Full opinion text
MEMORANDUM OPINION LUNGSTRUM, District Judge. Plaintiff Dorothy M. Lowe brought this action against Defendants Surpas Resource Corporation (“SRC” or “Surpas”), Ray Cash (“Mr.Cash”), and U.S. Bank (formerly “Mercantile” and “Firstar”). In the Final Pretrial Order (“PTO”), she alleges that defendants violated the Kansas Consumer Protection Act (“KCPA”) and committed various torts and acts of negligence under Kansas common law in their attempts to collect debt from Ms. Lowe. Additionally, Ms. Lowe contends that U.S. Bank violated the federal Fair Credit Reporting Act by failing to investigate adequately her claims of identity theft and fraud. On March 25, 2003, the court issued a summary order on defendants’ summary judgment motions (Docs.170, 172, 175). Therein, the court granted in part and denied in part the motions filed by SRC and Mr. Cash. The court granted U.S. Bank’s motion in its entirety. This Memorandum Opinion supplements the court’s March 25, 2003 order. FACTUAL BACKGROUND The following facts are either uncontro-verted or construed in the light most favorable to Ms. Lowe, the nonmoving party. In June of 1994, Mercantile received a credit card application, which identified plaintiff Dorothy M. Lowe as the primary applicant and her daughter Judith Figiel as the secondary applicant. The application appears to contain the signatures of both the primary and secondary applicants. Mercantile issued a Mercantile Visa Account and a Mercantile MasterCard Account in Ms. Lowe’s name, in response to the application. From 1994 through 1997, charges were incurred and payments were made on both credit card accounts. All payments on the accounts stopped on November 7, 1997 and October 21, 1997 respectively, despite a remaining balance of $4,561.31 on the Visa account and $5,291.00 on the MasterCard account. Ms. Lowe contends that she is a victim of identity theft and fraud. She offers evidence suggesting that her daughter, Judith Figiel, and her son-in-law, Bernard Figiel (Judith’s husband), opened these two accounts and incurred charges without her consent or authorization. When payments ceased on the credit card accounts in late 1997, Mercantile attempted to collect the past due balances from Ms. Lowe. On September 17, 1997, James L. Renne (Ms. Lowe’s grandson and formerly lead counsel in this litigation), acting as Ms. Lowe’s durable power of attorney, drafted a letter disputing the validity of the charges on one of the Mercantile accounts. In that letter, he states that “Ms. Lowe did not open or make purchases on this account nor has she authorized the opening of this account by another in her name ... Any transaction in her name is fraudulent.” In a sworn affidavit, Mr. Renne states that he mailed the correspondence, by first class mail, postage prepaid on that same day. Also in September of 1997, Janet Woodall answered a Mercantile collection call at Ms. Lowe’s residence. Ms. Woodall told the Mercantile collector, Tina Jones, that Ms. Lowe disputed the validity of the accounts. In 1998, Ms. Woodall similarly disputed the validity of the debt with another Mercantile representative after the representative threatened to file charges against Ms. Lowe. When Mercantile’s collection efforts failed, it assigned one of the accounts to Client Services, a debt collection agency, on July 6, 1998. Mercantile assigned the second account to Client Services on August 4,1998. On March 1, 1999, Client Services received a letter from James L. Renne, which stated that “Dorothy M. Lowe did not authorize nor benefit from the Mercantile credit card accounts... [n]or did she authorize or empower any other person to seek credit in her name...,” and that “[s]he does not accept any responsibility for balances on these accounts.” Client Services notified Mercantile of the dispute on March 3, 1999. On March 18, 1999 Mercantile sent Client Services a fraud affidavit for Ms. Lowe to sign and return. Mercantile requested Client Services forward the signed affidavit, once completed, so it could compare Ms. Lowe’s signature on the affidavit with the one on the original credit card applications. Mercantile also requested that Client Services inquire whether Ms. Lowe knew the secondary cardholder, Judith Figiel. Mercantile also forwarded to Client Services copies of credit card statements that reflected the history of transactions on the two credit card accounts. On August 25, 1999, Mr. Renne mailed another letter disputing the validity of the credit card debt (signed by Dorothy M. Lowe) to Mercantile. Mr. Renne also attached an affidavit executed by Ms. Lowe on July 16, 1998, describing the fraudulent scheme allegedly employed by her daughter and son-in-law to acquire the Mercantile accounts. Also on August 25, 1999, Ms. Lowe sent letters to several credit reporting agencies disputing the validity of several reported debts, including the Mercantile accounts. After investigating Ms. Lowe’s claims, the credit reporting agencies removed several debts from her credit report. Some of the credit reporting agencies indicated the Mercantile accounts would be deleted. On October 14, 1999, after Consumer Resources failed to collect on the accounts, Mercantile assigned the accounts to Sur-pas Resources Corporation, another debt collection agency. At the time SRC received the accounts, Mercantile records did not indicate that Ms. Lowe had disputed the debt. The relationship between SRC and Mercantile was governed by the Collection Agency Agreement. The Agreement provides that: The Agency shall perform all collection services under this Agreement as an independent contractor, and nothing contained herein shall be deemed to create any association, partnership, join[t] venture or relationship of employer or employee or principal and agent between the Agency and the Client. Under the Agreement, Mercantile agreed to pay SRC a percentage of any amount they recovered from Ms. Lowe. SRC was not compensated based upon the number of hours devoted to collecting the accounts. Mercantile did not provide any office supplies or equipment to SRC, did not share a computer system with SRC, did not assist SRC in hiring employees or monitoring their work performance, and did not train or test Surpas’ employees. Mercantile, however, was allowed to log onto SRC’s computer system to view telephone records detailing SRC’s collection efforts. On October 16, 1999, SRC first initiated its efforts to collect from Ms. Lowe on the Mercantile accounts. From that date through January 21, 2000, SRC made approximately 20 direct contacts with the plaintiff, 2 direct contacts with her attorney and grandson James Renne, 5 direct contacts with members of her family, and left 9 voice messages at her residence. During this time, defendant Ray Cash was employed by SRC as an assistant manager. SRC did not conduct a background check or investigation prior to hiring Mr. Cash. Mr. Cash misrepresented the extent of his education in his resume. As to the direct collection calls Ms. Lowe received during this time period, she does not specifically recall the identity of the collection callers or the agencies that they represented. SRC, however, was the only collection agency attempting to collect debt from Ms. Lowe during this time period. As to the substance of the conversations and the tactics employed during the course of these collection efforts, Ms. Lowe specifically recalls that the collectors threatened her with aggressive legal action and threatened to take her home from her. On two occasions, one in November of 1999 and the other in January of 2000, another grandson of Ms. Lowe, Mark Renne, listened in on the collection calls. Mark Renne testified that during the course of these collection calls SRC employee Ray Cash called Ms. Lowe a “low life” and a “thief,” threatened to take her home and threatened to personally come to her house to take care of the situation. SRC caught Mr. Cash making similar threats to other debtors in January and February of 2000, resulting in his discipline and subsequent termination. Finally, during the course of many of these collection calls, Ms. Lowe disputed the validity of the debt, informed the callers that her attorney and grandson James Renne was handling the matter, and requested they cease their collection efforts. As to the direct contacts with Ms. Lowe’s family members and her grandson, SRC communicated that it would pursue aggressive legal tactics against Ms. Lowe if she did not make payment on the accounts. Family members communicated to SRC that Ms. Lowe was a victim of fraud. Also, on two occasions, Mr. James L. Ren-ne contacted SRC employees Cassandra Bailey and Ray Cash. On November 15, 1999 he spoke with Ms. Bailey, who confirmed that she was attempting to collect debt on two Mercantile credit card accounts. Mr. Renne requested that SRC stop calling his grandmother because the debt was invalid. On November 10, 1999, Mr. Renne informed Mr. Cash that the accounts were opened without Ms. Lowe’s consent. Mr. Cash threatened that Mr. Renne’s grandmother could face civil and criminal litigation. As to the voice messages, the recordings were left on SBC’s Callnotes®, which is a voice mail system that allows a user to receive messages from anywhere without an answering machine. James Renne, not Ms. Lowe, set up the answering service on Ms. Lowe’s home number and he retrieved and listened to all the messages. Ms. Lowe did not retrieve or listen to the messages left on the service. James Renne made tape recordings of two of the messages from Mr. Cash. During the first message that Mr. Cash left on October 28, 1999, he “wished [Ms. Lowe] good luck” if she chose not to return the call and that the situation would be “rectified with or without [her] cooperation.” During the second message that Mr. Cash left later that same day, he indicated that Ms. Lowe’s attorney had still not contacted him. There is no evidence that James Renne actually communicated the substance of these or any other voice messages to Ms. Lowe. In addition to the telephone calls, SRC sent collection letters to Ms. Lowe on October 20, November 17, December 1, and December 10, 1999. SRC last contacted Ms. Lowe on January 21, 2000. It closed the two Mercantile accounts on May 6, 2000 after concluding that it had exhausted all efforts to collect the alleged debt. On April 11, 2001, however, SRC restored one of the accounts from its archives for some unknown reason and added it to the call list. As a result, SRC attempted to contact Ms. Lowe on May 1, 2001, but no one answered the telephone call. As a result of these contacts, Ms. Lowe often became nervous, upset and anxious. According to deposition testimony, this distress caused her to tremble, shake, cry and sometimes lose sleep. Ms. Lowe’s medical records, however, do not indicate that she suffered any physical injury or mental distress during the time of the collection calls, nor did she mention these calls to her physician. In June of 2001, Ms. Lowe was diagnosed with Alzheimer’s disease. On at least two occasions, Ms. Woodall, plaintiffs daughter, told an SRC caller that her mother was “too old” to be bothered with the calls. On several other occasions, Ms. Lowe told SRC that an attorney was managing her financial affairs. SRC records, however do not suggest or indicate that it had knowledge that Ms. Lowe suffered from a debilitating disease or that she was otherwise susceptible to emotional distress. On August 21, 2000, Mercantile sold the accounts to Collins Financial Services, but repurchased them in August of 2002, after it received notice that Ms. Lowe had filed a complaint against SRC. Collins Financial Services did not attempt to collect on these accounts or have any correspondence with Ms. Lowe. Neither Mercantile nor its successors attempted to collect from Ms. Lowe after SRC exhausted its efforts in May of 2000. On April 2, 2001, Ms. Lowe filed her initial complaint against SRC, Mr. Cash and “John and Jane Does 1-5.” Plaintiff amended her complaint on June 21, 2002, to add claims of negligent hiring, retention and supervision against SRC and to add U.S. Bank as a defendant. Defendants filed their motions for summary judgment on January 27, 2003. STANDARD Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002). A fact is “material” if, under the applicable substantive law, it is “essential to the exhibits in proper disposition of the claim.” Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671). Once the movant has met this initial burden, the burden shifts to the nonmov-ing party to “set forth specific facts showing that there is a genuine issue for trial.” Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibits incorporated therein.” Adams, 233 F.3d at 1246. The court notes that summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). ANALYSIS I. Kansas Consumer Protection Act Claims In Ms. Lowe’s first theory of recovery, she alleges that the defendants SRC and Ray Cash engaged in deceptive and/or unconscionable acts, in violation of the KCPA, while attempting to collect on two Mercantile credit card accounts. Ms. Lowe asserts these KCPA claims against U.S. Bank under a theory of vicarious liability and also asserts other KCPA claims directly against U.S. Bank. A. Claims Asserted against Defendants Cash and SRC Defendants SRC and Cash contend that the KCPA claims should be dismissed in part or in their entirety because: (1) Ms. Lowe does not know whether defendants as opposed to other collection agencies and employees made the telephone calls that form the basis of this claim; (2) telephone calls to which Ms. Lowe was not a party and voice messages that she did not receive are not actionable under the KCPA; (3) there is no admissible evidence to establish the content of the collection calls; and (4) the Act does not permit her to recover to the extent that she requests. The court addresses each of these arguments in turn. 1. Whether Ms. Lowe can Establish that Defendants Made the Alleged Collection Calls In the PTO, Ms. Lowe alleges 97 separate violations of the KCPA during purported conversations between SRC (often through employee Ray Cash) and the plaintiff. Defendants contend that Ms. Lowe cannot establish a genuine issue of material fact on several of these KCPA claims because she cannot prove the identity of the collection callers. a. Identity of Surpas Defendant SRC challenges two categories of collection calls. First, it contends that it did not contact Ms. Lowe on October 25, 29, or 30, 1999, as she alleges in paragraphs 7a(2)al, 2, 19, 25, and 26 of the Pretrial Order. In support of this argument, Surpas relies on its telephone records that detail the date, time and substance of telephone calls made to alleged debtors. Surpas’ records reveal that an employee attempted to contact Ms. Lowe on October 30, 1999, but that no one at the residence answered the call. The records further indicate that SRC did not attempt to contact Ms. Lowe on October 25, or October 29, 1999. Moreover, Ms. Lowe testified that she does not recall the identity of anyone who contacted her regarding the debts. This evidence places the burden upon Ms. Lowe to “set forth specific facts showing that there is a genuine issue for trial.” To that end, Ms. Lowe cites to the deposition of James L. Renne, wherein he testifies that SRC was the only agency placing collection calls to Ms. Lowe from October of 1999 through May of 2000. Second, Ms. Lowe points to SRC’s admission that it made at least 20 direct contacts with the plaintiff, 2 direct contacts with her attorney, 5 direct contacts with her family, and left 9 messages at her residence during the relevant time period (October 16, 1999 through January 21, 2000) to suggest that SRC was, more likely than not, the entity that originated the calls. Ms. Lowe further offered evidence that another grandson, Mark Renne, listened in on two collection calls initiated by SRC’s agent, Ray Cash. While much of this evidence is circumstantial, the court finds that a rational trier of fact could find, based upon this evidence, that SRC was more likely than not the entity that made the calls on or about the dates alleged in paragraphs 7a(2)al, 2, 19, 25, and 26 of the PTO. Second, SRC contends that it was not the collection agency that called Ms. Lowe, while her caregiver, Theresa Hernandez, listened on another line (as alleged in paragraphs 82 through 86 of the PTO). In support of this argument, SRC notes that Ms. Hernandez testified that she listened in on phone calls from an unidentified collection agency shortly after she began working for Ms. Lowe in October or November of 1998. Surpas, however, did not initiate its collection efforts against Ms. Lowe until October 16, 1999. Moreover, other entities were attempting to collect the same debt from Ms. Lowe beginning in 1997 through 1999. In her response, Ms. Lowe failed to set forth any specific facts to challenge Surpas’ argument. She alleges that Ms. Hernandez was mistaken about the year she began working for her and, therefore, the date she first heard the collection calls. Ms. Lowe, however, fails to offer any evidence to support this allegation. As such, Ms. Lowe has failed to establish a genuine issue of material fact as to the identity of the caller who attempted to collect debt from Ms. Lowe, while Ms. Hernandez listened in on the other line. Summary judgment is granted as to any KCPA claims that specifically rely on those contacts (which SRC identifies to be paragraphs 7a(2)a82-86 of the Pretrial Order). b. Identity of Defendant Cash Similarly, Mr. Cash challenges the identity of the caller implicated in paragraphs 7a(2)a1-2 of the PTO. In those paragraphs, Ms. Lowe alleges that on or about October 29, 1999, Ray Cash or another male employee of Surpas engaged in collection efforts in violation of the KCPA. Mr. Cash contends that Ms. Lowe cannot establish that he made those calls on October 29, 1999. In support of this argument, Mr. Cash notes that Surpas’ records indicate that he telephoned plaintiffs home number on only four occasions and never on October 29, 1999. Mr. Cash testified during his deposition that he never spoke directly to Ms. Lowe and plaintiff testified she does not recall speaking to a male debt collector. Based on this evidence, Mr. Cash believes he is entitled to summary judgment as to the allegations contained in paragraphs 7a(2)al-2 of the PTO. Again, this evidence places the burden on Ms. Lowe to “set forth specific facts showing that there is a genuine issue for trial.” To that end, Ms. Lowe offers internal memorandum wherein Mr. David Russo reports to SRC that Mr. Cash made threats (to pursue legal action and to take away a creditor’s home) similar to those alleged in paragraphs 7a(2)al-2 of the PTO to other debtors. Also, as noted above, Mark Renne listened in on two calls between Ms. Lowe and a male debt collector, who he later identified as Mr. Cash. Ms. Lowe further challenges Mr. Cash’s reliance on Surpas’ telephone records because collection employees can subsequently alter their contents in SRC’s computer system. The court finds that this evidence creates a genuine issue of material fact as to whether Mr. Cash made the telephone contacts alleged in 7a(2)al-2 of the PTO and summary judgment is denied on this ground. 2. Liability for Communications that Ms. Lowe Never Received The KCPA provides relief to consumers aggrieved by a violation of the Act. Defendants contend that Ms. Lowe cannot, as a matter of law, be aggrieved by communications she never received. Specifically, in paragraphs 7a(2)a 37-63, 69-70, 89, 94 and 96 of the PTO, Ms. Lowe alleges that SRC violated the KCPA during conversations with her lawyer and/or family members. In paragraphs 7a(2)a 5-10, 13. 16, 27, and 32-33 she alleges that SRC violated the KCPA in messages she never heard and that her lawyer retrieved from her voice mail system. Because she never received these communications, defendants argue that they are not actionable under the KCPA. The KCPA provides that “[n]o supplier shall engage in any deceptive act or practice in connection with a consumer transaction.” K.S.A. § 50-626(a). The KCPA further restricts suppliers from engaging “in any unconscionable act or practice in connection with a consumer transaction.” K.S.A. § 50-627(a). The Act contemplates that a “consumer who is aggrieved by a violation of this act may recover, but not in a class action, damages or a civil penalty as provided in subsection (a) of K.S.A. 50-636 and amendments thereto, whichever is greater.” K.S.A. § 50-634(b) (emphasis added). The Kansas Supreme Court has held that a consumer is not automatically entitled to § 50-634 remedies each time a supplier violates the Act. Instead, the consumer must demonstrate that the violation was causally connected to the consumer’s damages to be entitled to these remedies. Finstad v. Washburn Univ. of Topeka, 252 Kan. 465, 845 P.2d 685 (1993). In Finstad, students who enrolled in Washburn’s court reporting program alleged that the University violated the KCPA by representing in an academic course catalogue that its program was accredited when in fact the National Shorthand Reporters Association had not yet certified it. Id. at 688. Many of the students, however, enrolled in the program before the catalogue was published or without knowledge of the error in the catalogue. Id. The students claimed that they were “aggrieved” consumers under the KCPA because they paid tuition for a program that was not accredited. Id. The students, however, did not suggest that they were “induced to enroll in the program by the false statement that [the court reporting program] was accredited... ” Id. That is, “the students did not demonstrate a causal link between Wash-burn’s false statement and their injuries.” Id. The trial court granted summary judgment against the plaintiffs on those grounds. On appeal, the students argued that the KCPA did not require a causal connection between the misrepresentation and the grievance. Id. at 689. Instead, appellants argued that “all they need to show for recovery is that they are consumers who are engaged in a consumer transaction with defendant and that defendant committed a deceptive act or practice under the Act.” Id. The Kansas Supreme Court disagreed, arguing that the plain language of the statute provides relief only to those consumers aggrieved (i.e. those who suffer loss or injury) because of a violation of the Act. Id. at 689 (noting that “[i]f the students are not aggrieved by the violation, then they do not have a remedy under K.S.A. 50—634(b)”). The court refused to “interpret an aggrieved consumer to be one who is neither aware of nor damaged by a violation of the Act...” and concluded that “the district court did not err in holding that a causal connection is still required to maintain an action under K.S.A. 50-634(b)...” Id. at 692. The defendants rely on Finstad to argue that, as a matter of law, Ms. Lowe cannot be aggrieved by calls to which she was not a party or voice messages that her attorney retrieved. Indeed, in Finstad, the court refused to interpret an aggrieved consumer as one who is neither aware of nor damaged by a violation of the act. Unlike Finstad, however, where the misrepresentations in a course catalogue did not induce students to enroll in the court reporting program, here Ms. Lowe has demonstrated a genuine issue of material fact as to whether she was “damaged” by the alleged violations of the KCPA. The KCPA does not define the term “aggrieved.” In Finstad, the court defined the term as “ ‘[h]aving suffered loss or injury.’ ” 845 P.2d at 690 (quoting Black’s Law Dictionary 65 (6th ed.1990)). Moreover, in Petition of Kansas City, 190 Kan. 308, 374 P.2d 35 (1962), the Kansas Supreme Court defined the term “aggrieved” in the context of G.S.1949, 12-502a as follows: A party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order. The term refers to a substantial grievance, a denial of some personal or property right, or the impo sition upon a party of some burden or obligation. In this sense it does not refer to persons who may happen to entertain desires on the subject, but only to those who have rights which may be enforced at law and whose pecuniary interest may be affected. Id. at 41 (emphasis added). Here, SRC’s collection calls imposed upon Ms. Lowe the burden of retaining the assistance of third parties to respond to SRC’s inquiries. Ms. Lowe specifically directed SRC’s agents to contact James Renne regarding the collection matter. Though Ms. Lowe was not a party to all of the collection calls and voice messages, her agents and family members received these communications and responded to them on her behalf. Moreover, as her attorney, James Renne had a duty to communicate the subject matter of these collection efforts to Ms. Lowe. As such, the court cannot conclude, as a matter of law, that the calls to her attorney and other family members and the voice messages retrieved by her attorney did not incrementally add to Ms. Lowe’s “burden.” As such, she has demonstrated a genuine issue of material fact that she was “aggrieved” by these telephone calls. 3. Genuine Issue of Fact as to Content of the Conversations SRC and Mr. Cash argue that for many of the alleged KCPA violations Ms. Lowe has either no evidence or only inadmissible evidence establishing the content of the conversations during the collection calls. First, as to the claims asserted in paragraphs 7a(2)a11-18, 20-24, 27-29, 31-35, 64-68, 71-81, and 97 of the PTO, SRC contends that Ms. Lowe has no evidence to support the content of those communications. In support of that argument, SRC notes that Ms. Lowe has not identified any witness who can testify to the content of the claimed conversations and that she does not recall the substance of those calls. Thus, SRC argues that the substance of the allegedly unlawful collection efforts are founded upon bald assertions that are not supported by any evidence. In response, Ms. Lowe cites to sections of her deposition testimony where she recalls that the debt collectors made various threats to pursue legal action and also threatened to take away her home. Ms. Lowe also notes that Mark Renne listened in on two debt collection calls wherein Mr. Cash called her a thief and a low-life, threatened to come to her home, and threatened to take away her home. Finally, SRC’s conversations with Ms. Lowe’s family members and the voice messages tend to corroborate Ms. Lowe’s recollection of the subject matter and tactics employed by SRC and Mr. Ray Cash. Taken as a whole, this evidence creates a genuine issue of material fact as to the subject matter of the conversations alleged in paragraphs 7a(2)all-18, 20-24, 27-29, 31-35, 64-68, 71-81, and 97 of the PTO. As such, the court denies summary judgment on this particular ground for relief. 4. Limitation on Damages under the KCPA Defendants contend that Ms. Lowe is not entitled to multiple recoveries under the KCPA, based on the same wrongful act. Additionally, defendants argue that Ms. Lowe has overstated the amount of permissible statutory damages and that the damage enhancement (available for KCPA violations against the elderly or disabled) does not apply in this action. a. Multiple Claims Based upon a Single Utterance SRC contends that a single act or practice cannot constitute multiple violations of the KCPA. Plaintiff does not dispute this argument and informs the court that she is not attempting to claim multiple recoveries based upon a single utterance. To the extent that Ms. Lowe does seek multiple violations based on a single utterance made during the course of a collection call, summary judgment is granted as to the duplicitous claims. b. Limitation on the Amount of Statutory Damages Ms. Lowe claims she is entitled to $20,000 for each violation of the KCPA: $10,000 for each violation pursuant to K.S.A. § 50-636 and an additional $10,000 enhancement for each violation pursuant to K.S.A. § 50-677 because the violation was committed against an elder or disabled person. Defendants believe that Ms. Lowe is entitled to only $5,000 per violation, which was the statutory penalty in place at the time they allegedly committed the wrongful acts. SRC and the other defendants also argue that the enhancement does not apply because there is no evidence that they knew or should have known plaintiff was elderly or that she was disabled when it contacted her. As to the statutory penalty, Ms. Lowe admits that the Legislature increased the civil penalty from $5,000 to $10,000 after defendants completed their alleged wrongful acts and “acknowledges that defendant is correct on this issue.” Thus, the court grants summary judgment to the extent that Ms. Lowe seeks civil penalties under K.S.A. § 50-636 in excess of $5,000 per each violation of the KCPA. See, e.g., State ex rel. Stephan v. Commemorative Serv. Corp., 16 Kan.App.2d 389, 823 P.2d 831, 839 (1991)(finding that “[o]ur system of justice does not permit the imposition of ex post facto penalties for actions committed prior to the creation of those penalties”). As to the enhancement, which Ms. Lowe apparently seeks based upon her elderly status, the court finds that summary judgment is not proper at this stage of the proceedings. Kansas law provides that “[i]f any person is found to have violated any provision of the Kansas consumer protection act, and such violation is committed against elder or disabled persons, in addition to any civil penalty otherwise provided by law, the court may impose an additional civil penalty not to exceed $10,000 for each such violation.” K.S.A. § 50-677. In determining whether to impose this enhancement the court is required to consider a number of factors including “whether the defendant knew or should have known that the defendant’s conduct was directed to an elder or disabled person.” K.S.A. § 50 — 678(b). However, a defendant’s knowledge of the plaintiffs status is not a necessary precondition for imposing the penalty, but instead, it is merely one of several factors the court must consider before imposing the enhanced civil penalty. In any event, the court cannot say as a matter of law that Ms. Lowe would not be entitled to the enhanced penalty, should she ultimately prevail on one of her KCPA claims. As such, the court denies summary judgment on this issue. In short, the court finds that Ms. Lowe has created a genuine issue of material fact as to the identity of the callers, except for the collection calls Ms. Lowe allegedly received while her caretaker, Ms. Hernandez, listened on the other line. As to those calls, summary judgment is granted because Ms. Lowe has failed to offer evidence from which it could be established that defendants placed those calls. Additionally, the court denies defendants’ motion for summary judgment as to all collection calls and conversations to which Ms. Lowe was not a party (calls to family members and her attorney when Ms. Lowe herself was not on the line) and voice messages she did not retrieve because she has demonstrated a genuine issue of material fact as to whether she was “aggrieved” by such communications. The court further finds that Ms. Lowe has created a genuine issue of material fact as to the subject matter and substantive content of the collection calls as well as the tactics employed by defendants in attempting to collect the alleged debt from her. Finally, the court finds that while Ms. Lowe cannot recover multiple penalties for a single utterance under the KCPA, she may recover statutory damages, which are limited to $5,000 per violation (the penalty in place at the time of the alleged wrongdoing), for each separate violation of the Act. Moreover, the court does not find, at this stage of the proceedings, that Ms. Lowe is legally barred from recovering a statutory enhancement based upon her age and/or disability under K.S.A. § 50-677, should she ultimately prevail on one of her KCPA claims. B. Claims Asserted Against Defendant U.S. Bank Ms. Lowe also asserts KCPA claims against U.S. Bank under a theory of vicarious liability as well as claims directly against U.S. Bank. Ms. Lowe has failed to create a genuine issue of material fact as to either one of these theories. 1. Vicarious Liability of U.S. Bank for the Acts of SRC and Mr. Cash “As a general rule, when a person (a contractee) lets out work to another and reserves no control over the work or workmen, the relation of contractee and independent contractor exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor.” Falls v. Scott, 249 Kan. 54, 815 P.2d 1104, 1109 (1991) (citing Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983)). In Falls, the Kansas Supreme Court defined an independent contractor relationship and set forth the general test for distinguishing that relationship from an employer-employee. An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. Id. at 1112 (citing Wallis v. Sec’y of Kan. Dept. of Human Res., 236 Kan. 97, 689 P.2d 787 (1984)). “Although the right of control test is the most important single consideration in determining the relationship, it is not exclusive — other relevant factors are also to be considered.” McDonnell v. Music Stand, Inc., 20 Kan.App.2d 287, 886 P.2d 895, 899 (1994) (citing Jones v. City of Dodge City, 194 Kan. 777, 402 P.2d 108 (1965)). In addition to this general rule, the Restatement (Second) of Agency § 220(2) (1957) sets out several relevant factors to consider when deciding whether one is an employee or an independent contractor, including: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business. The Kansas Supreme Court has recognized that these factors are helpful in determining whether the court should consider an entity to be an employee for purposes of imputing fault. Brillhart v. Scheier, 243 Kan. 591, 758 P.2d 219, 223 (1988). Generally, the question whether an entity is an agent or an independent contractor is a question of fact for the jury, but where “the facts are undisputed or the evidence is susceptible of only a single conclusion, it is a question of law for the court whether one is an employee or an independent contractor.” Falls, 815 P.2d at 1112. Moreover, in this case, SRC and U.S. Bank’s relationship was governed by an unambiguous written contract and “the interpretation of that agreement is properly a matter of law.” Knorp v. Albert, 29 Kan.App.2d 509, 28 P.3d 1024, 1027 (2001). After considering these factors, the court finds that the evidence is susceptible to only one conclusion: that SRC was an independent contractor and not an employee of U.S. Bank. First, while the agreement permits U.S. Bank to review SRC’s collection efforts, it does not authorize U.S. Bank to exercise any control over the manner in which SRC attempts to collect the debts. Second, SRC’s business is dedicated to the collection of debt and U.S. Bank employed SRC for those distinct services. Third, U.S. Bank did not provide any office supplies or equipment to SRC under the terms of the Agreement, did not share a computer system with SRC, did not assist SRC in hiring employees or monitoring their work performance, and did not train or test SRC employees. Fourth, under the agreement, SRC was paid by the job, i.e., a percentage of each account collected, instead of by the hour. Fifth, the parties believed they were creating an independent contractor relationship, as evidenced by the unambiguous language in the agreement that SRC was to “perform all collection services under this Agreement as an independent contractor, and nothing contained herein shall be deemed to create any association, partnership, join[t] venture or relationship of employer and employee or principal and agent between [SRC] and [U.S. Bank].” The court recognizes that either party could terminate the contract upon written notice and that U.S. Bank had great latitude to review SRC collection activity, but these facts do not suggest that U.S. Bank retained the type of control over SRC necessary to establish an agency relationship or that could overcome the unambiguous intent of the contracting parties. McDonnell, 886 P.2d at 899 (finding collection agency was independent contractor, despite language in contract using the term “agent,” because creditor did not have right to control how the contractor would collect, contractor was paid a commission on accounts, and power to terminate was equally conferred on both parties). Ms. Lowe, however, also argues that the general rule of non-liability does not apply because U.S. Bank had nondelegable statutory duties under state and federal law. The Restatement of Torts recognizes that “[o]ne who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.” Restatement (Second) of Torts § 424 (1965). Ms. Lowe suggests that the duties imposed upon creditors and debt collectors under the Kansas Consumer Protection Act, the Fair Debt Collection Practices Act and the Fair Credit Reporting Act are sufficiently analogous to “safeguards or precautions for the safety of others” to fall within this exception to the rule of non-liability for the acts of independent contractors. In support of its position, Ms. Lowe relies on Clark v. Assoc. Commercial Corp., 877 F.Supp. 1439 (D.Kan.1994). In Clark, the court found that defendant had a statutory obligation to take precautions against a breach of the peace during repossession. Thus, even though defendant hired an independent contractor to repossess the property, the duty to take precautions against a breach of the peace remained with the defendant. Id. at 1447. That duty remained with the defendant because under Tennessee law, which governed the question before the court, it is non-delegable, and thus, “a secured party is vicariously liable for wrongful acts of the repossessor even if the repossessor is an independent contractor.” McCall v. Owens, 820 S.W.2d 748, 751-52 (Tenn.Ct.App.1991). Not all statutes, however, impose affirmative obligations that constitute non-delegable duties. While the Kansas Consumer Protection Act prohibits deceptive and unconscionable acts, that obligation is imposed on all suppliers, not just creditors similarly situated to U.S. Bank. Ms. Lowe fails to identify any affirmative, non-delegable duty under the KCPA. Likewise, the Fair Debt Collection Practices Act (“FDCPA”) does not impose non-delegable duties upon U.S. Bank. Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors,” 15 U.S.C. § 1692(e), and its provisions apply almost exclusively to debt collectors, which the statute defines as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Thus, actual creditors, such as U.S. Bank, are not generally subject to the Act. McGrady v. Nissan Motor Acceptance Corp., 40 F.Supp.2d 1323, 1335 (M.D.Ala.1998). Finally, Ms. Lowe fails to identify any specific non-delegable duties imposed upon U.S. Bank under the FCRA. The FCRA prohibits all individuals, not just creditors, from misusing credit information, and as such, does not specifically impose non-delegable duties on creditors. See, e.g., Del Amora v. Metro Ford Sales and Serv., Inc., 206 F.Supp.2d 947, 953 (N.D.Ill.2002) (creditor did not violate non-delegable duty under FCRA when employee violated obligation to refrain from using or obtaining credit reports for improper purposes because protection applied to “all persons”). Because U.S. Bank is not vicariously liable for the acts of its independent contractor, SRC, or SRC’s employee, Mr. Cash, the court grants U.S. Bank’s motion for summary judgment on this issue. Therefore, Ms. Lowe’s KCPA, invasion of privacy, outrage and negligent hiring, supervision and retention claims, to the extent Ms. Lowe bases, them on a theory of vicariously liability, are dismissed as to U.S. Bank. 2. KCPA Claims Asserted Directly Against U.S. Bank Ms. Lowe argues that U.S. Bank (Mercantile at the time) directly violated the KCPA by misrepresenting to SRC and Collins Financial Services that the Mercantile credit card debts were constituted valid and collectible debt. U.S. Bank argues that summary judgment is appropriate because, among other arguments, Ms. Lowe “has not alleged that Mercantile or its successors made any misrepresentation to her, or withheld any information from her.” Indeed, in her first theory of recovery in the pretrial order, her KCPA claims appear to be based upon misrepresentations made from U.S. Bank to SRC and Collins Financial Services regarding the validity of the accounts. The question is whether these misrepresentations, which were not made directly to Ms. Lowe, are actionable under the KCPA. As noted above, the KCPA provides that “[n]o supplier shall engage in any deceptive act or practice in connection with a consumer transaction.” K.S.A § 50-626(a) (emphasis added). A consumer transaction “means a sale, lease, assignment or other disposition for value of property or services within this state” (except insurance contracts regulated under state law) to a consumer; or a solicitation by a supplier with respect to any of these dispositions. K.S.A. § 50-624(c) (emphasis added). A consumer “means an individual, husband and wife, sole proprietor, or family partnership who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” K.S.A. § 50-624(b). To the extent Ms. Lowe’s claims are based on U.S. Bank’s alleged misrepresentations to SRC and/or Collins Financial Services, those statements were not made in connection with a “consumer transaction.” Instead, those alleged misrepresentations were made in connection with a non-consumer transaction between U.S. Bank and SRC and U.S. Bank and Collins Financial Services, whereby U.S. Bank sold or disposed for value the Mercantile accounts to parties that were not consumers, as that term is defined under the Act. In Limestone Farms, Inc. v. Deere & Co., 29 Kan.App.2d 609, 29 P.3d 457 (2001), the Kansas Court of Appeals found that a supplier’s misrepresentations made in connection with such non-consumer transactions are not actionable under the KCPA. In Limestone Farms, Inc., Tim Beim farmed on 2,000 acres of land leased from Limestone Farms on a cash rent basis. Id. at 459. Mr. Beim wanted to plant corn for the 1995 growing season, which needed to be in the ground no later than early May of that year. Id. To accomplish this task, Beim needed to purchase a planter, but because he had not established his own farming company at the time, he approached his landlord, Limestone, to purchase the planter. Limestone agreed and Mr. Beim approached Smith County Implement, Inc. d/b/a/ Phillips County Implement (PCI) to select a planter. Id. After negotiating a purchase price, Mr. Beim selected a John Deere planter he thought was no more than a year old. The purchase order “listed Limestone Farms as the buyer and the date of purchase was May 3, 1995.” Id. Limestone Farm’s attorney-in-fact signed the purchase agreement and paid the purchase price with a check drawn on Limestone Farms’ account. Id. Mr. Beim’s farm company, Interior Farms, L.L.C., was not formed until July of 1995. Id. In July of 1995, Interior Farms paid Limestone Farms for the planter. Id. Once Mr. Beim took possession of the planter purchased from Limestone Farms, he realized that it did not operate properly. As a result of the defect, Mr. Beim was unable to plant a full crop and was later unable to plant his milo crop for that year. Id. At trial, plaintiffs (Limestone, Tim Beim and Interior Farms) alleged numerous violations of the KCPA and of the Uniform Commercial Code. The trial court granted defendants’ summary judgment motion on all counts and plaintiffs Tim Beim and Interior Farms, L.L.C., appealed. In affirming the grant of summary judgment on the KCPA claims, the court explained: As used in the KCPA, a consumer is an individual or sole proprietor who seeks or acquires property for personal, business, or agricultural purposes. K.S.A. 50-624(b). A consumer transaction includes a sale of property within the state to a consumer. K.S.A. 50-624(c). K.S.A. 50-626 prohibits a supplier from engaging in any deceptive act or practice in connection with a consumer transaction, and K.S.A. 50-627 prohibits a supplier from engaging in an unconscionable act or practice in connection with a consumer transaction. In the present case, it is undisputed Beim never personally bought nor actually acquired the planter. Thus, Beim is not a consumer; therefore, defendants were not involved in a consumer transaction with Beim, and Beim cannot maintain an action based on K.S.A. 50-626 or K.S.A. 50-627. The trial court did not err in granting defendants’ motion for summary judgment on this issue. Id. at 461. As in Limestone Farms, Inc., Ms. Lowe never purchased or acquired a property interest in the Mercantile accounts. Instead, only SRC and Collins Financial Services acquired such interests in their transactions with U.S. Bank. SRC and Collins Financial Services were corporate entities and not “consumers” (as that term is defined under the KCPA) in those transactions. Thus, any misrepresentation that occurred between U.S. Bank and SRC or Collins Financial Services was not made in connection with a consumer transaction and is not actionable under the KCPA. To the extent Ms. Lowe’s claims are based on these transactions, they must necessarily fail. For this reason, the court grants summary judgment against Ms. Lowe’s KCPA claims asserted directly against U.S. Bank. In short, the court dismisses the KCPA claims Ms. Lowe asserts against U.S. Bank under a theory of vicarious liability because SRC and its agents were independent contractors and not employees. The court dismisses the claims asserted directly against U.S. Bank because the alleged misrepresentations were not made in connection with a consumer transaction. II. Invasion of Privacy by Means of Intrusion Upon Seclusion In Ms. Lowe’s second theory of recovery in the PTO, she alleges that the acts of SRC, Mr. Cash and U.S. Bank (vicariously) establish a claim of invasion of privacy by means of intrusion upon seclusion. In support of this claim, Ms. Lowe relies on the same facts supporting the alleged violations of the KCPA. “Generally, invasion of privacy is actionable where there is: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; or (4) publicity that unreasonably places another in a false light before the public.” Finlay v. Finlay, 18 Kan.App.2d 479, 856 P.2d 183, 189 (1993) (citing Restatement (Second) of Torts § 652A (1976)). As to privacy claims based upon a defendant’s intrusion upon seclusion, a defendant is liable if he or she intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another and the intrusion would be highly offensive to a reasonable person. Moore v. R.Z. Sims Chevrolet-Subaru, Inc., 241 Kan. 542, 738 P.2d 852, 856 (1987) (quoting Restatement (Second) of Torts § 652B (1976)). To recover under this particular invasion of privacy theory, however, a plaintiff must establish the existence of two conditions: “First, something in the nature of an intentional interference in the solitude or seclusion of a person’s physical being, or prying into his private affairs or concerns, and second, that the intrusion would be highly offensive to a reasonable person.” Id. at 857. A. Liability as to SRC and Mr. Cash The court must address whether a reasonable juror could find that defendants’ collection efforts constitute an intentional interference in the solitude or seclusion of Ms. Lowe’s physical being or prying into her private affairs or concerns and whether such an intrusion would be highly offensive to a reasonable person. The Kansas Supreme Court has explained that an actionable invasion: [M]ay be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiffs room in a hotel or insists over the plaintiffs objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiffs private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined. Id. at 857 (quoting Restatement (Second) of Torts, § 652B cmt b). However, Ms. Lowe’s ability to demonstrate a highly offensive intrusion is made more difficult because she shares a creditor/debtor relationship with the defendants. In Dawson, the Kansas Supreme Court explained: In this situation it must be recognized the right to be left alone is qualified by the rights of others. When one accepts credit, the debtor impliedly consents for the creditor to take reasonable steps to pursue payment even though it may result in actual, though not actionable, invasion of privacy. In the debtor-creditor situation the right of a debtor to privacy is subject to the right of a creditor to take reasonable steps to collect the debt. 529 P.2d at 110. Kansas courts have seldom addressed privacy claims in the context of collection efforts and therefore the contours of this tort remain somewhat vague. While examining the debtor’s interest in his or her privacy compared with the creditor’s right to pursue payment, the Kansas Supreme Court explained that “ ‘a creditor has a right to take reasonable action to pursue his debtor and persuade payment, although the steps taken may result to a certain degree in the invasion of the debt- or’s right of privacy,’ but.. .the debtor has a cause of action for injurious conduct on the part of the creditor which exceeds the bounds of reasonableness.” Dawson, 529 P.2d at 110-11. (quoting Housh v. Peth, 99 Ohio App. 485, 135 N.E.2d 440, 449 (.1955)). The issue before this court is whether a reasonable juror could find that SRC and Mr. Cash’s contacts exceed the bounds of reasonableness. SRC argues that its contacts were not unreasonable, as a matter of law, because SRC never actually contacted Ms. Lowe more than twice in a day and never contacted her before 8:30 a.m. or after 8:45 p.m. Moreover, SRC notes that it never attempted to contact Ms. Lowe more than three times in a single day. Likewise, Mr. Cash appears to have attempted to reach Ms. Lowe less than 10 times over a three month period and only spoke to her on two occasions. On the other hand, SRC directly contacted Ms. Lowe on at least 20 separate occasions and Mr. Cash attempted to contact Ms. Lowe on numerous occasions. SRC also sent Ms. Lowe collection letters on four separate occasions during this same time period. The defendants made these contacts despite Ms. Lowe and other family members’ continued attempts to dispute the validity of the debt. Moreover, Ms. Lowe, her family members, and her attorney grandson requested that SRC and Mr. Cash stop calling her. The court does not believe that these contacts do not, as a matter of law, exceed the bounds of reasonableness. Based on the frequency of the contacts, the continued attempts to dispute the debt, and the requests that SRC and Mr. Cash cease their collection efforts, the court believes summary judgment would be improper. For example, in Bauer v. Ford Motor Credit Co., 149 F.Supp.2d 1106, a District Judge in Minnesota refused to grant summary judgment on an intrusion upon seclusion claim based upon defendants’ collection efforts. There, the defendants left four messages on plaintiffs answering machine, made telephone contact with four neighbors or relatives and one employer, and instigated one repossession attempt over a five-month span. Id. at 1109. Moreover, the plaintiffs advised Ford Motor Credit Company that the debt was erroneous and to correct its records, and when it continued to call and send letters, plaintiffs enlisted the help of the local sheriff, the postmaster and an attorney, all of whom attempted to set the defendants straight. Id. at 1111. In denying summary judgment, Judge Doty recognized that “a reasonable person should expect that a company charged with collecting on a delinquent account would display a certain degree of persistence when the person on the other end of the telephone denies responsibility for a debt...,” but that “[u]nder these circumstances, where defendants received multiple and highly reliable confirmations of the inaccuracy of its records, the court must agree that a reasonable person could regard defendants’ continued persistence, culminating in a repossession attempt at plaintiffs’ home, as ‘highly offensive’ conduct.” Id.; see also Joseph v. J.J. Mac Intyre Companies, L.L.C., 238 F.Supp.2d 1158 (N.D.Cal.2002) (finding that material issues of fact existed as to whether debtor’s privacy was invaded when, over 19-month period, debt collection agency made nearly 200 calls to debt- or, who was a physically disabled senior citizen, and, on some days, made multiple calls after debtor requested that no further calls be made, that precluded summary judgment against debtor’s claim for intrusion into seclusion under California law, which like the cause of action in Kansas, is founded on Restatement (Second) of Torts § 652B). The court believes that the facts, when viewed in the light most favorable to the plaintiff are sufficiently similar to those in Bauer to justify denial of SRC and Mr. Cash’s motion for summary judgment on Ms. Lowe’s claim of invasion of privacy by means of intrusion upon seclusion. B. Liability as to U.S. Bank Ms. Lowe alleges that defendant U.S. Bank is vicariously liable for the acts of SRC and Ray Cash, and, therefore, asserts the invasion of privacy claim against it under that theory. As previously explained, SRC was an independent contractor and therefore U.S. Bank is not liable for its acts. It is unclear whether Ms. Lowe attempts to assert this claim directly against U.S. Bank. If so, the only allegations Ms. Lowe asserts in the PTO against U.S. Bank directly are that it misrepresented the validity of the accounts to SRC in 1997 and to Collins Financial Services in August of 2000. As discussed below, Ms. Lowe did not assert claims against U.S. Bank until May of 2002 and any claim against U.S. Bank based on its October 1997 alleged misrepresentation is barred by the statute of limitations. Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir.1987) (“statute of limitations for an invasion of privacy claim in Kansas is Kan. Stat. Ann. § 60-513(a)(4) (1983) which is the two-year tort catch-all provision for actions involving ‘injury to the rights of another, not arising on contract, and not herein enumerated.’ ”). Moreover, as discussed below, C