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Cokeley v. Midland Credit Management, Inc.

United States District Court, D. Kansas

October 21, 2014

HOLLY COKELEY, Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC., Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiff Holly Cokeley asserts claims against defendant Midland Credit Management, Inc. under the Fair Debt Collection Practices Act ("FDCPA" or "the Act"), 15 U.S.C. ยงยง 1692 et seq. This matter comes before the Court on defendant's motion for summary judgment (Doc. # 23). For the reasons set forth below, the Court grants the motion, and defendant is awarded summary judgment on plaintiff's claims in this case.

I. Facts[1]

On August 28, 2013, defendant purchased an account on which plaintiff had defaulted. On September 7, 2013, a representative of defendant telephoned and spoke to plaintiff about the account. The call was recorded by defendant, and the transcript of the entire call reads as follows ("P" refers to plaintiff; "D" refers to defendant's representative):

D: Hello.
P: Hello.
D: Hi. Holly?
P: Yeah.
D: Ms. Cokeley? I'm talking to Holly Cokeley?
P: Yes.
D: Hi, ma'am. This call may be recorded or monitored. Ms. Cokeley, my name is [name of representative]. I'm your account manager from Midland Credit Management, a debt collection company, and it's an attempt to collect a debt. Any information obtained will be used for that purpose. I'm calling you in regards to a potential lawsuit which you might have to face soon for your Paypal Smart Connect credit card from GE Capital Retail Bank in which the balance is $747.71. And right now your account is in prelegal status due to nonpayments on the account, and I'm giving you a call so that we can go ahead and work out some sort of monthly payment or a settlement on the account and help you avoid a possible lawsuit on the account. You tell me how -
P: You're going to sue me?
D: I'm sorry?
P: You're going to sue me?
D: Ma'am, I'm giving you the information, right, for I'm giving you a call -
P: I'm asking a question. Are you going to sue me or not?
D: Ma'am, we are here to - I'm giving you a call for a possible lawsuit on the account, right?
P: So you are or you are not going to sue me?
D: Because -
P: I'm not going to pay it. I just need to know if you're going to sue me or not.
D: You are not going to pay that? You're going to say that?
P: Right. I don't have the money to pay it. So I just need to know if you're going to sue me or not.
D: I'm not sure. It might happen. I'm not sure.
P: Okay. Thank you.

Defendant then sent plaintiff written correspondence, titled "NOTICE OF NEW OWNERSHIP AND PRE-LEGAL REVIEW, " dated September 8, 2013. The notice stated that plaintiff's account had been sold and that defendant would be collecting on that account, and it included a payment due date of October 23, 2013. The notice included the following statements:

Midland Credit Management, Inc. is considering forwarding this account to an attorney in your state for possible litigation. However, such forwarding will not occur until after the expiration of the time period described on the back of the letter. Upon receipt of this notice, please call to discuss your options.
If we don't hear from you or receive payment by 10-23-2013, we may proceed with forwarding this account to any attorney.
What do you need to do to stop this process from continuing?
1) Mail in $300.00 and call to set up your remaining payments.
2) Call us today to see how to qualify for discounts and payment plans.
LET U.S. HELP YOU! If the account goes to any attorney, our flexible options may no longer be available to you. There still is an opportunity to make arrangements with us. We encourage you to call us today: (800)...

The notice also listed, among the "Benefits of Paying, " the following: "This may be your last chance to work with us before the account goes to an attorney."

On September 27, 2013, a representative for defendant telephoned plaintiff, but the call was not answered, and the representative did not leave a message. Later that day, plaintiff telephoned ...


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