United States District Court, S.D. New York
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For Krisber Castro, Mario Castro, Plaintiffs: Brian Lewis Bromberg, LEAD ATTORNEY, Bromberg Law Office, P.C., New York, NY; Joseph Mario Mauro, LEAD ATTORNEY, Law Office of Joseph Mauro, LLC, West Islip, NY; Ronald Wilcox, Ronald Wilcox Attorney, San Jose, CA.
For Green Tree Servicing LLC, Defendant: Michael J. Catalfimo, William J. Decaire, LEAD ATTORNEYS, Jonathan Eric Hansen, Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, NY.
For Kevin Smith, Defendant: Jonathan Eric Hansen, William J. Decaire, Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, NY.
OPINION AND ORDER
Plaintiffs Krisber and Mario Castro (" Plaintiffs" or the " Castros" ) commenced this action against Defendants Green Tree Servicing LLC (" Green Tree" ) and Kevin Smith (collectively, " Defendants" ) alleging violations of 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" ). Amended Complaint (" Am. Compl." ) ¶ ¶ 66-94 (Doc. 10.) Before the Court are the parties' cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. Docs. 48, 57. Specifically, Plaintiffs move for summary judgment on certain of their FDCPA claims, Doc. 48, and Defendants move for summary judgment on Plaintiffs' TCPA claim. Doc. 57. Additionally, Defendants request that the Court limit Plaintiffs at trial to " garden variety" emotional distress damages on their FDCPA claims. Id . For the reasons set forth below, Plaintiffs' motion is GRANTED in part and DENIED in part, and Defendants' motion is DENIED.
I. Factual Background
The following facts are undisputed except where otherwise noted.
a. Defendants' Written Communications to Plaintiffs
On or about August 11, 2004, Plaintiff Krisber Castro executed a note (the " Note" ) in the principal amount of $83,000 payable to National Bank of Kansas, secured
by a mortgage (the " Mortgage" ) on the home she owns with her husband, Mario Castro. Pls.' 56.1 Stmt. ¶ 1.
In or about 2008, the Castros fell behind on their mortgage payments. Id . ¶ 7. Beginning in February 2009, Countrywide Home Loans (" Countrywide" ), and then Bank of America (" BOA" ), sent Plaintiff Krisber Castro Monthly Home Loan Statements stating that their " records indicate that [her] loan [was] in default." Declaration of Krisber Castro (" Krisber Decl." ) (Doc. 52), Ex. C. In or about August 2009, BOA sent Ms. Castro a notice stating that " [BOA] . . . services your home loan on behalf of the holder of your note (Noteholder). This is to advise you that your account remains seriously delinquent." Krisber Decl., Ex. D. The notice further stated that " [i]f we do not hear from you immediately, we will have no alternative but to take appropriate action to protect the interest of the Noteholder in your property. . . . [BOA] . . . will proceed with collection action until your account is brought fully current . . . ." Id . The notice advised that the total amount due on August 16, 2009 was $710.14. Id .
In or about August 2009, after the debt was in default, Defendant Green Tree, a debt collector, acquired the right to collect the defaulted mortgage debt from Plaintiffs. Pls.' 56.1 Stmt. ¶ ¶ 10, 12; see also Krisber Decl., Ex. E; Declaration of Brian L. Bromberg (" Bromberg Decl." ) (Doc. 51), Ex. 1 at 7 ¶ 10, Ex. 2 at 7 ¶ 10 (admitting that Green Tree is a " debt collector" as defined by 15 U.S.C. § 1692a(6)). Thereafter, Ms. Castro received a letter from Green Tree dated September 18, 2009. Pls.' 56.1 Stmt. ¶ 13. The letter stated that it was " an attempt to collect a debt" and identified Green Tree as a " debt collector." Krisber Decl., Ex. E. The letter also stated that the servicing of Plaintiffs' loan was transferred to Green Tree on September 1, 2009, and identified the creditor as Citizens Bank of Pennsylvania. Id . The letter further advised:
AS OF THE DATE OF THIS LETTER, YOU OWE $81,263.47. BECAUSE OF INTEREST, LATE CHARGES, AND OTHER CHARGES THAT MAY VARY FROM DAY TO DAY, THE AMOUNT DUE ON THE DAY YOU PAY MAY BE GREATER. HENCE, IF YOU PAY THE AMOUNT SHOWN ABOVE, AN ADJUSTMENT MAY BE NECESSARY AFTER WE RECEIVE YOUR CHECK, IN WHICH EVENT WE WILL INFORM YOU BEFORE DEPOSITING THE CHECK FOR COLLECTION. FOR FURTHER INFORMATION, CONTACT CUSTOMER SERVICE AT THE ADDRESS OR TOLL-FREE NUMBER LISTED ABOVE.
Id . At no time before sending the September 18, 2009 letter did Green Tree accelerate the Note. Pls.' 56.1 Stmt. ¶ 18.
On September 21, 2009, Green Tree sent Ms. Castro a second letter, offering automatic payment services and advising that she would soon begin receiving monthly mortgage statements from Green Tree. Krisber Decl., Ex. F.
Thereafter, Green Tree sent Ms. Castro a monthly billing statement dated September
26, 2009, which stated that the " total payment due" on October 16, 2009 was $1,704.02, which consisted of a current payment of $682.82 and a past due amount payment of $1,021.20. Krisber Decl., Ex. G. Accompanying the September 26, 2009 bill was a form in which Green Tree advised Plaintiffs of the types of personal information it collects and shares, the reasons it can share their personal information, and whether Plaintiffs can limit this sharing. Id .
On or about October 28, 2009, Green Tree sent Ms. Castro a notice entitled " 90 Day Notice," which stated: " You could lose your home. Please read the following notice carefully." Krisber Decl., Ex. H. The letter further stated:
As of 10/28/2009, your home is 73 days in default. Under New York State Law, we are required to send you this notice to inform you that you are at risk of losing your home. You can cure this default by making the payment of $1,704.02 dollars by 01/29/2010.
* * *
While we cannot assure that a mutually agreeable resolution is possible, we encourage you to take immediate steps to try to achieve a resolution. The longer you wait, the fewer options you may have. If this matter is not resolved by 01/29/2010, we may commence legal action against you (or sooner if you cease to live in the dwelling as your primary residence).
After the 90 Day Notice of default expired, Green Tree determined not to commence suit against Plaintiffs. Bromberg Decl., Ex. 3 (Rule 30(b)(6) Depo. Tr.) at 206-27.
b. Defendants' Telephone Calls
Soon after Plaintiffs received the first letter from Green Tree dated September 18, 2009, they began receiving calls on their home and cell phones from Defendant Smith, a collector employed by Green Tree, who contacted Plaintiffs in an attempt to get them current on their loan payments. Defs.' Response to Pls.' 56.1 Stmt. ¶ ¶ 29-30, 33. It is undisputed that Smith placed numerous calls to Plaintiffs in an attempt to collect on their debt. Id . ¶ ¶ 33-34. It is also undisputed that on six occasions, Plaintiffs returned Defendants' calls using their cell phones. See Pls.' Response to Defs.' 56.1 Stmt. ¶ ¶ 5-6, 10. The parties also agree that Plaintiffs never went over their allotted cell phone minutes in the months in which Green Tree placed calls to their cell phones. Id . ¶ 11. Mario Castro testified that he believes that Green Tree obtained Plaintiffs' cell phone numbers from its Caller ID when Plaintiffs initiated the calls to Green Tree. See Affidavit of Jonathan E. Hansen (" Hansen Aff." ) (Doc. 58), Ex. K (Mario Castro Depo. Tr.) at 25.
The parties dispute the number of calls Green Tree placed to Plaintiffs' cell phones. Although Plaintiffs admit that the cell phone records introduced at the deposition of the Verizon Wireless representative indicate only four calls to Plaintiffs' cell phones, they contend that those phone records do not include all the calls placed by Green Tree to their cell phones. Pls.' Response to Defs.' 56.1 Stmt. ¶ 8. For
their part, Defendants state that none of these four calls to Plaintiffs' cell phones were made using an automatic dialing system. Defs.' 56.1 Stmt. ¶ 9. Plaintiffs, on the other hand, point to Green Tree's Rule 30(b)(6) witness, who unequivocally testified at his deposition that at least thirty-four telephone calls were made with an automatic dialing system to one of the Plaintiffs' cell phone numbers. See Pls.' Response to Defs.' 56.1 Stmt. ¶ 9; see also Affirmation of Joseph Mauro (" Mauro Aff." ) (Doc. 71), Ex. M (30(b)(6) Depo. Tr.) at 11-12 (" Q. So there's 34 calls that were made with an auto dialer to the telephone number 845-536-9192, appearing in these notes, correct? A. Yes, sir. Q. And then there are two calls that you are suggesting the auto dialer attempted to call, but the calls didn't go through? A. That's correct." ); Ex. B (Verizon Wireless Depo. Tr.) at 4-5 (testifying that 845-536-9192 is one of the cell phone numbers assigned to Mario Castro by Verizon Wireless). Additionally, Defendants assert that one of Plaintiffs' cell phone numbers was mistakenly listed by Green Tree as a non-cell phone number, and that once the error was discovered, the listing was changed. Defs.' 56.1 Stmt. ¶ ¶ 13-14; see also Hansen Aff., Ex. M (30(b)(6) Depo. Tr.) at 20, 23-24. Defendant Smith testified that Green Tree instructed its employees not to call consumers' cell phone numbers using the automatic dialer without their consent. See Hansen Aff., Ex. J (Smith Depo. Tr.) at 85-86. Plaintiffs, on the other hand, contend that Defendants' calls to their cell phones were " no mistake" and that they were made " [a]s part of [Green Tree's] orchestrated campaign of harassment." Pls.' Response to Defs.' 56.1 Stmt. ¶ ¶ 13-14. In support of their assertion, Plaintiffs point to the deposition transcript of non-parties who also claim to have received collection calls from Green Tree, as well as a list of state lawsuits against Green Tree. Id.; see also Mauro Aff., Exs. I, J, K. Moreover, Tammy Beaty, who the Court assumes is a current or former collector for Green Tree, testified that she is not aware of any Green Tree policy prohibiting calls to consumers' cell phones. Mauro Aff., Ex. G (Beaty Depo. Tr.) at 49.
Plaintiffs included in their submissions to the Court a transcription of thirty voicemail messages left by Defendant Smith and his coworkers on the Plaintiffs' home and cellular phones. Krisber Decl., Ex. I; Pls.' 56.1 Stmt. ¶ 44.
II. Legal Standard
Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). " An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky , 559 F.3d 133, 137 (2d Cir. 2009)). A fact is " material" if it might affect the outcome of the litigation under the governing law. Id . The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material
fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its burden, " the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Saenger v. Montefiore Med. Ctr., 706 F.Supp.2d 494, 504 (S.D.N.Y. 2010) (internal quotation ...