Judge Partially Grants, Partially Denies MSJ in FDCPA, TCPA Case Against Collector

A collection agency has had a motion for summary judgment granted in part and denied in part after it was accused of violating the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act by allegedly calling an individual 297 times in 150 days and sending a collection letter to the wrong address.

A copy of the ruling in Decker v. Receivables Performance Management can be accessed by clicking here.

The plaintiff had an unpaid satellite TV debt that was placed with the defendant. The defendant allegedly placed nearly 300 calls in five months, usually between 11am and 8pm during the work week, and when a call was picked up — which may have happened as few as six times — the defendant waited until the next day to resume calling. The defendant also sent a collection letter to an address provided by the plaintiff, but the plaintiff claimed never to have received it. The plaintiff never revoked consent to be contacted on any of the six calls recorded by the defendant, although she claimed to have revoked consent in other conversations. The plaintiff also said she wasn’t paying attention when she confirmed her address during a conversation with the defendant. But the address included an apartment number, but the plaintiff’s address does not have an apartment number.

The plaintiff requested dismissal of two counts — one that alleged a violation of the TCPA and one that alleged a violation of the Illinois Consumer Fraud and Deceptive Practices Act. The defendant sought summary judgment on the remaining FDCPA allegations. The defendant was accused of violating Section 1692d(5) of the FDCPA and 1692g of the FDCPA.

Because the FDCPA only requires a collector to prove that a letter was sent — not that it was necessarily received — the judge granted summary judgment on the count that the defendant violated Section 1692g of the FDCPA by not sending an initial communication.

However, with respect to the allegation that the defendant violated Section 1692d, the judge did not grant the summary judgment motion. Section 169d of the FDCPA lists conduct that constitutes harassment during the collection of a debt, including subsection (5), which states:

Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

The defendant said it did not intend to harass, but the plaintiff claimed the calls caused her to “go into a panic mode” because she had a grandmother who was ill. The calls exacerbated the plaintiff’s hypertension and anxiety, she said in answers to interrogatories, and was enough for the judge not to grant summary judgment.

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