Foundation of Business Records Matters: District Court (Ind.) Says Discrepancies in Debt Collector’s Call Logs, Read in Concert with Plaintiff’s Testimony, Defeats Summary Judgment

Scott attempts to cast doubt on the reliability of Monterey’s records of the call history by presenting evidence of the omission of a call to Scott on October 21, 2015.¹[DE 27 at 2; DE 27-3 at 166.] Scrambling to recover from this error, Monterey tells me that the call was “accidentally deleted due to a technical issue” and hopes to demonstrate that it was the only possible such error. [DE 28-1 at 1-2, 4.] To that end, Monterey has filed 1382 pages of records subpoenaed from T-Mobile, itemizing phone calls to and from Scott’s phone from August 29, 2015 to June 6, 2017. [DE 27-3.] Monterey claims to have conducted a comparison between its call records and Scott’s T-Mobile records to confirm that the October 21, 2015 call was the only one missing from Monterey’s internal records for Scott’s account. [DE 28-1 at 2.] But the subpoena to T-Mobile sought phone records beginning December 1, 2013, so why do the T-Mobile records Monterey filed with the court date only from August 29, 2015? [DE 27-2 at 6.] Because of that limitation of the T-Mobile records, the summary comparison Monterey has submitted omits the December 18, 2014 call (the other recorded conversation that has been provided to the court), as well as 34 other telephone calls Monterey’s records indicate it placed to Scott prior to August 29, 2015. [Id. at 4.]  These discrepancies provide some basis for doubting the conclusiveness of Monterey’s assertions about its call history with Scott. But even more significant than questions about the number and date of calls is Scott’s dispute about the nature and content of her conversations with Monterey. Monterey asserts that, of the more than 60 phone calls reflected in its account ledger, the only actual conversation with Scott occurred on December 18, 2014, the first time such a call was attempted. [DE 16-2 at 1.] But there is evidence to the contrary: Scott’s affidavit (filed with her complaint) contains representations that, if true, indicate that there were other conversations between the parties. Scott has attested: “I have told Monterey that I was disputing the debt and to stop contacting me on at least three occasions.” [DE 1-1 at ¶10.] Scott’s affidavit also claims that “Monterey’s representatives have threatened me a number of times with statements like, ‘You can go to jail,’ ‘Charges will be pressed,’ and ‘We will come to your house.’ ” [Id. at ¶13.] Together, these sworn statements and the discrepancies in Monterey’s accounting of its phone calls to Scott create material disputes of fact concerning the number and timing of Monterey’s calls to Scott as well as the conduct of Monterey’s representatives during those calls.