District Court (Cal.) Says Cease-and-Desist Violated by Call Attempt, Even if Debtor Did Not Answer the Phone

In McEndree v. Rash Curtis & Associates, 2012 WL 3028010 (E.D.Cal. 2012), Judge England held that violation of a cease-and-desist exists even if the debtor never answers the telephone call that forms the basis for the cease and desist.  Judge England explained:

Rash Curtis advances two arguments in support of its futility argument. First, it argues that because Plaintiff did not actually speak to a Rash Curtis rep-resentative on April 5, 2012 (instead, according to Plaintiff, he just saw Rash Curtis’ identifying infor-mation flash on the screen of his cell phone and did not actually answer the call), there was no actionable “communication” involving Rash Curtis and Plaintiff as required for liability under either the FDCPA or the Rosenthal Act. The Court finds that hypertechnical distinction utterly unpersuasive. Whether Plaintiff answered the call or not, under his version of events a call was placed to him by Rash Curtis and he recognized the caller as Rash Curtis when it registered on his cell phone. Viewing the allegations in the light most favorable to the non-moving party, as the Court must do here under the applicable Rule 12(b)(6) analysis, the Court cannot say as a matter of law that no communication ensued. Consequently Rash Curtis’ futility claim on that basis must fail.