United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States District Court.
Boston Portfolio Advisors, Inc. (BPA) claims that one of its
clients' portfolios contained the defaulted loan of
Plaintiff Zachary Taylor and that it placed the debt with
Defendant Weltman, Weinberg & Reis, Co. (WWR) for
servicing. (D.N. 11-1, PageID # 43; D.N. 11-2, PageID # 48;
D.N. 13, PageID # 64; D.N. 15, PageID # 77) Taylor disputed
the debt and claims that WWR contacted him in violation of
the Fair Debt Collection Practices Act (FDCPA). (D.N. 1; D.N.
11-1, PageID # 43; D.N. 13, PageID # 64) BPA seeks summary
judgment, arguing that it cannot be liable under the FDCPA
because it is not a “debt collector.” (D.N. 11-1,
PageID # 45-46) Because there is a genuine dispute of
material fact with respect to whether BPA is a debt
collector, the Court will deny BPA's motion for summary
this is a motion for summary judgment, the evidence is viewed
in the light most favorable to Taylor. Taylor allegedly owed
almost $7, 000 on a loan from creditor PNC Bank, N.A. (D.N.
1, PageID # 3) Defendant BPA is a financial consulting firm
that provides “portfolio management, risk management,
due diligence, litigation and asset valuation services, and
various other credit and capital market solutions.”
(D.N. 11-2, PageID # 48) According to an affidavit from a
Senior Operations Administrator at BPA, “BPA placed Mr.
Taylor's account with [WWR] for collection.” (D.N.
11-2, PageID # 48) WWR sent correspondence and made several
phone calls to Taylor, seeking to collect on the alleged
debt. Taylor disputed the validity of the debt but WWR
continued to contact him. (D.N. 1, PageID # 3-4)
filed suit against WWR and BPA, alleging that the phone calls
violated the FDCPA. (D.N. 11-1, PageID # 43; D.N. 13, PageID
# 64) In response, BPA filed a motion for summary judgment,
arguing that it does not regularly collect or attempt to
collect debts and thus is not a “debt collector”
under the FDCPA. (D.N. 11-1, PageID # 45-46) BPA maintains
that WWR placed the disputed calls and that BPA “made
no attempts to collect” the debt. (Id., PageID
# 46) Taylor acknowledges that BPA did not have “direct
contact” with him. (D.N. 13, PageID # 65) Nevertheless,
Taylor asserts that BPA is a “debt collector”
because it “indirectly sought to collect the debt
through the efforts of WWR.” (Id.)
Alternatively, Taylor contends that BPA is vicariously liable
for WWR's violations of the FDCPA. (D.N. 13)
Court requested supplemental briefing on the issue of the
default status of Taylor's loan at the time it was
assigned to BPA for servicing, which the parties have
provided. (D.N. 19; D.N. 20) Both parties agree that
Taylor's loan was in default when it was acquired by BPA.
(D.N. 19, PageID # 116) However, BPA maintains that
“the default status of Taylor's account is
inconsequential.” (Id., PageID # 117)
grant a motion for summary judgment, the Court 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 identifying the basis for its motion and those portions of
the record that “it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
satisfies this burden, the non-moving party must point to
specific facts demonstrating a genuine issue of fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
considering a motion for summary judgment, the Court must
review the evidence in the light most favorable to the
non-moving party, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986), but “the
judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson,
477 U.S. at 249. The non-moving party must present specific
facts demonstrating that a genuine issue of fact 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).
[FDCPA] imposes civil liability on ‘debt
collectors' for certain prohibited debt collection
practices.” Jerman v. Carlisle, McNellie, Rini,
Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010)
(alterations omitted). In other words, if a party is not a
“debt collector, ” it cannot be liable under the
FDCPA. See id; see also Stamper v. Wilson &
Assocs., P.L.L.C., No. 3:09-CV-270, 2010 WL 1408585, at
*3 (E.D. Tenn. Mar. 31, 2010). Whether a party is a debt
collector is a question of fact. See Schroyer v.
Frankel, 197 F.3d 1170, 1173-77 (6th Cir. 1999).
The FDCPA, in relevant part, defines “debt
any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose
of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly,