Business Law § 349 ("NYGBL"). (Docket # 1). Currently pending before the Court is BYL's motion for summary judgment on all of Conover's claims.*fn1 (Docket # 16). Also pending are Conover's motions to compel and to supplement the record on the motion for summary judgment, as well as BYL's cross-motion for a protective order and motion for attorney's fees. (Docket ## 11, 14, 17, 29).

For the reasons discussed below, BYL's motion for summary judgment is granted, and Conover's motion to supplement the record is denied. BYL's motion for attorney's fees is denied. Conover's motion to compel and BYL's motion for a protective order are denied as moot.


Filed on May 9, 2011, Conover's complaint alleges that in December 2010 BYL began calling her concerning a twenty-year-old debt she owed to the Spiegel Catalogue Company ("Spiegel"). (Docket # 1 at ¶¶ 8, 12). The complaint further alleges that, in pursuit of collection, BYL placed automated calls with prerecorded voice messages on her residential phone line. (Id. at ¶ 13). Conover also alleges that, although she notified BYL that the debt was beyond the statute of limitations and that she was unemployed, BYL threatened to garnish her wages and contact an attorney, implying that a lawsuit would be filed against her if she did not pay the debt. (Id. at ¶¶ 16, 17). Finally, Conover asserts that BYL failed to timely advise her in writing of her rights under New York and federal law. (Id. at ¶ 18).

BYL moved for summary judgment on October 4, 2011. (Docket # 16). In support of its motion, BYL provided affidavits from Raymond Stein, Senior Vice President of Operations for BYL, and Christopher Jones, Senior Recovery Manager and Assistant Vice-President for Recovery/Agency Management for Citizens Bank ("Citizens"). (Docket ## 16-1, 16-3). According to Jones, Citizens hired BYL to collect a $336.16 debt that Conover incurred in 2010 by overdrawing a bank account that she maintained with Citizens. (Docket # 16-3 at ¶¶ 3-6). Stein's affidavit explains that BYL began efforts to collect that debt from Conover in February 2011.*fn2 (Docket # 16-1 at ¶¶ 3-4). Appended to Stein's affidavit are

(1) BYL's account history detailing its efforts to collect the debt, which includes a log of calls from BYL to Conover's phone number and (2) recordings and transcripts of two telephone calls placed by Conover to BYL. (Id. at ¶¶ 4-11, 15). Stein affirms that the transcripts and recordings are "true and accurate" and reflect the only conversations that occurred between Conover and any BYL representative. (Docket ## 16-1 at ¶¶ 7, 10, 15; 16-1, Ex. B; 24-1 at ¶ 4).

The account history shows that between February 9, 2011 and May 9, 2011, BYL made twenty-seven outgoing calls to and received two incoming calls from Conover, the first on February 10, 2011 and the second on April 28, 2011. (Docket # 16-1, Ex. A). All of the calls were to and from the same telephone number, which was the telephone number Conover had provided on her Citizens bank account application. (Docket # 16-3, Ex. A). The parties agree that the number was a cellular phone number. (Docket ## 16-4 at ¶ 9; 22-2 at ¶ 9).

According to the February 10, 2011 transcript, Conover telephoned BYL and spoke with a collections representative. (Id. at ¶ 7). During this conversation, the representative advised Conover that BYL had been "calling in reference to the Citizens Bank account that has a past due balance of $336.16." (Id.). Conover responded that she did not "owe them that much." (Id).

Stein further affirms that BYL sent Conover a written debt validation notice that same day, which was the only written communication exchanged between BYL and Conover. (Id. at ¶ 8; Docket # 24-1 at ¶ 5, Ex. B). The letter was addressed to Conover, dated February 10, 2011, and advised Conover that Citizens had assigned her delinquent account to BYL to collect $336.16. (Docket # 24-1, Ex. B). The letter informed Conover that she could dispute the validity of the debt within thirty days and that she had the right to verification of the debt. (Id.).

According to the transcript of Conover's April 28, 2011 call to BYL, Conover asked for BYL's address, stating that she wished to mail a payment; after receiving the address from the representative, Conover stated, "I'm going to sue you." (Docket # 16-1 at ¶ 10).

According to Stein, the transcripts reflect the only telephone conversations BYL had with Conover and no unrecorded telephone conversations ever took place. (Id. at ¶ 15). The transcripts of the two recordings contain no threats to sue Conover or garnish her wages or statements by Conover that she was unemployed. (Id. at ¶¶ 19-21). Finally, Stein affirms that BYL never left any automated or prerecorded messages on Conover's voicemail or answering machine and that it used a fixed calling schedule to attempt to reach Conover. (Id. at ¶ 9).

The sole evidence Conover has provided in opposition to BYL's motion for summary judgment is her own nine-sentence affidavit. (Docket # 22-3). That affidavit mirrors nearly verbatim the conclusory allegations contained in her initial complaint and provides no additional detail regarding the dates and times of any of the telephone calls or alleged conversations with BYL. (Id.). Indeed, Conover does not dispute the accuracy of the two telephone calls recorded by BYL.*fn3 In addition, Conover admits that she had a bank ...

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