United States District Court, D. Minnesota
Thomas J. Lyons, Jr., Esq., Consumer Justice Center P.A., counsel for Plaintiff.
Derrick N. Weber, Esq., and Jennifer M. Zwilling, Esq., Messerli & Kramer, P.A., counsel for Defendant.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK, District Judge.
This matter is before the Court on a Motion for Summary Judgment brought by Defendant Messerli & Kramer, P.A. ("Defendant") (Doc. No. 23), and a Motion for Partial Summary Judgment brought by Plaintiff Rebecca Taufen ("Plaintiff") (Doc. No. 53.) For the reasons set forth below, the Court denies Plaintiff's motion and grants in part and denies in part Defendant's motion.
The facts of this case were previously set forth in the Court's March 14, 2013 Order granting in part and denying in part Defendant's motion to dismiss. (Doc. No. 17.) The Court briefly summarizes and supplements the relevant facts below.
Plaintiff incurred consumer debt with Capital One Bank ("Capital One"). (Doc. No. 48, Second Am. Compl. ¶ 6.) Plaintiff retained a debt consolidation law firm, Macey, Aleman, Hyslip & Searns (the "MAHS law firm"), to represent her with respect to Capital One's claim for the alleged debt. ( Id. ¶ 8.) The MAHS law firm sent Capital One letters of representation on June 10, 2011 and July 27, 2011. ( Id. ¶ 9; Doc. No. 31 ("Lyons, Jr. Decl.") ¶ 2, Ex. 1 ("Cunningham Decl.") ¶ 8.) Plaintiff requested in writing that Capital One "cease and desist" all communications with her. (Cunningham Decl. ¶ 8.)
Sometime prior to January 12, 2012, Capital One transferred or assigned the alleged debt to NCO Financial Systems, Inc. ("NCO") for collection. (Second Am. Compl. ¶ 10; Cunningham Decl. ¶ 12.) At the time, Capital One provided NCO with all account information related to Plaintiff's Capital One account (the "Account"), including the fact that Plaintiff's Account contained the code "C070127A." (Second Am. Compl. ¶ 11; Cunningham Decl. ¶ 15.) Plaintiff asserts that this code is assigned by NCO and is recognized by firms to mean the case has been classified as a "cease and desist." (Second Am. Comp. ¶ 11; Cunningham Decl. ¶ 15.)
NCO placed the Account with Defendant to collect. (Cunningham Decl. ¶ 16.) Defendant received Plaintiff's Account on January 16, 2012. (Doc. No. 28 ("Zwilling Decl.") ¶¶ 4-5 & Ex. 1.) Plaintiff alleges that NCO forwarded all account information to Defendant. (Second Am. Compl. ¶ 12.)
On January 17, 2012, Defendant sent a collection letter to Plaintiff. ( Id. ¶ 13.) On February 2, 2012, Plaintiff sent Defendant a letter advising, in part, that if "any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit." (Zwilling Decl. ¶ 6, Ex. 2.) On February 7, 2012, Defendant sent another collection letter to Plaintiff. (Second Am. Compl. ¶ 17; Zwilling Decl. ¶ 7, Ex. 3.)
On January 18, 2012 and January 24, 2012, Defendant contacted Plaintiff via telephone. (Zwilling Decl. ¶¶ 8-9 & Ex. 4.) Plaintiff originally alleged that she attempted to advise Defendant's collection agent that she was represented by an attorney while on the phone, but that the agent cut her off, said "I don't want to hear about your attorney, " and continued to demand payment. (Doc. No. 15, Am. Compl. ¶¶ 16-17.) Those allegations are not in the Second Amended Complaint. In addition, the recordings of the two phone conversations reveal that Plaintiff did not inform Defendant that she was represented by an attorney or that Defendant said, "I don't want to hear about your attorney." (Zwilling Decl. ¶ 8, Ex. 4.)
The content of the January 18, 2012 and January 24, 2012 phone calls is transcribed as follows:
[January 18, 2012]
Defendant: Yea, is Rebecca around?
Plaintiff: I'm sorry?
Defendant: I said is Rebecca around?
Plaintiff: Yea, this is.
Defendant: Yea, this is Chris calling from Messerli & Kramer, the law firm for Capital One. And we're calling to see if we are going to be able to resolve this voluntarily.
Plaintiff: This was all turned over and I was doing... working with a debt consolidation.
Defendant: Well, obviously they didn't do a very good job because it ended up in our office.
Plaintiff: Well, I guess I'll have to contact them and see what is going on.
Defendant: So, you want me to let the attorneys know you are not interested in resolving this voluntarily then?
Plaintiff: Not right at the moment. How much is owing?
Defendant: Right now it is $3, 554.19.
Plaintiff: And that's the total?
Defendant: Um hum.
Plaintiff: Ok. I'll have to get ahold of them. What's your number?
(Zwilling Decl. ¶ 9, ...