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

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In Pearson v. April Healthcare Grp., 2021 U.S.Dist.LEXIS 90010 (S.D.Cal. 2021), Judge Hayes granted summary judgment to a debt collector attempting to collect a medical debt despite the availability of medical insurance. Denial of a plaintiff's motion for partial summary judgment as to the plaintiff's FDCPA claim is appropriate when "no mention of [the] plaintiff's debt was conveyed at any… Read More

In Smith v. Stewart, Zlimen & Jungers, Ltd. (8th Cir. 2021) 990 F.3d 640, the 8th Circuit Court of Appeals upheld the dismissal of consolidation actions under the FDCPA against the same debt collection law firm and declined to hold that a FDCPA claim is stated ipso facto because the debt collector lost the underlying collection action. In underlying collections actions… Read More

In Hayward v. Bank of Am., N.A., No. 2:16-cv-03047-MCE-DMC, 2020 U.S. Dist. LEXIS 60318, at *19-25 (E.D. Cal. Apr. 6, 2020), Judge England denied summary judgment in a Rosenthal Act case. In support of her Second Claim, for violation of California's Rosenthal Act, Plaintiff alleges that [*20]  BANA made harassing calls to Plaintiff and in so doing used false and unconscionable… Read More

In Allen v. Credit Collection Servs., No. 2:18-cv-00929-MCE-KJN, 2020 U.S. Dist. LEXIS 27363 (E.D. Cal. Feb. 18, 2020), Judge Englund dismissed an FDCPA claim on the basis that the call number and pattern did not constitute harassment under the FDCPA. Plaintiff maintains that, despite CCS' call logs and telephone recordings of the two actual conversations its representatives had with Plaintiff… Read More

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… Read More

In Muzyka v. Rash Curtis & Assocs., No. 2:18-cv-01097 WBS, 2019 U.S. Dist. LEXIS 111795, at *12-14 (E.D. Cal. July 3, 2019), Judge Shubb denied summary judgment to a debt collector on a call-volume case. Defendant is correct that many district courts considering Section 1692d(5) claims have granted summary judgment for defendants where there is a high volume of calls… Read More

In N.L., an infant by his mother and natural guardian Sandra Lemos v. Credit One Bank, N.A., et.al., (No. 2:17-CV-01512-JAM-DB), 2018 WL 5880796 (E.D. Cal. November 8, 2018), Judge Mendez denied Summary Judgment to a caller under the TCPA and Rosenthal Act. The facts were as follows: A customer of Credit One, D.V., provided a phone number ending in -9847… Read More

In Fleming v. Associated Credit Services, Inc., 2018 WL 4562460 (D.N.J., 2018), Judge McNulty found that a LiveVox HCI predictive dialer was not an ATDS under the TCPA. While recognizing the disparate views in the case law, I am convinced by the reasoning in Pinkus and similar decisions. I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling… Read More

In Wenzel v. National Creditors Connection, Inc., 2018 WL 1902699, at *12 (D.N.H., 2018), Judge McCafferty granted summary judgment to a debt collector on a Plaintiff's FDCPA harassment claim. The evidence in the record shows that Carrington called Wenzel’s cell phone seven times between July 28 and October 11, 2016, and never more than once on a single day. There… Read More

In Marshall v. CBE Group, Inc., 2018 WL 1567852, at *4–8 (D.Nev., 2018), Judge Navarro followed the ACA Int'l decision and, in the absence of interpretative guidelines by the FCC, applied the TCPA's "plain language". In light of this ruling, the Court will not stray from the statute's language which “mandates that the focus be on whether the equipment has… Read More

In McMillion v. Rash Curtis & Associates, 2018 WL 692105, at *4 (N.D.Cal., 2018), Judge Rodgers found that a TCPA Defendant used an ATDS during the class period. The record reflects that defendants used three dialers during the class period, namely (i) DAKCS/VIC, (ii) Global Connect, and (iii) TCN. Plaintiffs offer the testimony of Rash Curtis executives who state DAKCS/VIC and… Read More

In Rhinehart v. Diversified Central, Inc., 2018 WL 372312, at *10 (N.D.Ala., 2018), Judge Hopkins dismissed a TCPA claim and found that an FDCPA claim failed to state facts sufficient to constitute a cause of action. Note that “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any… Read More

In Montegna v. Ocwen Loan Servicing, LLC, 2017 WL 4680168, at *8–9 (S.D.Cal., 2017), the District Court found that a Rosenthal Act claim survived a statute of limitations challenge based on the plaintiff's allegation of a "continuing violation". Second, as for Plaintiff's claim under the Rosenthal Act, the applicable statute of limitations provides a plaintiff a year from an alleged violation to… Read More

In Lundstedt v. I.C. System, Inc., 2017 WL 4281057, at *2–3 (D.Conn., 2017), Judge Meyer allowed an FDCPA claim to proceed based on the call pattern alleged in the Complaint. [D]efendant argues that the alleged pattern of calls—29 calls over a period of 24 days—is legally insufficient to show an intent to annoy, abuse, or harass plaintiff as the statute requires.… Read More

In Contreras v. Portfolio Recovery Associates, LLC, 2017 WL 2964012, at *3 (N.D.Cal., 2017), Judge Corley held that discrete abusive acts were not subject to the continuing violation doctrine. The FDCPA also prohibits “causing 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.”… Read More

In Martinez v. TD Bank USA, N.A., 2017 WL 2829601, at *5–6 (D.N.J., 2017), Judge Simandle granted summary judgment in a TCPA case on the basis that the Plaintiff's fax of revocation of consent was not a reasonable method to revoke consent because Plaintiff sent the fax to the Bank, and not a fax number designed by the Bank or… Read More

In Hinderstein v. Advanced Call Center Technologies, 2017 WL 751420 (C.D. Cal. 2017), Magistrate Judge Bristow found that the number and pattern of calls to a debtor did not violate the FDCPA. Courts also have found that “[c]alling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute harassment under the… Read More

In Reddin v. Rash Curtis & Associates, 2016 WL 3743148, at *2-3 (E.D.Cal. 2016), the Court held that the FDCPA only protects third parties where the statute refers to something other than "consumers". Subsection 1692c(a)(1) generally prohibits a debt collector from communicating with a “consumer in connection with the collection of any debt...at any unusual time or place or a… 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 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

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