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

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District Court (Cal.) Says Calls Did Not Constitute Harassment under the FDCPA

by Scott J. Hyman |

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

District Court (Ill.) Says FDCPA Plaintiff Can Unilaterally Claim that She Told Debt Collector to Stop Calling In Order to Defeat MSJ

by Scott J. Hyman |

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

District Court (Cal.) Says Call-Volume FDCPA Case Better Left for the Jury

by Scott J. Hyman |

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

District Court (Cal.) Says Creditor Can Be Vicariously Liable for TCPA-Violating Calls Under Apparent Agency Theory; Says Unanswered Calls Can Violate the Rosenthal Act

by Scott J. Hyman |

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

District Court (N.J.) Finds Predictive Dialer Was Not an ATDS under the TCPA; Says Question of Fact, However, Whether Call Volume/Pattern Violated FDCPA

by Scott J. Hyman |

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

District Court (N.H.) Says Call Pattern and Volume Were Insufficient to Constitute FDCPA Harassment Claim

by Scott J. Hyman |

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

District Court (Nev.) Follows ACA Int’l and Tosses TCPA Case; Says Part of FDCPA Harassment Claim May Proceed

by Rebecca Snavely Saelao |

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

District Court (Cal.) Says Defendant Used ATDS’s During Class Period; Addresses Whether Calls Were “Too Many” Under the FDCPA/Rosenthal Act; Says Medical Debt Was a “Consumer Credit Transaction” Because Debtor Was Given “Time to Pay”

by Scott J. Hyman |

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

District Court (Ala.) Says TCPA Violation Alone Is Insufficient to Support an FDCPA Claim, and 34 Calls in 64 Days Is Not Harassment

by Scott J. Hyman |

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

District Court (Cal.) Says Phone-call Based Rosenthal Act Claim Survives SofL Under Continuing Violation Doctrine; TCPA Claim Not Stayed Pending ACA Int’l Because of Existence of Non-TCPA Claims in the Complaint; Negligence Claim Fails Because Debt Collector Owes No Duty of Care to a Debtor

by Scott J. Hyman |

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

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