In Brown v. I.C. Sys., No. 16 C 9784, 2019 U.S. Dist. LEXIS 45384 (N.D. Ill. Mar. 20, 2019), Judge Alonso denied a debt collector’s summary judgment motion, first finding that the call pattern created a question of fact.
Defendant argues that its recordings of connected calls show that plaintiff never told defendant to stop calling; on the few occasions when she picked up, she simply hung up again. Based on these records, defendant argues, plaintiff’s self-serving deposition testimony in which she describes telling defendant several times to stop calling cannot create a genuine issue of fact for trial. Defendant is incorrect. [*11] The fact that plaintiff’s claims rely on “self-serving” deposition testimony is no defect at the summary judgment stage; even “‘uncorroborated, self-serving testimony, if based on personal knowledge or firsthand experience, may prevent summary judgment against the non-moving party, as such testimony can be evidence of disputed material facts.'” Marr v. Bank of Am., N.A., 662 F.3d 963, 968 (7th Cir. 2011) (quoting Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010)); cf. Hendricks, 891 F. Supp. 2d at 895 (citing Marr and Montgomery in FCDPA context). Additionally, defendant ignores the fact that it initially found records of only nineteen phone calls it had made to the (312) 285-9382 number on the 91080072 account; it only discovered the twentieth phone call after plaintiff’s counsel asked defendant at its Rule 30(b)(6) deposition why plaintiff’s phone records show that she had received a phone call from defendant on October 26, 2015, but the 91080072 account history revealed no such call. (Pl.’s Dep. at 102:14-112:13.) Defendant explains this discrepancy as due to an “improper refresh of the data” (Selbitschka Decl. ¶ 27), but whatever that means, it tends to show that defendant’s records are no more conclusive or infallible than plaintiff’s memory. A reasonable factfinder could conclude that, if defendant made one mistake in searching, processing, or maintaining its data, it may have made others. Further, even if it were correct that defendant’s records somehow trump plaintiff’s testimony at the summary judgment stage (and that is not the law), defendant ignores the fact that its records can be partially reconciled with plaintiff’s testimony. . . . Furthermore, the dispute is material because twenty calls over two months are not so few and far between that they cannot constitute a violation of § 1692(d)(5), at least under the circumstances of this case. See Bruner v. AllianceOne Receivables Mgmt., Inc., 2017 WL 770993, at *2-3 (N.D. Ill. Feb. 28, 2017) (eleven phone calls over six weeks, “an average of [approximately] two calls per week[,] plausibly indicates intent to harass or annoy”). Particularly if the jury believes that [*13] defendant knew or should have known, perhaps based on the October 3, 2014 phone call, that (312) 285-9382 was not the number of the person it was trying to reach, and/or that plaintiff specifically told defendant that she was not the person defendant was trying to reach and that defendant should stop calling, it could interpret twenty calls between October and December 2015, an average of approximately 2.5 calls per week, as evidence not of a “legitimate persistent attempt to reach the plaintiff,” Carman, 782 F. Supp. 2d at 1231, but of an intent to annoy or harass plaintiff. The “general rule” is that whether the “volume and pattern of a debt collector’s calls violates the FDCPA is a jury question,” and this case warrants no exception.
The District Court also found that the calls potentially were deceptive.
Again, defendant ignores the fact that plaintiff’s deposition testimony told a different story: she testified that she spoke to defendant’s collectors on several occasions, she told them that she is not the person they were looking for, but at least one of them told plaintiff that defendant could garnish her wages. In addition to forbidding misleading representations generally, § 1692e specifically forbids debt collectors from making any “representation or implication that nonpayment of any debt will result in . . . the seizure, [or] garnishment . . . of any . . . wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.” 15 U.S.C. § 1692e(4). It also prohibits debt collectors from making any “threat to take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 1692e(5). At her deposition, plaintiff explained her theory that, having told defendant’s collectors that she was not the person they were looking for, they continued calling in hopes that she would simply pay the debt anyway just to stop them from hassling her. (Pl.’s Dep. at 124:23-125:5.) If the jury believes her, then it could find that defendant falsely represented to her [*15] that it had “the last four digits of [plaintiff’s] Social Security number” and could “just go into [plaintiff’s] account and get the money,” when in fact it had no such information or ability. (Id. at 103:23-104:14.) If the jury believes plaintiff, it could find that defendant threatened to garnish plaintiff’s wages, although it had neither the intent nor the legal right to do so. These are potential violations of the FDCPA according to the plain text of 15 U.S.C. § 1692e(4) and (5), as well as § 1692e’s general prohition of the use of “false, deceptive, or misleading representation[s] in connection with the collection of any debt.” See Lox, 689 F.3d at 825 (“[I]t is improper under the FDCPA to imply that certain outcomes might befall a delinquent debtor when, legally, those outcomes cannot come to pass.”). Defendant’s motion is denied as to plaintiff’s § 1692e claim.
Finally, the District Court found that the fact that the calls were potentially deceptive did not also prevent the calls from being “unfair”.
Defendant argues that its conduct was not unfair or unconscionable under 15 U.S.C. § 1692f because that provision is a “catchall” for conduct not otherwise covered by the FDCPA. If plaintiff’s allegations are true, then defendant’s conduct falls within the scope of § 1692d and § 1692e, and according to defendant, that means it necessarily does not fall [*16] within the scope of § 1692f. Some courts would agree with defendant that debt collection practices do not violate § 1692f if they violate other provisions of the FDCPA, see, e.g., Mills v. Turner, No. CV 15-13267-MLW, 2017 WL 3670967, at *11 (D. Mass. Aug. 25, 2017), but the Seventh Circuit is not among them. The Seventh Circuit has recognized that the same conduct can violate § 1692f as well as other provisions. See McMillan v. Collection Prof’ls Inc., 455 F.3d 754, 765 (7th Cir. 2006) (debtor who received letter accusing her of dishonesty stated claim under both §1692e(7) and f) (citing Field v. Wilber Law Firm, P.C., 383 F.3d 562, 566 (7th Cir. 2004) (debtor who received misleading letter stated claim under §1692e and f))); see also Todd, 731 F.3d at 739 (citing as “instructive” Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1517 (9th Cir. 1994), which held that “seeking a writ of garnishment when the debtor was not behind in making payments can violate § 1692f,” where debtor had also stated overlapping claims under § 1692d and e). This approach is consistent with the broad language of the statute, as the Seventh Circuit explained in McMillan, 455 F.3d at 764-65, and as the Sixth Circuit explained in Currier v. First Resolution Investment Corp. . . .Based on this discussion, and particularly on the approving citation to Fox, this Court concludes that, viewing the facts in the light most favorable to plaintiff, a reasonable jury could conlude that defendant’s conduct falls within the scope of § 1692f. For essentially the same reasons that defendant’s conduct is potentially absusive and misleading under other sections [*19] of the FDCPA, it is potentially unfair under § 1692f: a reasonable jury could conclude that, by way of harassment and false threats, defendant sought to collect from plaintiff a debt that it knew or should have known that she did not owe. Defendant’s motion is denied as to plaintiff’s § 1692f claim.