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Marc Elliott v. Gc Services

November 28, 2011

MARC ELLIOTT, PLAINTIFF,
v.
GC SERVICES, LP, DEFENDANT.



ORDER

This cause comes before the Court on Defendant GC Services, LP's ("GCS") Motion for Summary Judgment (Doc. No. 45) as to claims against it for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. § 559.72. Plaintiff, Marc Elliott, filed a response in opposition to the motion. (Doc. No. 50.) For the reasons stated herein, the motion is granted in part and denied in part.

I. Background

The following facts are undisputed: In July, 2009, Elliott purchased a heating and air conditioning system for his house from Sears for $7,900; he made the purchase with a Sears/Citibank card. GCS is a debt collector. On May 5, 2010, after Elliott stopped making payments on the Sears/Citibank card balance, GCS began collection efforts. In addition to its initial written communication with Elliott, GCS called Elliott numerous times and left a number of messages on Elliott's answering machine. The content and number of these calls and messages are in dispute and form the basis of Elliott's case.

On September 7, 2010, Elliott filed a six-count complaint against GCS alleging violations of the FDCPA and the FCCPA. Elliott seeks to recover actual damages, damages for his emotional and/or mental anguish, statutory damages of $1,000, and his attorneys' fees and costs.

II. Standard of Review

Summary judgment is appropriate "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 Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Id. Summary judgment must be entered "against a party who 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 of proof at trial." Johnson v. Bd. of Regents, 263 F.3d 1234, 1243 (11th Cir. 2001) (quotation omitted).

When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affirmative evidence, designate specific facts showing there is a genuine issue for trial. Porter, 461 F.3d at 1320. In determining whether there is a "genuine" issue, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251--52 (1986).

III. Discussion

GCS makes a number of arguments in support of its motion for summary judgment. The Court will address each argument below.

A. Whether Elliott's Unpaid Account Balance Qualifies as a Consumer Debt under the FDCPA and the FCCPA GCS argues that the unpaid balance it tried to collect from Elliott does not fall within the statutory definition of a consumer debt under either the FDCPA or the FCCPA. The FDCPA and the FCCPA both define "debt" as: any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

15 U.S.C. § 1692a(5); Fla. Stat. § 559.55(1). GCS argues that Elliott's FDCPA and FCCPA claims fail because Elliott "is in the trades"*fn1 and did not pay sales tax on the purchase or installation of the central air unit he purchased, and in Florida all consumer retail purchases are subject to sales tax. GCS contends that this fact creates a presumption that the purchase is not an FDCPA or FCCPA consumer debt.

GCS offers no authority in support of this "presumption." Furthermore, Elliott states in his deposition that the heating and air conditioning system he purchased was installed in his home. (Doc. No. 51, Ex. 1, p. 8.) Because the property and services at issue were primarily for Elliott's personal or household purposes, GCS is not entitled to summary judgment on this basis.

B. Violations of the FDCPA

1. Count I: 15 U.S.C. ยง ...


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