United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
JOSEPH H. McKINLEY, Jr., Chief District Judge.
This matter is before the Court on a motion by Plaintiff, Arthur Odom,  for summary judgment. [DN 24]. Also, before the Court are motions by Defendant, GLA Collection Co. ("GLA"), for partial summary judgment [DN 25] and to file a sur-reply [DN 30]. For the reasons that follow, Plaintiff Odom's Motion for Summary Judgement is DENIED. And, Defendant's Motion for Partial Summary Judgment and Motion to File a Sur-Reply are DENIED.
This action arises out of collection letters sent to Arthur Odom and Amie Odom on November 21, 2013 and October 29, 2013, respectively. The letter to Arthur Odom from GLA involved the collection of a debt for GLA Account number XXXXXXXX. Similarly, the letter to Aimee Odom from GLA concerned debt associated with GLA Account numbers XXXXXXXX and 11183218. On December 10, 2013, GLA received an envelope sent by certified mail. [Ex. D - Proof of Service, DN 24-6]. There is a factual dispute as to what exactly the envelope contained. Arthur Odom claims that the envelope had both a letter from him ("First Dispute Letter") and from Amie Odom disputing the debt and requesting that GLA verify the debt in question. [Ex. E - Odom Aff., DN 24-7, at ¶¶ 3-7]; [Ex. C-11-27-13 Dispute Letter]. According to GLA, it only received a dispute letter from Amie Odom concerning GLA Account numbers XXXXXXXX and 11183218, not one from Arthur Odom. [Ex. 1-Aff. of Patrick Lynch, DN 25-2, at ¶ 14-15]. It is undisputed that Arthur Odom continued to receive phone calls from GLA concerning Account number XXXXXXXX after GLA received the December 10, 2013 envelope. [Ex. B - GLA Call Log, DN 24-4].
On February 10, 2014, Arthur Odom sent a second dispute letter ("Second Dispute Letter") requesting verification of his debt. [Ex. SJ Ed F 2-10-14 Dispute Letter, DN 20-10]. The proof of service was signed for on February 27, 2014. [Proof of Service, DN 24-12]. Arthur Odom alleges that he received two more phone calls from GLA on February 28, 2014 and March 5, 2014. [Ex. B - GLA Call Log, DN 24-4, at 3]. GLA's records show that it processed Arthur Odom's letter on March 5, 2014. [Ex. 1C - Timeline for Arthur's Account number XXXXXXXX, DN 25-5]. GLA's log for Arthur Odom also shows that it closed its collection activities regarding his account on March 7. Id.
II. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence... of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. It is against this standard the Court reviews the following facts.
Plaintiff Arthur Odom seeks relief under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., which prohibits debt collectors from engaging in abusive, deceptive, and unfair collection practices. Specifically, Plaintiff moves for summary judgment on alleged violations of 15 U.S.C. § 1692c(c) and § 1692g(b). Defendant GLA argues that the Court should deny Plaintiff Arthur Odom's motion for summary judgment and grant its motion as to its alleged violation of 15 U.S.C. § 1692c(c). Because this case involves crossmotions for summary judgment over the same set of facts, the Court will analyze the motions simultaneously but will apply the proper burden shifting for each of the moving parties.
A. Arthur Odom's First Dispute Letter
To state a claim for relief under the FDCPA, the plaintiff must allege sufficient facts to show that: (i) the plaintiff is a "consumer" under the FDCPA; (ii) the "debt" arises out of a transaction, the purpose of which is "primarily... personal, family or household"; (iii) the defendant is a "debt collector" under the FDCPA; and (iv) the defendant violated the FDCPA's prohibitions against specific forms of "debt collection communication and/or activity." Wallace v. Wash. Mutual Bank, F.A., 683 F.3d 323, 326 (6th Cir.2012). GLA does not dispute that Plaintiff has established the first three elements. This leaves only the fourth element contested by the parties.
It is undisputed that GLA received an envelope by certified mail on December 10, 2013. The only issue is whether that envelope contained Arthur Odom's letter dated November 27, 2013. In addition to a copy of the letter [Ex. C-11-27-13 Dispute Letter, DN 24-5], Arthur Odom provides an affidavit attesting to the fact that he placed the First Dispute Letter in the envelope with Amie Odom's letter. To rebut Arthur Odom's claim, GLA offers an affidavit from Patrick Lynch, Director of Marketing for GLA, which avers that GLA never received Arthur Odom's first letter. Also, in support of its position, GLA asks the Court to consider the fact that GLA quickly processed Amie Odom's letter and ceased communication with her concerning Account numbers XXXXXXXX and 11183218. In other words, GLA argues that its compliance as to Amie Odom's account demonstrates that it would have similarly ceased communication with Arthur Odom if it had received a dispute letter from him.
As the first moving party in the cross-motions, Plaintiff argues that GLA fails to properly rebut his evidence for two reasons. First, Plaintiff argues that Mr. Lynch's affidavit and accompanying documentation of Arthur Odom's account fails to constitute admissible evidence, and thus, it must be excluded in considering summary judgment. See Fed.R.Civ.P. 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."). Although Plaintiff acknowledges that Fed.R.Evid. 803(7) permits a party to introduce evidence to show the absence of a record that is kept in the regular course of business, he argues that Lynch's "affidavit does not establish that GLA's regularly recorded business records-that were recorded on or about December 10, 2013- provide, state, or note that GLA did not receive Mr. Odom's November 27th letter on December 10, 2013." [Pl.'s Resp. to Def. GLA's Cross Mot. for Summ. J., DN 27, at 4]. Simply put, Plaintiff believes that GLA should have recorded the fact that it did not receive Arthur Odom's first letter. In furtherance of Plaintiff's position, he relies on cases from the Second Circuit; however, those cases deal with the situation in which the addressee of a letter denies ever receiving a letter. See Isaacson v. New York Organ Donor Network, 405 Fed.Appx. 552, 553 (2d Cir. 2011) ("There is a presumption in this circuit that a mailed document is received three days after its mailing.... This ...