TCPA Decision: Not responding to a motion for summary judgment

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There is an odd decision — or I should say the Plaintiff acted oddly — and the result was the defendants (LVNV Funding, Northland Group, and Citibank) were dismissed from the case.

You can read this decision of Schweitzer v. Northland Group, LVNV Funding and Citibank which was released by the Southern District of Florida court on November 6, 2014.

Here are the basic facts:

Schweitzer alleges that Defendants have sought to collect on his credit-card debt since around November 11, 2011. DE 7 (Amended Complaint) ¶ 12. Schweitzer contends that Defendants’ communications during their collection efforts have been harassing, inaccurate, and otherwise wrongful. On this basis, Schweitzer asserts the following claims: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., against Northland; (2) violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, against all Defendants; and (3) violation of the Florida Consumer Collection Practice Act (“FCCPA”), Fla. Stat. § 559.55, et seq., against all Defendants. Am. Compl. ¶¶ 30-46. Defendants have now moved for summary judgment on Schweitzer’s claims against them. See DE 40-42.

Pretty standard stuff. Credit card debt is often sold and a company like LVNV will claim to buy the debt. LVNV normally doesn’t collect directly but instead outsources the collection to a debt collector such as Northland. Collection is much more efficient if an auto-dialer (computer dialer) is used rather than a human being dialing the numbers.

But here is where the conduct of the Plaintiff gets odd:

The Court begins by noting that Schweitzer has failed to file a timely response to Defendants’ Motions. Defendants filed the Motions on September 2, 2014. See DE 40-42. Any opposition to the Motions was due by September 19, 2014. See S.D. Fla. L.R. 7.1(c). However, Schweitzer did not respond by that deadline. Instead, on September 26, 2014, he requested additional time to file his opposition papers. DE 57-59.

The Court granted Schweitzer’s request for an extension of time, and allowed him until October 3, 2014, to respond. DE 60. However, October 3 came and went, and Schweitzer still had not filed any response. On October 7, 2014, the Court directed Schweitzer to file his opposition papers no later than October 10, 2014. DE 61. The Court also informed Schweitzer that if he continued to disregard the Court’s deadlines, the Court would not consider his subsequent filings in resolving the Motions. Id. at 1. But Schweitzer again failed to file a timely response. See DE 63-65. Because Schweitzer’s papers in opposition to the Motions were untimely, despite substantial accommodations by the Court, the Court will not consider those materials in resolving the Motions.

What to say? You have to show up to the game if you want to play. If you file a lawsuit, you have to follow the deadlines. The federal judge seems to have been very accommodating to changing the deadlines, extending the deadlines, etc. but at some point the patience is exhausted.

Turning to the substance, the court points out that in a Fair Debt Collection Practices Act (FDCPA) case, the Plaintiff must prove the debt is a consumer debt:

To prevail on a FDCPA claim, a plaintiff must prove that: (1) he has been the target of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined under the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. Battle v. Gladstone Law Group, P.A., 951 F. Supp. 2d 1310, 1313 (S.D. Fla. 2013); see also 15 U.S.C. §§ 1692a(5), 1692d, 1692e.

A consumer debt is “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5); see also Abby v. Paige, 903 F. Supp. 2d 1330, 1334 (S.D. Fla. 2012). Northland argues that Schweitzer has provided no evidence that the debt at issue was a consumer debt, or in other words that the debt was incurred in connection with personal, family, or household purposes. DE 42-1 at 12; DE 42-2 ¶ 9; see also DE 40-2 ¶ 7. Schweitzer has conceded this point both by failing to timely or properly respond to Northland’s Statement of Material Facts, and also by failing to timely respond to Northland’s Requests for Admissions, which included a request to admit that Schweitzer had no evidence that the debt was a consumer debt. DE 42-4 at 4; see also Fed. R. Civ. P. 36(a)(3) (“A matter is admitted unless, within 30 days after being served, the party … serves … a written answer or objection. …”). Because the FDCPA requires that a plaintiff prove that he was the target of collection activity arising from a consumer debt (see 15 U.S.C. § 1692a(5)), and Schweitzer has failed to provide any record evidence whatsoever that Northland called him in connection with a consumer debt, Northland is entitled to summary judgment on Schweitzer’s FDCPA claim against it. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993).

Turning to the auto dialed calls (TCPA), the court said Plaintiff gave permission to Citibank (the original creditor) and the debt collection calls to the Plaintiff’s residential line are not covered by the residential line portion of the TCPA. I think the Plaintiff argues this but failed to do so in time so the court held all of this was admitted.

Schweitzer provided his telephone number to Citibank when he applied for a credit card. DE 40-2 ¶¶ 2-4. Schweitzer thus consented to receive calls from Citibank about the resulting credit-card debt. See 2008 FCC Ruling, 23 F.C.C.R. at 564. Because Schweitzer consented to receive these calls from Citibank, his TCPA claim based upon the alleged debt-collection calls fails as to Citibank as a matter of law. See 47 U.S.C. § 227(b)(1)(B).

Schweitzer’s TCPA claim also fails with respect to all Defendants because their debt-collection calls do not fall within the scope of the TCPA’s prohibitions. Section 227(b)(1)(B) prohibits certain calls to residential telephone lines. However, some types of calls are excluded from the coverage of Section 227(b)(1)(B) by FCC rules or orders. See id. § 227(b)(2)(B). Among those excluded calls are debt-collection calls. 47 C.F.R. § 64.1200(a)(3)(iii); Meadows v. Franklin Collection Serv., Inc., 414 F. App’x 230, 235 (11th Cir. 2011) (per curiam). Because the telephone calls at issue in this case were debt-collection calls placed to Schweitzer’s residential telephone number,[1] they are excluded from the scope of the TCPA by the FCC, and cannot support a TCPA claim.

The biggest take home lesson from this is you must respond to deadlines in federal court or you lose.

If you have questions about the TCPA and you live in Alabama, give us a call at 205-879-2447 or you can learn more about the TCPA on this blog or on our main consumer protection website.

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