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Leo May v. Asset Acceptance LLC

March 28, 2013

LEO MAY, PLAINTIFF,
v.
ASSET ACCEPTANCE LLC, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiff, Leo May, brings this action alleging that Defendant, Asset Acceptance LLC ("Asset"), violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA") and the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Presently before this Court is Asset's motion for summary judgment. (Docket No. 26.) For the following reasons, that motion is granted in part and denied in part.

II. BACKGROUND

A. Facts*fn1

The parties agree that Asset "is in the business of purchasing charged-off accounts from credit originators and other sellers" and that, in 2006, Asset purchased May's defaulted Providian credit card account carrying an unpaid balance of $10,000. (Def.'s Stmnt., ¶¶ 1-4; Docket No. 30.) The parties, however, have divergent views of the more pertinent facts. May asserts that, despite his requests that they stop and his indication that the debt was exempt from collections, Asset made several harassing phone calls in an attempt to collect the outstanding debt. (Pl.'s Stmt., ¶ 10; Docket No. 39.) He further claims that a representative from Asset once falsely informed him that Asset had filed a lawsuit against him and had sent a sheriff to his home. (Id.) Finally, he asserts that Asset failed to correct an Experian credit report that falsely reported the past-due date as 2010 instead of 2006. (Id., ¶ 19.)

Asset paints a different picture. It contends that it made a single, legal telephone call to May, and that it never threatened legal action or suggested that May should expect a sheriff at his home. (Def.'s Stmnt., ¶¶ 10--13.) It also repudiates any responsibility for the incorrect credit report and disputes the import of his exempt status.

B. Procedural History

May filed his complaint in this Court on June 21, 2011. (Docket No.1.) On August 22, 2011, Asset filed its answer. (Docket No. 5.) After discovery, Asset filed the present motion for summary judgment on May 9, 2012. (Docket No. 26.) Briefing on this motion concluded on July 12, 2012, at which time this Court took the motion under consideration.

III. DISCUSSION

A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is "material" only if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A "genuine" dispute exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. In determining whether a genuine dispute regarding a material fact exists, the evidence and the inferences drawn from the evidence "must be viewed in the light most favorable to the party opposing the motion." Adickes v. S. H. Kress & Co., 398 U.S. 144, 158--59, 90 S. Ct.1598, 1609, 26 L. Ed. 2d 142 (1970) (internal quotations and citation omitted).

"Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation omitted). Indeed, "[i]f, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) (citations omitted). The function of the court is not "to weigh ...


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