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Graveling v. Sirote & Permute, P.C.

United States District Court, N.D. Alabama, Southern Division

October 15, 2014

JAMES GRAVELING AND LORI GRAVELING, Plaintiffs,
v.
SIROTE & PERMUTE, P.C., and GINNY RUTLEDGE, Defendants.

MEMORANDUM OF OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

I. INTRODUCTION

The plaintiffs in this lawsuit, James and Lori Graveling ("the Gravelings"), are proceeding pro se. The dispute arises out of a foreclosure action by former defendant (since dismissed from this case) Coastal States Mortgage, Inc. ("Coastal") on a mortgage on the Gravelings' house. (Doc. 12 at 2-3). The only remaining defendants are the law firm of Sirote & Permutt ("Sirote") and Ginny Rutledge ("Ms. Rutledge"), an attorney at Sirote[1] (collectively, "the Defendants").

The Gravelings initiated this action on January 18, 2013, by filing a motion for preliminary injunction. (Doc. 1). After being ordered by the court to do so, they filed an amended complaint. (Doc. 6). They brought six claims: separate counts for fraud against Castle Mortgage Company ("Castle") and against Coastal, a count for wrongful foreclosure against BankUnited, N.A. ("BankUnited"), a count for illegal foreclosure sale auction against Andrew Benefield ("Mr. Benefield"), a count for refusal to cease debt collecting in violation of the Fair Debt Collection Practices Act ("FDCPA") against Coastal, and a count for refusal to cease debt collecting in violation of the FDCPA against Sirote, Rutledge, and Ryan Daugherty ("Mr. Daugherty"). On August 27, 2013, the court granted a motion to dismiss the Gravelings' claims as against Castle, BankUnited, Mr. Benefield, and Mr. Daugherty. (Doc. 63). On December 4, 2013, the court dismissed with prejudice their claims against Coastal for failure to prosecute. (Doc. 82). The Gravelings' only remaining claim is for refusal to cease debt collection activities in violation of the FDCPA against Sirote and Ms. Rutledge.

Pending before the court is the Defendants' Motion for Summary Judgment on all remaining claims, which was filed on July 29, 2014. (Doc. 100). The Gravelings filed a response on August 28, 2014. (Doc. 102). The Defendants then filed a reply to the response on September 11, 2014. (Doc. 106). Accordingly, the Motion is ready for disposition and, for the reasons explained below, is due to be GRANTED.

II. STANDARD

A. Summary Judgment

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to come forward with specific facts showing that there is a genuine issue for trial.'" International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

B. Fair Debt Collection Protection Act

Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors..."15 U.S.C. § 1692(e). The FDCPA both requires and forbids specific conduct by debt collectors. The Act "does not ordinarily require proof of intentional violation and, as a result, is described by some as a strict liability statute." LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (per curiam) (citations omitted). Further, a single violation of the statute is sufficient to establish civil liability. Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2d Cir. 1993) (citing 15 U.S.C. § 1692k).

In order to prevail on an FDCPA claim, a plaintiff must prove that: "(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA." Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360-61 (S.D. Fla. 2000) (quoting Sibley v. Firstcollect, Inc., 913 F.Supp. 469, 470 (M.D. La.1995)).

Following the court's August 27, 2013, memorandum of opinion on the Motions to Dismiss, the only issue left to be decided is the third element: whether the Defendants engaged in an action or omission prohibited by the FDCPA. Three provisions of the FDCPA are relevant for purposes of this analysis under the claims in this case. The first concerns the debt collector's obligations to provide information at the time of the initial communication with a consumer:

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 ...

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