Judge Grants MTD on FDCPA, TCPA Case

A defendant has been granted a motion to dismiss after it was sued by a plaintiff for allegedly violating the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act by calling him after he had revoked consent to be contacted.

A copy of the ruling in Ford v. Bluestem Brands can be accessed by clicking here.

The plaintiff attempted to borrow $300 from the defendant to purchase a laptop computer. The defendant allegedly canceled the purchase, but still sought to collect on the debt. The plaintiff disputed the payment and demanded that all future communication be by mail only. The defendant continued calling for another month until it sent the plaintiff a letter, noting the revocation of consent.

The judge granted the motion to dismiss the claim that the defendant violated the FDCPA because the defendant does not meet the definition of debt collector under the statute. Because it was attempting to collect on its own debt, there can be no violation of the FDCPA, the judge ruled.

With respect to the TCPA charge, the judge ruled the plaintiff plausibly failed to state a claim. The plaintiff conceded he consented to receive calls when he applied for the line of credit to purchase the laptop, but the judge ruled that the plaintiff could not unilaterally revoke consent to be contacted, using the precedent of Reyes v. Lincoln Automotive Financial Services.

The plaintiff requested leave to amend the complaint, but the Judge denied the request, even though the plaintiff was representing himself on a pro se basis.

“The Court finds that repleading would be futile because the problems with plaintiff’s complaint are substantive, and supplementary or improved pleading would not cure its deficiencies,” Judge Vincent Briccetti wrote in his ruling.

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