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Karp v. Financial Recovery Srvcs, Inc.

United States District Court, Fifth Circuit

December 18, 2013

TERRI KARP,
v.
FINANCIAL RECOVERY SRVCS, INC

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

ANDREW W. AUSTIN, Magistrate Judge.

Before the Court are: Defendant's Rule 56 Motion for Summary Judgment and Memorandum of Law in Support Thereof (Dkt. No. 23) filed October 16, 2013; Plaintiff's Response in Opposition (Dkt. No. 25) filed November 5, 2013; and Defendant's Reply (Dkt. No. 27) filed November 12, 2013. The District Court referred these Motions to the undersigned Magistrate Judge for report and recommendation.

In her Complaint, Plaintiff Terri Karp ("Karp") claims that Defendant Financial Recovery Services, Inc. ("FRS") violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") (Claim I), and Section 392.302(4) of the Texas Finance Code (Claim II) by calling Plaintiff at her place of employment about money she owed a credit card company.

I. Karp's Complaint

Plaintiff Terri Karp ("Karp") resides in Fredericksburg, Texas, and teaches at a private school there. Plaintiff's Exhibit B, Deposition of Terri Karp ("Karp Depo.") at 11. In her Complaint, Karp alleges that FRS contacted her on September 12, 2012, at her place of employment, and that she informed the FRS representative, Cindy Evenstad, that she cannot receive phone calls at work and advised FRS that calls to her place of employment must stop. Complaint at 2. Karp further alleges that on around September 13 or 14, FRS again called her at her place of employment, and Karp again asked FRS to stop calling her at work. Id. at 2-3. Karp alleges that she received another call on September 19, 2012 and she again informed FRS that she was not allowed to receive calls at work. Id. Karp pleads that FRS called her workplace again on September 20, 2012, but she was unable to answer the call. Id. Lastly, Karp pleads that she received another call from FRS at her place of employment, on September 25, 2012, and informed Evanstad that she cannot receive calls at work. Id. Karp alleges that Evanstad informed Karp that she would remove her work number from the file if Karp would meet certain conditions. Id.

Karp alleges that FRS violated the FDCPA by calling Karp at her place of employment when FRS knew or should have known that Karp's employer prohibits such calls. Karp also alleges that FRS's behavior was harassing or annoying as defined by the statute. Karp finally alleges that FRS violated the Texas debt collection statute by making repeated telephone calls to Karp at her place of employment with the intent to harass her.

II. Summary Judgment Standard

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show that there is no genuine issue 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 burden of demonstrating that there is no evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Nat'l Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398, 401 (5th Cir. 2008). If the moving party meets this initial burden, the burden shifts to the nonmovant to set forth specific facts showing the existence of a genuine issue for trial. See Hines v. Henson, 293 F.App'x 261, 262 (5th Cir. 2008) (citing Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir. 2004)). Factual controversies are to be resolved in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." See id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

III. Analysis

A. The FDCPA

Congress enacted the Fair Debt Collection Practices Act "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). The FDCPA prohibits unfair or unconscionable collection methods, conduct which harasses, oppresses or abuses any debtor, and the making of any false, misleading, or deceptive statements in connection with a debt, and it requires that collectors make certain disclosures. 15 U.S.C. §§ 1692d, 1692e, 1692f. The FDCPA applies to "debt collectors, " as defined as "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, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). The FDCPA creates a private cause of action against debt collectors who violate its provisions. See 15 U.S.C. § 1692k.

Karp contends that FRS violated sections 1692c and 1692d of the FDCPA. Section 1692c prohibits a debt collector from communicating "with a consumer in connection with any debt... at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication." 15 U.S.C. § 1692c(a)(3). Section 1692d prohibits a debt collector from "engaging in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d.

B. Summary Judgment Evidence

Defendant FRS offers the following summary judgment evidence, which is undisputed by Karp. Contrary to what Karp alleged in her complaint, the undisputed evidence demonstrates that an FRS representative only spoke with Karp on two occasions - on September 11, 2012, and September 25, 2012.[1] The evidence also demonstrates that what Karp alleged she had told FRS about calling her at work was not in fact what she had said. On September 10, 2012, Karp's First Bankcard Account was placed with FRS for collection. Defendant's Exhibit A, Affidavit of Brian Bowers ("Bowers Aff.") at ¶ 3. On September 11, 2012, at 8:02 a.m. (CST), FRS placed a telephone call to the number it had listed as Plaintiff's place of employment, which is designated in FRS's notes as "09/11/12 08:02 TE/TD" with TE meaning "telephoned place of employment." Id. at ¶ 4. At that time, FRS's collector, Cindy Evenstad spoke with a woman who identified herself as Terri Karp. Karp Depo. at 22:9-25, 23:1-23. The full text of the conversation was as follows:

UNIDENTIFIED SPEAKER: Fredericksburg Christian School.
AGENT CYNTHIA: Terri Karp please.
UNIDENTIFIED SPEAKER: Yes, ma'am, ...

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