United States District Court, D. Kansas
MICHAEL J. MARTIN, Plaintiff,
KANSAS COUNSELORS, INC., Defendant.
MEMORANDUM AND ORDER
TERESA J. JAMES, Magistrate Judge.
In this removal action, Plaintiff Michael J. Martin asserts claims against Defendant Kansas Counselors, Inc. for violations of the Fair Debt Collection Practices Act ("FDCPA") and the Kansas Consumer Protection Act ("KCPA") arising from Defendant's actions in attempting to collect alleged debts from Plaintiff-debts that he alleges he does not owe but that are owed by another person with the same first and last name. This matter is presently before the Court on Defendant's Motion for Summary Judgment (ECF No. 31). Defendant moves for summary judgment in its favor on Plaintiff's claims, arguing it is undisputed that it did not furnish any information regarding Plaintiff to the credit reporting agencies. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
As discussed below, the motion is granted as to Plaintiff's FDCPA claims. Plaintiff's remaining state law KCPA claims and Plaintiff's request for declaratory judgment with respect to the alleged debts are remanded to Johnson County, Kansas District Court.
The following facts are either uncontroverted or, where controverted, are construed for purposes of this Motion in the light most favorable to Plaintiff, the non-moving party. Immaterial facts and factual averments not properly supported by the record are omitted.
Defendant performs debt collections and attempted to collect alleged debts from Plaintiff within the three years which preceded the filing of this lawsuit.
In June 2010, Plaintiff received dunning or debt collection calls from Defendant. Specifically, on June 24, 2010, Defendant contacted Plaintiff regarding an unpaid medical debt owed to Shawnee Mission Physicians by a "Michael Martin." This unpaid debt had been assigned to Defendant for collections. During the call, in an attempt to verify whether the debt was his, Plaintiff provided Defendant's employee with Plaintiff's personal identification information, including his birthdate, social security number, and address. The information provided by Plaintiff did not match the information in Defendant's file for the debt. Plaintiff alleges that Defendant asked him to pay the disputed debt anyway. Defendant acknowledges that it also contacted Plaintiff by telephone on October 25, 2010, although Plaintiff has not asserted that contact as a basis for his claims.
Plaintiff called the original creditor, Shawnee Mission Physicians, regarding the alleged debt and confirmed that it was not his debt. The creditor's representative told Plaintiff that she would call to have the debt removed from the collection agency or ask them to stop collection activity. She also told Plaintiff that the creditor sent the account to Defendant without any social security number and therefore it would not be reported to the credit reporting agencies.
During telephone calls to Plaintiff in June 2012, Defendant's employees alleged that Plaintiff owed additional debts, including a debt to Emergency Department Physicians for an Ava Martin and a debt owed to Johnson County Wastewater for an El Monte Street address. Plaintiff does not know an Ava Martin and claims that he is not responsible for the Emergency Department Physicians debt. Plaintiff has never resided at the address given for the Johnson County Wastewater alleged debt and claims that he is not responsible for that debt.
On October 4, 2010 and November 16, 2010, Defendant furnished certain information about a "Michael Martin" to the credit reporting system. Along with the name, Defendant also furnished personal identification information, including a birthdate and an address. The birthdate and address furnished were not those of Plaintiff. Defendant did not provide a social security number, middle initial, or phone number for the "Michael Martin" reported to the credit reporting system.
Plaintiff later purchased an investment property, and during the process, discovered that the Shawnee Mission Physicians debt in the amount of $136 appeared on his June 6, 2012 credit report under the entry listing Defendant's name as creditor. Plaintiff states that this same entry also appeared on Plaintiff's second credit report dated October 22, 2012.
After learning of the June 2012 credit report entry, Plaintiff contacted Defendant. Plaintiff was told that Defendant still listed the Shawnee Mission Physicians account under his name, along with three or four additional delinquent accounts, which were now assigned to his social security number, name, and date of birth. Defendant informed Plaintiff of the process Plaintiff could use to directly dispute the credit report entry with Experian, the credit reporting agency.
Plaintiff again contacted creditor Shawnee Mission Physicians, whose representative verified that Defendant had been contacted in October 2010 and instructed to halt collections upon Plaintiff related to this alleged debt.
On October 30, 2012, Plaintiff sent Defendant a letter requesting that the Shawnee Mission Physicians medical debt collection be taken off his Experian credit report. Defendant investigated the dispute and submitted a request to Experian to delete the item.
Plaintiff alleges that his credit score has dropped since 2008, and the only difference since then is Defendant reporting him as having a bad debt. He also alleges that "it became very clear" to him that Defendant had obtained his social security number and applied it to its "Michael Martin" accounts.
Defendant no longer wants to collect the debt allegedly owed to Shawnee Mission Physicians from Plaintiff, but maintains that Plaintiff owes the Emergency Department Physicians and Johnson County Wastewater debts.
Plaintiff filed his Petition for Damages in Johnson County, Kansas District Court on December 27, 2012. Defendant filed its Notice of Removal (ECF No. 1) on January 23, 2013, claiming the Court has original jurisdiction over the action pursuant to 28 U.S.C. § 1131.
II. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." In applying this standard, the Court views the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmoving party. "An issue is genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." "An issue of fact is material' if under the substantive law it is essential to the proper disposition of the claim." When examining the underlying facts of the case, the Court is cognizant that all inferences must be viewed in the light most favorable to the nonmoving party and that it may not make credibility determinations or weigh the evidence.
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet that standard, a moving party that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the moving party need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. In such cases, "[t]he moving party is entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."
If the moving party carries this initial burden, then the nonmovant that would bear the burden of persuasion at trial may not simply "rest upon his or her pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof." To accomplish this, sufficient evidence pertinent to the material issue must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein. Finally, the Court notes that summary judgment is not a "disfavored ...