In Roberts v. NRA Group, LLC, 2012 WL 3334488 (M.D.Pa. 2012), Judge Caputo distinguished between delinquent debts and debts in “default” for purposes of triggering the FDCPA. Judge Caputo granted summary judgment to a debt collector on the basis that a delinquent hospital debt assigned to it was not “in default” at the time of the assignment.
Here, Defendant’s motion for summary judgment will be granted because no material facts are in dispute that Plaintiff’s account was not in default when it was referred to Defendant for collection. Initially, Plaintiff’s position that the Court should adopt the dictionary definition of “default” is unconvincing. Instead, “[i]n applying the FDCPA, courts have repeatedly distinguished between a debt that is in default and a debt that is merely outstanding, emphasizing that only after some period of time does an outstanding debt go into default.” See Alibrandi, 333 F.3d at 86. And while the judicial decisions and regulations cited by the Alibrandi court reflect inconsistent periods of time preceding default, “they all agree that default does not occur until well after a debt becomes outstanding.” Id. at 87 (citations omitted). As set forth by the Second Circuit: “We conclude that the FDCPA’s broad, pro-debtor objectives would not be served if we adopted Alibrandi’s argument that default occurs immediately after payment becomes due. Alibrandi’s position involves a curious role reversal-a debtor arguing that his debt was in default at the earliest possible time-and has the paradoxical effect of immediately exposing debtors to the sort of adverse measures, such as acceleration, repossession, increased interest rates, and negative reports to credit bureaus, from which the Act intended to afford debtors a measure of protection. We believe it ill-advised to adopt an approach that precipitously visits these consequences upon debtors. Id. Plaintiff’s argument that the definition of default was essential to the Check Investors court’s holding, which was set forth in a footnote without any analysis of contrary authority rejecting the dictionary definition, is unavailing. In Check Investors, the plaintiff’s check had already been dishonored (i.e. already in default by dishonor) and the court indicated that there was no arguable dispute that the checks were in default at the time of purchase. See Check Investors, 502 F.3d at 172 & n.12. This case, however, presents a different factual scenario where the creditor expressly deemed the account not in default when it was placed with the servicer. Accordingly, as articulated by the Prince court, whether Plaintiff’s account was in default will be determined by looking at the “state of mind” of the creditor to see whether the creditor considered the debt to be in default. Prince, 346 F. Supp. 2d at 749.In [*18] this case, Defendant has satisfied its initial burden of showing that there is no material fact in dispute and that it is entitled to judgment as a matter of law. In particular, Defendant has presented evidence through thetestimony of the hospital’s designee that: (1) Plaintiff’s account came due on August 27, 2010, (Zabrenski Dep., 54:4-6); (2) the account was referred to Defendant on or about September 17, 2010, (Id. at 127:18-20); (3) the account was not deemed in default by the hospital as of October 18, 2010, (Id. at 144:15-17); and (4) the account was deemed as bad debt on March 31, 2011. (Id. 41:23-42:16.) Consistent with the authority relied on by Alibrandi, Plaintiff’s debt had only been past due for approximately twenty-one (21) days when it was referred from the hospital to Defendant- indicating that the debt was not yet in default. Thus, based on this evidence, Defendant has made an initial showing that the hospital did not consider Plaintiff’s account to be in default when it was referred to Defendant. See Prince, 346 F. Supp. 2d at 749. To defeat summary judgment, therefore, Plaintiff must “‘make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.'” Id. (quoting Celotex Corp., 477 U.S. at 322.)Plaintiff has failed to provide any evidence in support of his position that the account was in default when it was placed with Defendant. While Plaintiff asserts that Ms. Zabrenski “was obviously well-coached for the deposition and was sympathetic to the Defendant’s cause” and her testimony “appears to simply be an effort to assist the Defendant,” “‘to survive summary judgment, a party must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue.'” McCabe v. Ernst & Young, LLP, 494 F.3d 418, 436 (3d Cir. 2007) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)). Apart from Plaintiff’s suspicions, he has failed to provide any evidence that the hospital administers accounts inconsistently or for the purpose of circumventing the FDCPA. As such, even viewing the evidence in the light most favorable to Plaintiff, he has failed to make a showing sufficient to demonstrate a genuine issue of fact as to whether his account was in default when it was referred to Defendant. As such, Defendant’s motion will be granted.