United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
This matter is pending for consideration of Defendant Kentucky Accounts Service, LLC's ("KAS") unopposed motion for summary judgment. [Record No. 21] KAS seeks summary judgment regarding claims alleging violations of the Fair Debt Collection Practices Act ("FDCPA") under 15 U.S.C § 1692e(3) and §1692e(5). There are no material issues of fact regarding these claims and KAS is entitled to judgment as a matter of law. However, the plaintiff has alleged violations of six different statutory sections of the FDCPA. Because the defendant has not addressed the remaining four claims in its motion, partial summary judgment will be granted and the plaintiff's alleged violations of 15 U.S.C. §§ 1692e(4), 1692e(8), 1692e(10), and 1692g will remain for trial.
On November 17, 2012, Plaintiff Ryan Medley enrolled in a tuition payment plan contract with Emergency Medical Training Professionals ("EMTP"). [Record No. 21-2] The total amount owed under the plan was $4, 500.00, to be paid in eight installments over a seven month period. [ Id. ] The plaintiff failed to make any payments on the contract. On or about January 15, 2013, the defendant began attempting to collect the debt. [Record No. 21-1, p. 1] On January 28, 2013, the plaintiff sent the defendant a letter disputing the alleged debt. [Record No. 18, p. 2 ¶ 9]
The claims at issue derive from two letters sent by the defendant. On April 22, 2013, the defendant sent a letter stating that the plaintiff failed to contact the defendant within seven days, "will indicate that you prefer Kentucky Accounts Service to take the appropriate action and move the collection process to the attention of our legal department." [Record No. 21-3] Further, on August 6, 2013, the defendant sent another letter to the plaintiff indicating that "[w]hen authorization [to start legal action] is granted, our attorney will ask the court for judgment and once obtained, we may also order garnishment of your wages, attachment, or levies on your property(s)." [Record No. 21-4]
On August 6, 2013, KAS was assigned the $6, 176.25 balance due on the debt from EMTP. [Record No. 21-7] On September 4, 2013, attorney Kyle R. Salyer, on behalf of the plaintiff, sent a letter to KAS advising it of alleged violations of the FDCPA resulting from its communications with the plaintiff. [Record No. 21-6] Thereafter, employees of KAS were instructed to make no further collection efforts and communication ceased with the plaintiff. [Record No. 21-5, p. 1]
On October 28, 2013, the plaintiff brought the current action. [Record No. 1] He alleges that KAS violated the FDCPA through its communications regarding collection of the debt. [Record No. 18, pp. 2-4] Specifically, the plaintiff maintains that KAS violated the FDCPA by: (i) falsely representing or implying that the defendant's employee was an attorney or was communicating on behalf of an attorney in violation of 15 U.S.C. § 1692e(3) and (ii) threatening to take action that could not be legally taken or that was not intended to be taken, in violation of 15 U.S.C. § 1692e(5). [Record No. 18, p. 3]
Summary judgment is appropriate when "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." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not "genuine" unless a reasonable jury could return a verdict for the non-moving party. That is, the determination must be "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see also Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008). In deciding whether to grant summary judgment, the Court views all the facts and inferences drawn from the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
However, the non-moving party cannot avoid summary judgment merely by resting on the pleadings. Celotex, 477 U.S. at 324. Instead, it must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587. In other words, "the nonmoving party must present significant probative evidence' to show that there is [more than] some metaphysical doubt as to the material facts.'" Dixon v. Gonzalez, 481 F.3d 324, 330 (6th. Cir. 2007) (citing Moore v. Phillip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993)). It has "an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact." In re Morris, 260 F.3d 654, 665 (6th Cir. 2001). Thus, where the record, taken as a whole, cannot lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 586-87. As outlined above, the plaintiff has not disputed the facts outlined in KAS's motion.
The plaintiff argues that two violations of the FDCPA occurred as a result of the collection letters sent by the defendant: specifically, violations of 15 U.S.C. §§ 1692e(3) and 1692e(5). [Record No. 21-1, pp. 3-5] The FDCPA prohibits the use of "false, deceptive, or misleading representation or means in connection with the collection of any debt" and the "collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligations) unless such amount is expressly authorized by the agreement creating the debt or permitted by law." 15 U.S.C. §§ 1692e, f(1). Where a plaintiff brings claims under the FDCPA, the claims are tested under the "least sophisticated consumer" standard; that is, "whether the least sophisticated consumer would be misled by the defendant's actions." Wallace v. Wash. Mut. Bank, F.A., 683 F.3d 323, 326-27 (6th Cir. 2012) (internal quotation marks omitted). The purpose of the FDCPA is to protect consumers from abusive, deceptive, and unfair debt collection practices. 15 U.S.C. § 1692 et seq. The abusive debt collection practices which the FDCPA seeks to remedy includes "obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a ...