In Kayyal v. Enhanced Recovery Co., No. 17 CV 2718, 2019 U.S. Dist. LEXIS 161475 (N.D. Ill. Sep. 23, 2019), the District Court denied summary judgment to a debt collector who as alleged to have harassed a wrong-number customer.

Distilled to its essence, the parties disagree about whether ERC called Kayyal after being told it had the wrong number and to stop calling, violating FDCPA §§ 1692d and 1692d(5). Section 1692d states “[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” Among the specific examples of prohibited conduct set forth in the statute is “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). When assessing whether a defendant’s phone calls were harassing under § 1692d(5), “there are two types of evidence . . . . First, where a plaintiff has shown that he asked the collection agency to stop calling . . . and the 4 collection agency nevertheless continued to call the plaintiff . . . . Second, the volume and pattern of the calls may themselves evidence an intent to harass.” Kube v. Creditors Collection Bureau,Inc., No. 10 C 7416, 2012 WL 3848300, at *2 (N.D. Ill. Aug. 30, 2012). Kayyal contends that she told ERC “over 20” times, beginning in December 2016, that it had the wrong number and to stop calling her. PSOAF ¶ 8. ERC maintains that the first and only time they were told to stop calling was on March 7, 2017. Def.’s Response to PSOAF ¶ 8. This dispute presents a credibility determination that a jury, not this Court, must resolve. ERC’s argument that there is no dispute about when Kayyal told ERC to stop calling is based on an untenable reading of Kayyal’s deposition testimony. While Kayyal conceded that the March 7 call was the first and only call during which she had a conversation with anyone calling from ERC, it is clear from the balance of her testimony that she means that was the only call in which there was any significant, two-way, dialog with the caller. Kayyal’s testimony is unequivocal that she told the ERC caller(s) many times before that date (and as early as the first call that she received in December) that they should stop calling her and/or that they had the wrong number, and that either she or the caller hung up without a response from the caller. See Ex. C, Pl’s Resp. to Def’s Statement of Facts, Kayyal Dep. Tr. at 21:1-8; 22:15-20; 24:5-9; 30:16 – 31:13; 31:14 – 32:7; 32:15-21. Recognizing the problem, ERC also argues that “[a]lthough Plaintiff alleges that she told ERC that it was calling the wrong number on many occasions, Plaintiff cannot point to a specific time or date of any of the alleged calls,” and that “[t]he only “evidence” cited by Plaintiff are Plaintiff’s unsubstantiated, and contradictory “estimates” offered in her deposition.” Def.’s Reply in Supp. of Summ. J. at 6 (quotations in original).  That is true but of no import. The Seventh Circuit has repeatedly stated that self-serving testimony by the plaintiff is enough to create a genuine dispute of a material fact and that it is best left to the jury to determine the credibility of the testimony. See Marr v. Bank of Am., N.A., 662 F.3d 963, 968 (7th Cir. 2011) (“‘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.'”) (quoting Montgomery v. Am.Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010); see also Brown v. I.C. Sys., Inc., No. 16 C 9784, 2019 WL 1281972 (N.D. Ill. Mar. 20, 2019) (“[t]he fact that plaintiff’s claims rely on self-serving deposition testimony is no defect at the summary judgment stage”) (internal quotations omitted). Further, when deciding whether to grant summary judgment, the Court can only make determinations on matters of law, not determinations of witness credibility. See Omnicare, Inc. v.UnitedHealth Grp., Inc., 629 F.3d 697, 705 (7th Cir. 2011) (“district courts presiding oversummary judgment may not weigh conflicting evidence . . . or make credibility determinations . . . both of which are the province of the jury.”) (internal citations and quotations omitted). There are other material fact disputes a jury must resolve as well. The parties’ phone records, for example, do not agree as to the number and dates of calls from ERC to Kayyal. The frequency, timing, and pattern of the calls is material to a determination of whether the calls were harassing or otherwise violative of § 1692d, and therefore presents another question that a jury could reasonably resolve in Kayyal’s favor. See, e.g., Losch v. Advanced Call Ctr. Techs., LLC, No. 15 C 6644, 2017 WL 1344524, at *3 (N.D. Ill. Apr. 12, 2017) (“As a general rule, whether the volume and pattern of a debt collector’s calls violates the FDCPA is a jury question.”). In addition, were a jury to conclude that ERC’s records are no more accurate than Kayyal’s memory and records, they would also be entitled to question the credibility of ERC’s claim that it stopped calling 6 Kayyal the first time she asked them to do so. See, e.g., Brown, 2019 WL 1281972, at *8 (finding a jury could determine the defendant may have made other mistakes after the initial phone records produced were inaccurate). In Brown, the court found that the parties’ dispute over whether the plaintiff told the defendant to stop calling and the number of times that she was called was “material because [*10]  twenty calls over two months are not so few and far between that they cannot constitute a violation of § 1692(d)(5) . . . .” 2019 WL 1281972, at *9. Specifically, the Court stated that if the plaintiff “told defendant that she was not the person defendant was trying to reach and that defendant should stop calling, [a jury] could interpret twenty calls . . . as evidence . . . of an intent to annoy or harass.” Id. See alsoDecker v. Receivables Performance Management, LLC, No. 17 CV 4152, 2019 WL 1112256, at *12 (N.D. Ill. Mar. 11, 2019) (finding a jury could conclude the plaintiff asked the defendants to stopped calling but continued to call resulting in a violation of § 1692d(5)). The same is true here. A jury is entitled to credit Kayyal’s version of events, and if they do, they could reach the conclusion that the calls were made with an intent to cause harassment or abuse resulting in a violation of § 1692d(5). Accordingly, ERC’s motion for summary judgment as to 15 U.S.C. §§ 1692d is denied.