In Istre v. Miramed Revenue Group, LLC, 2014 WL 4988201 (E.D.Mo. 2014), Judge Barton held that when a debtor tells the debt collector that she is represented by counsel, the debt collector has to stop the call. The facts were as follows:
According to plaintiff’s factual allegations, the following occurred. Plaintiff, a “consumer” for pur-poses of the FDCPA, resides in Missouri and has debts for medical services he received. (Doc. 7 at ¶¶ 4–5.) In mid-June 2014 plaintiff retained an attorney to represent him regarding his debts, including those which defendants are attempting to collect from him. (Id. at ¶ 15.) Shortly after retaining legal counsel plaintiff phoned defendant MRG to ask about the debt and to inform MRG that he had retained counsel regarding the debts MRG was trying to collect. (Id. at ¶ 17.) At the beginning of this phone call plaintiff told MRG he had retained counsel for this debt. (Id. ¶¶ 19–20.) MRG did not end the call at this point, but rather asked plaintiff, “why are you having a lawyer involved in this?” (Id. at ¶ 23) Plaintiff repeated that he hired counsel with respect to this debt, to which MRG responded “So how are you going to go about this?” (Id. at ¶ 24–25.) MRG also asked plaintiff to set up a payment plan and again asked why he had retained counsel. (Id. at ¶ 27–28.) Only after plaintiff stated again that he had retained counsel regarding his debt did MRG request the lawyer’s contact information, which plaintiff provided immediately. (Id. at ¶¶ 29–31.)
The District Court found that Plaintiff stated a claim under the FDCPA.
Defendants argue that, by initiating the call to MRG, plaintiff consented to the ensuing discussion about his debt, citing the introductory phrase of § 1692c(a): “Without the prior consent of the consumer given directly to the debt collector….” 15 U.S.C. § 1692c(a). ¶ The court agrees with plaintiff that the mere fact he initiated the phone call is not conclusive that he thereby consented to the debt collector saying to plaintiff what plaintiff alleges. Without that consent by plaintiff, once notified that he has legal representation, defendants may only ask for the attorney’s contact information before ending the call. See Robin v. Miller & Steeno, P.C., No. 4:13 CV 2456 SNLJ, 2014 WL 3734318 at *2 (E.D.Mo. July 29, 2014). . . .This district court in Robin considered that plain-tiff initiated the call, but stated that after inquiring about a bankruptcy case number, the defendant should have ended the call immediately. 2014 WL 3734318 at *2. The plain language of the statute confirms this interpretation. . . The facts alleged by plaintiff state a claim to relief under § 1692c that is plausible on its face. . . Plaintiff argues that the repeated statements by defendants regarding his hiring of a lawyer and the alleged insistence on payment or the making of a payment plan were harassing, oppressive or an abusive method to collect the debt. Whether or not these alleged statements are sufficient is an issue of fact assessed through the lens of an unsophisticated consumer by the trier of fact. The court concludes plaintiff has sufficiently plead facts that meet the Twombly standard regarding a violation of § 1692d. The motion to dismiss is denied as to the § 1692d claim.