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Duranseau v. Portfolio Recovery Associates, L.L.C.

United States District Court, D. Minnesota

February 13, 2015

HARVEY DURANSEAU, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, L.L.C., Defendant.

Matthew J. Gilbert, GILBERT LAW OFFICE PLLC; and Charlie R. Alden, ALDEN LAW OFFICES, for plaintiff.

Jennifer M. Robbins and Amira A. ElShareif, ROBINS, KAPLAN, MILLER & CIRESI L.L.P., for defendant.

ORDER

PATRICK J. SCHILTZ, District Judge.

Plaintiff Harvey Duranseau sued defendant Portfolio Recovery Associates, LLC ("PRA"), alleging that PRA violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., violated various Minnesota statutes, and committed various torts when it repeatedly called him to demand that he pay the debt of a "Thomas Duranseau." PRA moved for judgment on the pleadings, and the Court granted the motion in part, narrowing Duranseau's claims to the following: (1) a claim that PRA violated §§ 1692d and 1692d(5) by repeatedly and continuously calling with the intent to annoy, abuse, or harass; (2) a claim that PRA violated §§ 1692d and 1692d(2) and intentionally inflicted emotional distress by using obscene or profane language during a phone call on or about December 28, 2012; and (3) a claim that PRA violated § 1692g(a) by failing to timely send the prescribed written notice after its first communication with Duranseau. ECF No. 43.

Following discovery, both parties moved for summary judgment on Duranseau's remaining claims. ECF Nos. 97, 104. The Court denied the motions, except the Court agreed with PRA that Duranseau's §§ 1692d and 1692d(5) claim was barred by the FDCPA's statute of limitations (§ 1692k(d)) insofar as that claim related to phone calls made more than one year before Duranseau filed this lawsuit. ECF No. 118 at 2. The Court also ordered supplemental briefing on two issues regarding Duranseau's § 1692g(a) claim:

1. Is plaintiff's § 1692g(a) claim barred by the statute of limitations, given that plaintiff swears that defendant's "initial communication" with him about the debt occurred no later than March 25, 2011 ( see ECF No. 105 at ¶¶ 3-4, 7)?
2. Assuming that defendant's "initial communication" with plaintiff about the debt occurred on March 25, 2011, to whom and to what address was defendant obligated to send the "written notice" required by § 1692g(a)?

ECF No. 118 at 2.

After reviewing the supplemental briefs submitted by the parties, ECF Nos. 116, 117, the Court now concludes that neither party is entitled to summary judgment on Duranseau's § 1692g(a) claim. That claim will be tried to a jury, along with Duranseau's two other claims.

I. STANDARD OF REVIEW

Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute over a fact is "material" only if its resolution might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

II. STATUTE OF LIMITATIONS

Section 1692g(a) requires that, "[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, " a debt collector must send a written notice to the consumer identifying the amount of the debt and the name of the creditor to whom the debt is owed and providing specific information about the consumer's rights under the FDCPA. Duranseau's account of PRA's alleged phone calls has been a bit of a moving target, but, according to Duranseau's most recent sworn statement, PRA first called him on March 25, 2011. ECF No. 105 ¶¶ 3-4, 7. Duranseau alleges that PRA violated § 1692g(a) because it failed to send the required notice to him within five days of March 25, 2011.

When it moved for summary judgment on Duranseau's § 1692g(a) claim, PRA did not argue that the claim was barred by the statute of limitations. This puzzled the Court. The FDCPA requires that a claim be brought "within one year from the date on which the violation occurs." § 1692k(d). According to Duranseau, PRA violated § 1692g(a) when it failed to send him the required written notice by March 30, 2011. Thus, it would appear that this alleged violation occurred no later than March 30, 2011. Yet Duranseau did not file suit until April 25, 2013”long after the one-year statute of limitations would seem to have expired. ...


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