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Thomas Davis and Guadalupe Davis v. Pioneer Credit Recovery

January 3, 2012

THOMAS DAVIS AND GUADALUPE DAVIS, PLAINTIFFS,
v.
PIONEER CREDIT RECOVERY, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

I. INTRODUCTION

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT

On March 8, 2011, Plaintiffs Thomas Davis and Guadalupe Davis filed a complaint alleging that Defendant Pioneer Credit Recovery, Inc. violated certain provisions of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and California's Rosenthal Act, Cal. Civil Code § 1788 et seq. ("Rosenthal Act"). On April 1, 2011, Defendant filed an Answer. The parties filed Statements of Consent to proceed before this Magistrate Judge pursuant to 28 U.S.C. § 636(c).

On September 9, 2011, Defendant filed a Motion for Summary Judgment ("MSJ"). On October 4, 2011, Plaintiffs filed an Opposition. On October 11, 2011, Defendant filed a Reply.

On October 25, 2011, the Court ordered the parties to submit further briefing. On November 8, 2011, Defendant filed a Supplemental Reply. On November 22, 2011, Plaintiffs filed a Sur-Reply.

The matter is now ready for decision. For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED.

II. PLAINTIFFS' COMPLAINT

Plaintiffs allege the following in the Complaint:

A. Factual Allegations

Plaintiff Thomas Davis ("T. Davis") incurred a financial obligation of $22,000 (the "Debt") to Sallie Mae (the "Creditor"). (Complaint ¶ 9.) The Debt was purchased, assigned or transferred to Defendant for collection, or Defendant was employed by the Creditor to collect the Debt. (Id. ¶ 11.)

Defendant, through its employees, engaged in the following illegal tactics in order to collect the Debt: placed calls to Plaintiff*fn1 three times a day up to five days a week for several weeks; used deceptive tactics and tried to collect a debt that had been discharged in a bankruptcy; called Plaintiff's place of employment on three separate occasions, despite being told to stop; threatened Plaintiff with garnishment of his wages, but no such action has taken place; threatened Plaintiff with legal action, but no such action has taken place; threatened Plaintiff with a lien on his Social Security; refused to repeat their names when asked to identify themselves; failed to identify themselves when speaking with Plaintiffs and did not include a warning stating that the call was an attempt to collect a debt; and continued calling after Plaintiff sent a cease and desist letter. (Complaint ¶¶13-21.)

B. FDCPA Violations

Based on the foregoing actions, Plaintiffs allege that Defendant violated the FDCPA, as follows:

a. informing a third party of Plaintiff's debt (15 U.S.C. § 1692(b));

b. contacting third parties regarding Plaintiff's debt (15 U.S.C. § 1692b(3));

c. contacting Plaintiff post cease and desist notification (15 U.S.C. § 1692c(c));

d. employing false and deceptive means to collect a debt (15 U.S.C. § 1692e(10));

e. contacting Plaintiff at a place and time known to be inconvenient (15 U.S.C. § 1692c(a)(1));

f. contacting Plaintiff at his place of employment with knowledge such communication was prohibited (15 U.S.C. § 1692c(a)(1));

g. using profane and abusive language (15 U.S.C. § 1692d(2));

h. causing the phone to ring repeatedly and engaging Plaintiff in telephone conversations with intent to annoy and harass (15 U.S.C. § 1692d(5));

i. failing to disclose the identity of the debt collection agency (15 U.S.C. § 1692d(6));

j. threatening wage garnishment (15 U.S.C. § 1692e(4));

k. threatening to take legal action without actually intending to do so (15 U.S.C. § 1692e(5));

l. failing to inform the consumer that the communication was one seeking to collect a debt (15 ...


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