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Smith v. Franklin Collection Service

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

August 30, 2018

BRUCE SMITH, Plaintiff,



         In this action, pro se plaintiff Bruce Smith challenges Defendant Franklin Collection Service Inc.'s (“Franklin”) practices concerning Franklin's efforts to collect a debt that Mr. Smith owed AT&T. Mr. Smith asserts two federal claims against Franklin. First, Mr. Smith contends that Franklin violated the Fair Debt Collection Practices Act (“FDCPA”) by failing to adequately verify the debt that he owed AT&T. Second, Mr. Smith contends that Franklin violated the Fair Credit Reporting Act (“FCRA”) by failing to report accurate information concerning the debt to credit reporting agencies.

         Before the court is Franklin's motion for summary judgment. (Doc. 8). The parties have fully briefed the motion. (Docs. 9, 10, 13, 15, 16). Because Mr. Smith has not presented evidence creating a question of fact that Franklin violated the FDCPA or the FCRA, the court WILL GRANT the motion.


         “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). “The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact.” FindWhat Inv'r Grp. v., 658 F.3d 1282, 1307 (11th Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A “material fact” is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite “to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see Anderson, 477 U.S. at 252 (“[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”).

         The court views the evidence in the light most favorable to the non-moving party. Baas v. Fewless, 886 F.3d 1088, 1091 (11th Cir. 2018). The court “may not weigh conflicting evidence or make credibility determinations of its own.” FindWhat Inv'r Grp., 658 F.3d at 1307. “If the record presents disputed issues of fact, the court may not decide them; rather, it must deny the motion and proceed to trial.” Id. at 1307. However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).


         A. Mr. Smith's Challenges to Franklin's Statement of Facts

         In response to Franklin's motion for summary judgment, Mr. Smith challenges a number of Franklin's statements of fact. For example, Mr. Smith disputes the following two statements:

• “AT&T placed an account for collection with Franklin on September 6, 2017” (Doc. 15, p. 7) (citing Doc. 9, p. 4, ¶ 2), and
• “Franklin reported the debt as disputed to credit reporting agencies from the time the Plaintiff disputed that he owed the debt.” (Doc. 15, pp. 7-8) (citing Doc. 9, p. 6, ¶ 7).

         To support these statements, Franklin submitted an affidavit from Sherri Y. McClain, Franklin's Director of Compliance. (See Doc. 9-1, p. 4, ¶ 8; Doc. 9-1, p. 5, ¶ 12). Mr. Smith argues that the court should not accept the factual statements because Franklin did not provide “tangible evidence” to support the statements beyond Ms. McClain's assertions in her affidavit. The court is not persuaded.

         Rule 56 of the Federal Rules of Civil Procedure does not “require that an otherwise admissible affidavit be corroborated by independent evidence.” United States v. Stein, 881 F.3d 853, 858 (11th Cir. 2018). “Rule 56(c) states only that an affidavit must be “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Id. Ms. McClain's affidavit meets these requirements. (See generally Doc. 9-1, pp. 3-6). Therefore, Franklin has properly supported the challenged statements with ...

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