Opinion
Civil 3:20-CV-403
06-12-2023
JEFFREY SLAVISH, Plaintiff, v. I.C. SYSTEMS, INC., Defendant.
Mariani, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Introduction
Oftentimes in litigation the fact that an article was mailed to a party, but never returned as undeliverable, has legal significance for a claim or defense. Moreover, in such cases, when the undisputed evidence establishes that a letter was mailed to its intended recipient but never returned summary judgment may be appropriate.
So it is here. This is a Fair Debt Collections Practices Act (FDCPA) lawsuit, 15 U.S.C. § 1692, where the crucial issue is whether the defendant caused a proper initial notice to be mailed to the plaintiff's address. For his part, the plaintiff, Jeffrey Slavish, insists that he never received such an initial written notice, but the defendant, I.C. Systems, Inc., provides a declaration from its in-house counsel along with supporting documentation which indicates that the letter was sent to Mr. Slavish's last known address and was not returned as undeliverable.
Based upon this evidence, I.C. Systems has filed a motion for summary judgment, (Doc. 13), which argues that this evidence establishes its compliance with the notice requirements of the FDCPA as a matter of law. While Slavish endeavors in a number of ways to cast doubt upon this assertion, in the final analysis these efforts-while energetic-are not persuasive. Therefore, we recommend that this motion for summary judgment be granted.
II. Factual Background and Procedural History
On March 6, 2020, Jeffrey Slavish filed this complaint, alleging that I.C. Systems had violated the FDCPA in a number of ways when attempting to collect a debt allegedly owed by Slavish to a third party. (Doc. 1). While Slavish's complaint was initially cast broadly, the plaintiff has now abandoned all of his claims, with one exception. (Doc. 19, at 2).
Specifically, Slavish alleges that on or about March 9, 2019, I.C. Systems sent him an initial communication by email regarding an allegedly overdue account that Slavish had with Verizon. (Doc. 1, ¶ 8). Slavish characterizes this email as the initial communication he had with I.C. Sytems concerning this debt and avers that “[t]he email did not contain the mandatory debt validation notice required under 15 U.S.C. § 1692g, et seq” (Id., ¶ 13). Section 1692g prescribes the form of notice that must be provided to a debtor at the outset of the debt collection process and provides that:
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless
the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.15 U.S.C. § 1692g
Thus, the plaintiff's allegation that I.C. Systems' March 9, 2019 email was its initial communication with Slavish and this initial communication failed to contain the required statutory notice, forms the gravamen of the sole remaining claim in this case. On this score, Slavish's contention that I.C. Systems violated § 1692g rests upon the factual premise that the March 9 email was, in fact, the defendant's initial communication with the plaintiff.
It is this factual premise which I.C. Systems challenges in its motion for summary judgment. (Doc. 13). I.C. Systems alleges that Slavish's debt was placed with it for collections on February 20, 2019. (Doc. 13-1, ¶ 8). According to an affidavit submitted by the in- house counsel for I.C. Systems, Michelle Dove:
Based on a review of the account notes maintained by ICS, Plaintiff's account was placed with ICS on February 20, 2019. ICS sent a Validation Letter to Plaintiff on February 25, 2019, to the address provided to ICS by Verizon, the creditor of the debt. This letter was not returned as undeliverable. ICS then sent an email to Plaintiff, at his email address, jeffslav1@xxx.xxx,1 on March 8, 2020. The email was sent to the email address that was provided to ICS by Verizon. It is ICS' belief that Plaintiff provided this email address to Verizon in order to receive communications from Verizon, Verizon's agents, and others employed by Verizon. The email was only addressed to Plaintiff and was intended to be read only by Plaintiff.(Id., ¶ 8).
Ms. Dove's affidavit states that the email was dated on March 8, 2020, but the accompanying business records indicate that the date of the email was on or about March 8, 2019. We do not regard this discrepancy as material to our resolution of the instant motion.
Thus, these account records indicate that the March 9, 2019 email was not the first communication sent to Slavish. Quite the contrary, these business records indicate that an initial letter, dated February 25, 2019, was mailed to Slavish at his reported address. (Doc. 13-1; Ex. C). This letter, a pdf copy of which was retained by I.C. Systems, contained the legally mandated form of notice called for by § 1692g.
The declaration of in-house counsel, Michelle Dove, also provided a description of the provenance and authenticity of these account records. The account notes, which form the basis for in-house counsel's attestation regarding this earlier mailing sent to Slavish were fully compliant with the FDCPA, are described in the following terms:
These records were made, in accordance with the regular practice of ICS to make this type of record, at or near the time of each act, event, condition, opinion, or diagnosis set forth. Furthermore, these records were made, and it is the regular practice of ICS to make this type of record, by, or from information transmitted by, persons with knowledge of the matters set forth. These records were kept, and it is the regular practice of ICS to keep this type of record, in the course of regularly conducted business activity.(Id., ¶ 5; Ex. A).
Based upon this evidence, I.C. Systems contends that there is no genuine issue of material fact regarding whether it sent a notice which complied with the FDCPA to Slavish in its initial communications to him regarding this debt, its February 25, 2019 letter.
For his part, Slavish disputes this contention by advancing a twofold argument. First, Slavish attests that the first communication he received from I.C. Systems was the March 9, 2019 email. (Doc. 19-1). Thus, Slavish denies having received the earlier February 25, 2019 letter which I.C. Systems' records indicate was mailed to him. Slavish also asserts that in-house counsel lacked sufficient knowledge to attest to the mailing of the February 25, 2019 letter. However, a copy of the deposition of I.C. Systems' in-house counsel indicates that Ms. Dove testified that in the ordinary course of business I.C. System contacted that company's mailing vendor, PCI, and requested that an initial letter be mailed out to a debtor. This mailing vendor then provided the defendant with a notice of when a letter was mailed out, along with a pdf copy of the letter that was actually sent out for I.C. Systems' files. Furthermore, if the outgoing mail was returned, in the normal course of business I.C. Systems updated the account record to reflect that the mail was not delivered. In this case, Ms. Dove testified that I.C. Systems' accounts records showed that in Slavish's case the letter was requested and mailed out on February 25, 2019. These records also included a pdf copy of the letter, which contained the statutory form of notice required by law. Moreover, there was no notation in Slavish's account records that this correspondence was returned as undeliverable. (Id.)
For his part, Slavish's counsel attempted to undermine this testimony, which was consistent with in-house counsel's declaration, by questioning counsel regarding the granular details of the mailing of the February 25, 2019 letter. For example, counsel was questioned concerning the form of postage used, how the letter was physically delivered for mailing, who by name was involved in the mailing, and whether I.C. Systems received an itemized bill by name for each letter mailed. (Id.) While I.C. Systems' counsel could not address many of these incremental details, the gist of her testimony remained unchanged and unchallenged: Defendant's records disclose that after it opened an account for Slavish it contracted to have a letter with the proper form of notice sent to Slavish. I.C. Systems' records contained a pdf copy of that letter, along with a notation confirming that it had been mailed, and there is no record that the correspondence was returned as undeliverable.
It is upon these essentially uncontested facts that we consider I.C. Systems' summary judgment motion.
III. Discussion
A. Motion for Summary Judgment - Standard of Review
The defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment 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). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
B. The Defendant's Motion for Summary Judgment Should be Granted.
We believe that this case, and motion for summary judgment, turn on the answer to a single, simple question: Is there a material dispute of fact regarding whether I.C. Systems sent an initial mailed communication to Slavish that comported with the requirements of § 1692g? Because we find that there is no material factual dispute on this score, we recommend that summary judgment be entered in favor of the defendant.
As we have noted, in this case the sufficiency of the proof of a mailing is a pivotal issue. In our increasingly complex, commercial world where mass mailings are routine, it is hardly surprising that proof of a mailing rarely turns on first-hand statements by a mail clerk or processor concerning the mailing of a specific letter. Rather, when the fact of a mailing is material to the resolution of a case, proof of the mailing often turns on reliance upon records maintained in the ordinary course of business documenting mass mailing practices.
Where these business records maintained in the ordinary course of business establish that a mailing took place, and the fact of that mailing is not otherwise directly assailed by some contravening evidence, this issue may be resolved on summary judgment since in this setting there is no dispute as to a material issue of fact. As one court has observed on this score:
A letter properly addressed, stamped and mailed may be presumed to have been received by the addressee in the due course of the mail.” Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1983). “A threshold question for the application of [this] rule is whether there is sufficient evidence that the letter was actually mailed.” Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir. 2007). “Placing letters in the mail may be proved by circumstantial evidence, including customary mailing practices used in the sender's business.”
Kozloff, Inc., 695 F.2d at 944. In this context, courts often look to affidavits, declarations, and statements of corporate representatives to prove that a letter was mailed. E.g., Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909, 919 (N.D. Tex. 2000); Rodriguez v. U.S. Bank, N.A., SA-12-CV-345-XR, 2013 WL 5173125, at *2 (W.D. Tex. Sept. 12, 2013) (“[I]t is well settled that declarations made by corporate representatives are sufficient to prove a corporate act, such as mailing notice by certified mail.”).Cash v. AXA Equitable Life Ins. Co., 229 F.Supp.3d 542, 548 (W.D. Tex. 2017).
In this regard, it is well-settled that: “[P]roof of a business system of preparing and mailing letters, and compliance with such a custom in the particular instance, is sufficient to establish proof of mailing.” Donahue v. Fed. Nat'l Mortg. Ass'n, 980 F.3d 204, 208 (1st Cir. 2020) (quoting Simpson v. Jefferson Standard Life Ins. Co., 465 F.2d 1320, 1324 (6th Cir. 1972)). Applying these benchmarks, courts have frequently found that properly documented affidavits describing proof of mailing based upon regularly maintained business records are sufficient at the summary judgment stage of litigation to establish undisputed proof of the fact of a mailing. See e.g., Hawkes v. BSI Fin., Inc., 444 F.Supp.3d 260, 267 (D. Mass. 2020); Zimmer Paper Prod., Inc. v. Berger & Montague, P.C., 586 F.Supp. 1555, 1559 (E.D. Pa. 1984), affd, 758 F.2d 86 (3d Cir. 1985).
This principle has been applied to FDCPA lawsuits like the instant case where it is alleged that there was a failure by a debt collector to mail the initial notice required by § 1692g. When a debt collector shows through a properly documented affidavit that the letter was sent and not returned as undeliverable, courts have often granted summary judgment on these claims. See Reed v. IC Sys., Inc., No. 3:15-279, 2017 WL 89047, at *5 (W.D. Pa. Jan. 10, 2017); Derricotte v. Pressler & Pressler, LLP, No. CIV.A. 10-1323, 2011 WL 2971540, at *7 (D.N.J. July 19, 2011).
So it is here. In the instant case I.C. Systems has provided an affidavit from its in-house counsel based upon records maintained in the ordinary course of business. Those records reveal that Slavish's debt was turned over to I.C Systems in February of 2019, and I.C. Systems through its mailing vendor issued the written form of notice required by § 1692g on February 25, 2019. I.C. Systems' business records not only contain a notation that this letter was mailed to Slavish's last known address; I.C. Systems has also retained a pdf copy of this out-going correspondence which confirms that the statutory notice was included in this first letter sent to Slavish. Moreover, I.C. Systems' records contain no notation that the letter was returned as undeliverable, something which would have existed if the letter had been returned to the defendant.
This evidence leads us to conclude that I.C. Systems has sufficiently proven that it mailed an initial communication to Slavish which complied with the requirements of § 1692g. Moreover, we find that Slavish's efforts to create a disputed, material issue of fact surrounding this mailing, while imaginative, are not persuasive.
At the outset, Slavish endeavors to cast doubt upon the otherwise undisputed fact of the mailing of this initial communication by denying that he in fact received this letter. This contention fails, however, because it confuses and conflates what the FDCPA requires. While Slavish invites us to consider his allegation that he never received this notice, that is not what the law requires. Instead, it is well settled that:
[S]ection 1692g(a) requires only that a Notice be “sent” by a debt collector. A debt collector need not establish actual receipt by the debtor. Section 1692g(a) explicitly states that a Notice must be sent. “[A] debt collector shall ... send the consumer a written notice....” 15 U.S.C. § 1692g(a) (emphasis added). Nowhere does the statute require receipt of the Notice.
!
Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197, 1201 (9th Cir. 1999) (footnote omitted). See e.g., Reed, 2017 WL 89047, at *5; Derricotte, 2011 WL 2971540, at *7 (D.N.J. July 19, 2011); Webb v. Envision Payment Sols., Inc., No. CIV.A. 10-1414, 2011 WL 2160789, at *4 (W.D. Pa. May 31, 2011); McNally v. Client Servs., Inc., No. CIV.A. 06-1104, 2007 WL 4561152, at *4 (W.D. Pa. Dec. 20, 2007). Therefore, Slavish's subjective complaint that he did not recall receiving this initial notice does not defeat I.C. Systems' summary judgment motion in the face of undisputed evidence showing that the letter was sent to Slavish.
Slavish's assertions that the defense affidavit is inadequate or based upon inadmissible hearsay are also unavailing. In our view, the affidavit of in-house counsel is fully supported by contemporaneous business records which show that a proper notice was mailed to Slavish and was never returned as undeliverable. This is all that the law requires. E.g., Reed, 2017 WL 89047, at *5; Derricotte, 2011 WL 2971540, at *7 (D.N.J. July 19, 2011). Moreover, the account records relied upon in this affidavit plainly fall within the business records exception to the hearsay rule, which permits the introduction of business records into evidence when:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness . . . .Fed. R. Evid. 803(6). In our view, Attorney Dove's affidavit satisfies all of the legal requisites of Rule 803(6), since in-house counsel attests that:
These records were made, in accordance with the regular practice of ICS to make this type of record, at or near the time of each act, event, condition, opinion, or diagnosis set forth. Furthermore, these records were made, and it is the regular practice of ICS to make this type of record, by, or from information transmitted by, persons with knowledge of the matters set forth. These records were kept, and it is the regular practice of ICS to keep this type of record, in the course of regularly conducted business activity.(Doc. 13-1, ¶ 5).
Finally, given that this affidavit meets the requirements of Rule 803(6), the fact that Attorney Dove could not answer some questions regarding some of the incremental, granular details of this mailing-such as the form of postage used, how the letter was physically delivered for mailing, who by name was involved in the mailing, and whether I.C. Systems received an itemized bill by name for each letter mailed-is immaterial. The affidavit establishes the fact of a proper mailing of the initial notice under § 1692g and that fact entitles the defendant to summary judgment on this claim.
Because we have concluded that I.C. Systems is entitled to summary judgment on these substantive grounds we do not find it necessary to foray into the closely contested issue of whether Slavish has standing to pursue this case. Rather, giving Slavish every benefit of the doubt we have assumed that he has established a concrete and particularized injury sufficient to establish standing under Spokeo and its progeny, but nonetheless conclude that his claim fails on its merits as a matter of law.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the defendant's motion for summary judgment. (Doc. 13), be GRANTED.
The parties are hereby placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations, or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or 17 where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.