Agency Wins Summary Judgment in FDCPA Case; Was Accused of Harassment By Calling Wrong Number

Making two wrong number calls after being told by an individual that a collection agency had the wrong number does not rise to the level of a violation of the Fair Debt Collection Practices Act, a District Court judge in Arkansas has ruled in granting a motion for summary judgment in favor of the defendant.

A copy of the ruling in Fox v. ProCollect can be accessed by clicking here.

The defendant was seeking to reach an individual whose phone number ended in 9183. Instead, the defendant contacted the plaintiff, whose phone number ended in 9182. During a 10-month period, the defendant called the plaintiff’s phone number five times, but the plaintiff never picked up the phone. On the sixth call, the plaintiff picked up and informed the defendant that it had the wrong number. A week after that call, the defendant called the plaintiff again, this time leaving a voicemail for the intended recipient, Dale Gray. The plaintiff called back and, using some vulgar language, asked the defendant to stop calling her. The defendant placed a “do not call” note on the account. Despite the notation, the defendant called the plaintiff one more time, but did not reach the plaintiff and did not leave a message. The plaintiff called the defendant again, and asked not to be contacted.

The plaintiff filed suit, alleging the defendant violated Section 1692d(5) of the FDCPA, which prohibits collectors from engaging in phone calls or conversations that repeatedly or continuously intend to harass or annoy an individual.

The issue at hand is whether the calls, both before and after the defendant was asked to stop calling the plaintiff’s number, as well as the one voicemail, rise to a violation of the FDCPA. Judge J. Leon Holmes from the District Court for the Eastern District of Arkansas, Western Division, ruled it did not.

“These actions are a far cry from the type of conduct Congress held up as harassment or abuse in § 1692d,” Judge Holmes wrote in his ruling. “Repeatedly calling a number despite being told that number is incorrect would at some point, perhaps, cross a line from merely intending to carry out legitimate collection efforts to intending to harass. But the Court does not draw that line in this case. In any event, the facts here do not give rise to such an intent. Even the courts that have denied summary judgment partly based on continued phone calls to a wrong number did so under more egregious facts than those present here.”

The plaintiff also alleged the defendant violated Section 1692f of the FDCPA, which prohibits using unfair or unconscionable means to collect a debt, but the defendant argued that if it did not violate Section 1692d, then it could not have violated Section 1692f. But the judge ruled that claims failed on its merits.