Judge Rules Defendant Should Have Taken Plaintiff’s Cancer Diagnosis Into Account When Calling About Unpaid Car Loan

A federal judge in New York has denied a motion for summary judgment filed by a defendant in a Telephone Consumer Protection Act lawsuit, ruling that the claim survives the death of the plaintiff and that the defendant’s knowledge of the plaintiff’s diagnosis of terminal cancer potentially caused an intentional infliction of emotional distress.

A copy of the ruling in Sharp v. Ally Financial can be accessed by clicking here.

The plaintiff financed the purchase of a car with the defendant. About a year after the car was purchased, the plaintiff was diagnosed with stage four cancer. The plaintiff was no longer able to work and relied on Social Security disability payments to survive. The plaintiff subsequently fell behind on his loan payments to the defendant and notified the defendant of the circumstances surrounding the delinquency. The cancer spread to the plaintiff’s brain and he called the defendant to negotiate a payment arrangement, telling the defendant he was undergoing chemotherapy and radiation treatments. The plaintiff claims the defendant called every day and threatened to repossess the vehicle, which he used to go back and forth to the hospital for his treatments.

The plaintiff filed a complain with the New York State Attorney General, claiming he received 24 calls in an 80-minute span on one day. The calls began to subside and the defendant sent a letter to the plaintiff, apologizing for the number of calls he had received.

The defendant filed a summary judgment motion, arguing that the claim is no longer valid because the plaintiff died, and that the claim of intentionally inflicted emotional distress should be dismissed because even though he was called a lot, the plaintiff was never verbally abused or otherwise threatened by the defendant.

Because the TCPA is a remedial statute, and because the law was enacted to “redress individual wrongs,” the judge in this case ruled that the TCPA claim is not abated by the death of the plaintiff and denied the defendant’s motion for summary judgment on that claim.

With respect to the claim of intentional infliction of emotional distress, the judge ruled that the plaintiff should have the right to depose witnesses that could speak to his emotional distress and to obtain a medical expert who may link the calls received from the defendant to his emotional distress and physical symptoms.

Although Defendant’s representatives did not use threatening or vulgar language. Plaintiff was advised that he would lose his automobile if he did not make timely payments. In other words. Defendant’s representatives threatened to seize Plaintiffs means of travel for the necessary treatment of his terminal cancer. Defendant was allegedly aware of Plaintiff s vulnerable condition and of the emotional impact its calls were having upon Plaintiff, and yet it continued to call Plaintiff numerous times a day.


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