District Court (Cal.) Grants SJ to TCPA Defendant that Manual Calls Exempt from TCPA; Finds Triable Issue of Fact as to Whether Debt Was Exempted “Commercial” Debt Under FDCPA/Rosenthal Act

In Ellis v. Phillips and Cohen Associates, Ltd., 2016 WL 3566981, at *3-5 (N.D.Cal., 2016), Judge Davila found a triable issue of material fact as to whether a debt incurred by Plaintiff’s corporation, for which she denied responsibility, was a “commercial” debt under the FDCPA.

As this court previously observed when addressing Defendant’s motion to dismiss, a “consumer debt” qualifying for coverage under the FDCPA and the RFDCPA is one incurred “primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5); Cal. Civ. Code § 1788.2(e). Consequently, loans obtained for business purposes fall outside the purview of these statutes. Ordinario v. LVNV Funding, LLC, No. 13cv2804-LAB (NLS), 2016 U.S. Dist. LEXIS 28956, at *3, 2016 WL 852843 (S.D. Cal. Mar. 4, 2016) (“The FDCPA and RFDCPA apply only to consumer debt, not business loans.”); Bloom v. I.C. Sys. Inc., 972 F.2d 1067, 1068 (9th Cir. 1992) (“[T]he [FDCPA] applies to consumer debts and not business loans.”).   To classify a debt as either “consumer” or “business,” courts in the Ninth Circuit must “ ‘examine the transaction as a whole, paying particular attention to the purpose for which the credit was extended in order to determine whether [the] transaction was primarily consumer or commercial in nature.’ ” Slenk v. Transworld Sys., Inc., 236 F.3d 1072, 1074 (9th Cir. 2001) (quoting Bloom, 972 F.2d at 1075). However, courts must also “elevate[ ] substance over form” such that neither the motivations of the lender nor the way in which the loan is documented are dispositive of the issue. Id. Accordingly, both the “substance of the transaction” as well as “the borrower’s purpose in obtaining the loan” should be considered, “rather than the form alone.” Id. (citing Riviere v. Banner Chevrolet, Inc., 184 F.3d 457, 462 (5th Cir. 1999)).   Here, Defendant contends the Citi Debt was incurred for business purposes based on several items of evidence. First, Defendant submitted a declaration from Obringer, a Senior Vice President, attesting that the terms and conditions of the credit card underlying the Citi Debt required the account be used for business purposes. Obringer Decl., at ¶ 9. He also states the account records for the Citi Debt “include the annotation from CitiBank that the account is a ‘commerical’ account, and not a consumer account.” Id. at ¶ 11.  Second, Defendant has produced the transaction records for the Citi Debt, each of which was issued to Plaintiff and “Life Blossoms.” Id. at Ex. 3. As for the content of the statements, Defendant believes they establish that all purchases made related to meetings, transportation, and travel on behalf of Lifeblossoms, which Plaintiff admits is her corporation.  Id.    *4 Third, Defendant has submitted what it purports to be transcripts of the collections calls at issue. These transcripts reveal the calls were received by the voicemail for “Lifegraph and Team Synergy” and not Plaintiff. Obringer Decl., at Ex. 4.  For her part, Plaintiff objects to Obringer’s statement regarding the credit card’s terms and conditions, and objects to the transaction records in the manner presented. Furthermore, she states in her opposing declaration that she did not open the credit card account that resulted in the Citi Debt, and in any event, observes that the purchases listed on the transaction records “were primarily of a personal versus commercial nature.” Ellis Decl., at ¶¶ 3, 16.    Based on this record, and viewing the evidence in the light most favorable to Plaintiff as this court must, whether the Citi Debt should be classified as consumer or commercial is a material, genuine dispute because (1) the classification dictates whether Plaintiff can assert claims under the FDCPA and RFDCPA based on the Citi Debt, and (2) a reasonable jury could find in Plaintiff’s favor on the issue. . . . Indeed, Plaintiff’s evidentiary objections aside, neither Obringer’s description of the credit card’s terms and conditions nor the party to whom the transaction records were addressed definitively establishes that the purchases were made for business purposes, although such facts are relevant in evaluating Plaintiff’s alleged motivations for obtaining the credit card.Slenk, 236 F.3d at 1074.  Nor do the call transcripts indisputably establish the transactional nature of the Citi Debt. When previously discussing the transcripts in relation to this very same issue, the court indicated that “their content does not prove the alleged collection activity was related to a commercial debt” because the transcripts only show “that ‘Lifeblossoms and Team Synergy,’ rather than Plaintiff, were referenced in the recorded voicemail message.” Order, Dkt. No. 38. That still remains true. Moreover, it is notable “that Defendant’s representatives did not ask to speak with someone from Lifeblossoms or mention the collection of a commercial debt; they requested that Plaintiff return their calls.” Id. (emphasis preserved). “In short, simply identifying the recipient of a debt collection call does not prove anything about the nature of the debt at issue.” Id. Again, while identifying the recipient of the calls may reveal something about motivations, it does not establish the Citi Debt was incurred for business purposes.  Furthermore, the court cannot infer from the transaction records that the listed purchases were substantively commercial. The purchases, which fall into several varied categories from airfare to dry cleaning, are neither uniquely commercial nor uniquely consumer in character such that only one conclusion can be drawn from the evidence.   Thus, having examined “the transaction as a whole,” the court finds that Defendant is not entitled to summary judgment on its fourth affirmative defense because there exists a triable issue of fact regarding the nature of the Citi Debt.

The District Court found, however, that summary judgment was appropriate on the TCPA claims because the calls were manually dialed, and Plaintiff no evidence to the contrary.

The term “automatic telephone dialing system,” or “ATDS,” is defined as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).   Defendant argues that Plaintiff has not established the eight collection calls alleged in the amended complaint were made using an ATDS or prerecorded voice. Defendant is correct. In response to Defendant’s motion, Plaintiff has not presented any evidence upon which a reasonable jury could find that Defendant made the collection calls using the two methods prohibited by the TCPA. Instead, she argues against Defendant’s assertion that the calls were made manually. Doing so, however, does not satisfy her burden because no genuine factual issue exists for trial where a nonmoving party rests on mere allegations or denials. Matsushita Elec. Indus. Co., 475 U.S. at 586.  Because Plaintiff has not produced evidence to create a genuine issue of material fact, Defendant is entitled to summary judgment on the TCPA claim