United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
Plaintiff Cassandra Little has brought the present action alleging that Portfolio Recovery Associates (PRA), a debt collection agency, violated the Fair Debt Collection Practices Act (FDCPA) in its communications with her. The sole remaining claim in the action is Little's contention that PRA violated FDCPA Section 1692d(5) by engaging in communications that were made with an intent to annoy, abuse, or harass.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The facts are uncontroverted. Little incurred an obligation on a GRCB/Walmart credit card and defaulted on her payments. PRA acquired the account on January 31, 2012.
PRA telephoned Little on March 2, 2012. During that call, which was recorded, Little did not tell PRA that she could not or would not pay, and did not ask PRA to stop calling.
PRA telephoned Little on March 10, 2012. Little said she was unemployed and disabled, and that she "can't make payment today, " and the following conversation occurred:
PRA: Okay, when will you be able to, ma'am, so I can get you set up with a hardship arrangement and go ahead and remove your interest because it is accruing at a 10% interest rate?
Little: I can't pay any more than $25 a month.
PRA: No more then, you said $25 a month?...
PRA: Do you know where to send the payment in at, ma'am?
PRA: Do you know where to send the payment in the month, where to ...