Effective, Experienced, Exceptional.

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

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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

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