CEB Prac. Guide § 2A.33 -- Communications with the Debtor -- Harassment, Abuse, and Threats

In Haysbert v. Navient Solutions, Inc., 2016 WL 890297, at *8-9 (C.D.Cal., 2016), Judge Gutierrez denied a TCPA Plaintiff's motion for summary judgment, saying that the Plaintiff consented to receive calls to a cell number provided post-origination and during origination. Plaintiff's interpretation, moreover, would lead to the odd outcome that a defendant would be protected by a phone number voluntary… Read More

In Schwartz-Earp v. Advanced Call Center Technologies, LLC, 2016 WL 899149, at *1-2 (N.D.Cal., 2016), Magistrate Judge James denied summary judgment to a debt collector under the FDCPA, but granted summary judgment against the Plaintiff on her TCPA/common law claims. The facts were as follows: On or about February 3, 2014, Plaintiff applied in-store for a JCPenney-branded credit card, issued… Read More

In Litt v. Portfolio Recovery Associates LLC, 2015 WL 7351781, at *7-8 (E.D.Mich. 2015), Judge Borman found that the debtor had standing, and a valid claim, to sue for 200+ "wrong number" calls to the debtor's parents, even if most of them went unanswered.  The District Court found that the Plaintiff should be entitled to summary judgment on his claim for violation… Read More

In Snyder v. Nationstar Mortgage, LLC, 2015 WL 7075622, at *7-8 (N.D.Cal., 2015), Magistrate Judge Corley allowed a FCRA/Rosenthal Act claim past the pleadings stage.  As to the FCRA claim, the Court found that the question of FCRA accuracy is determined past the pleadings stage. To state a claim under the FCRA against...a furnisher of credit information, the [p]laintiff must allege that… Read More

In Lewis v. Portfolio Recovery Associates, LLC, 2015 WL 5672650, at *8-9 (M.D.Tenn.,2015), Judge Haynes granted summary judgment to an FDCPA defendant on the basis that mere volume of collection calls, without more, did not constitute harassment. Defendant called Plaintiff only nineteen times after May 1, 2012. (Docket Entry No. 37–3 at 30–32). Although Plaintiff disagrees “wholeheartedly” with Defendant's phone records,… Read More

In Gonzalez v. FMS, Inc., 2015 WL 4100292 (N.D.Ill., 2015), Judge Castillo dismissed an FDPCA claim premised on the debtor's account numbers being visible on envelope in which the dunning letter was sent. Considering Section 1692f(8) in context and in light of the purposes of the FDCPA, it is clear to this Court that the provision was only intended to prohibit… Read More

In Herrera v. AllianceOne Receivable Management, Inc., 2015 WL 3796123, at *1 (S.D.Cal.,2015), Judge Moskowitz found that a debt collector's collection of traffic fines from the wrong person were not protected by the litigation privilege, but were not subject to the Rosenthal Act. Defendant was assigned to collect several unpaid traffic fines by the San Diego County Superior Court assessed against Gilberto… Read More

In Gomez v. Oxford Law, 2015 WL 58766 (M.D.Pa. 2015), Judge Munley held that conflicting language in the TCPA and FDCPA as to when, during a voicemail message, the caller must identify itself can not be exploited to state a claim under the FDCPA. Plaintiff contends section 1692e(5) prohibits two distinct types of conduct: (1) threats to take action that… Read More

In Wells v. Healthcare Financial Services, LLC, 2014 WL 6474276 (S.D.Miss. 2014), Judge Starrett held that unanswered calls are not “communications” within the meaning of the FDCPA. Section 1692a(2) defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). At least one district court has held that… Read More

In Cokeley v. Midland Credit Management, Inc., 2014 WL 5341919 (D.Kan. 2014), Judge Lungstrum granted summary judgment to a debt collector on an FDCPA claim grounded in harassment. The Court first concludes that defendant cannot have violated Section 1692d(5) because it did not call plaintiff “repeatedly or continuously.” Defendant called plaintiff for the first time on September 7, 2013, and… Read More

In Buchholz v. Valarity, LLC, 2014 WL 2882504 (E.D.Mo. 2014), Judge Adelman denied summary judgment to the parties in a TCPA/FDCPA telephonic harassment case. The District Court found that Plaintiff’s allegation that he did not know whether he provided his cellular telephone number to the Defendant was sufficient to defeat summary judgment. Defendant first argues that no genuine issue of… Read More

In Johnson v. Stephens & Michaels Associates, Inc., 2014 WL 2506253 (N.D.Ohio 2014), Judge Gaughan found no violation of the FDCPA where a  message was left on an answering machine but no third party heard it. For the following reasons, the Court agrees with defendant that summary judgment must be granted.  ¶  15 U.S.C. § 1692c(a)(3) specifically prohibits communication by… Read More

In Little v. Portfolio Recovery Associates, LLC, 2014 WL 1400660 (D.Kan. 2014), Judge Martin denied in part and granted in part a debt collector’s Motion to Dismiss an FDCPA claim based upon call frequency.  Judge Marten detailed the law on the number of calls permitted and/or permitted per day, and found that, at the Motion to Dismiss stage, the Plaintiff… Read More

In Huizar v. Mandarich Law Group LLP, 2013 WL 4209050 (C.D.Cal. 2013), a law firm was sued arising out of collection on an unpaid debt for the purchase of an engagement ring.  The facts were as follows: Huizar purchased an engagement ring on credit from a now-defunct jewelry store. Compl. ¶ 21. Plaintiffs allege that defendant engaged in debt collection activities… Read More

In Neu v. Genpact Services, LLC, 2013 WL 1773822 (S.D.Cal. 2013) granted in part and denied in part a debt collector’s summary judgment motion brought against a debtor’s FDCPA harassment claim.  The facts were as follows. Genpact is a debt collector as defined by the Fair Debt Collections Practices Act (“FDCPA”) and California Rosenthal Fair Debt Collection Practices Act (“Rosenthal… Read More

In Basich v. Patenaude & Felix, APC, 2013 WL 1755484 (N.D.Cal. 2013), Judge Davila explained – and limited – the “continuing violation” exception to the FDCPA’s and Rosenthal Act’s statute of limitations, found no harassing conduct for merely calling a debtor after they said to stop, and refused to apply vicarious liability against a Creditor under the Rosenthal Act. In… Read More

In Crockett v. Rash Curtis & Associates, --- F.Supp.2d ----, 2013 WL 1010492 (N.D.Cal. 2013), Judge Alsup found that continuing to call after being put on notice from the answering machine message that it was the wrong person could constitute intent to harass. Similarly here, it is reasonable to infer that Rash Curtis very likely received notice from the contents… Read More

In Nigro v. Mercantile Adjustment Bureau, LLC, 2013 WL 951497 (W.D.N.Y. 2013), Judge Skretny granted summary judgment to a debt collector on Plaintiff’s FDCPA and TCPA claims. As to the FDCPA claim, Judge Skretny found no actionable telephonic harassment. Defendant correctly asserts that, under the circumstances of this case, the 72 phone calls in a nine-month period are insufficient as… Read More

In Lopez v. Professional Collection Consultants, 2013 WL 708701 (C.D.Cal. 2013), Judge Gutierrez found Defendant’s call volume, without more, to be FDCPA compliant. Defendant asserts that Plaintiff has failed to put forth evidence that the call volume violates the FDCPA under section 1692d(5). Mot. 2:14–21. Plaintiff's allegations regarding the frequency of Defendant's calls do not rise to the level of… Read More

In Moore v. CCB Credit Services, Inc., 2013 WL 211048 (E.D.Mo. 2013), Judge Sippel found no actionable FDCPA harassment, but held the matter over for trial on the issue of consent and charges for calls under the TCPA.  The District Court found that the number of calls did not amount to actionable harassment: It is undisputed that CCB made 65… Read More