Judge in FDCPA Case Questions Why Defendant Kept Calling if Plaintiff Never Answered The Phone

A District Court judge in California has partially granted and partially denied motions for summary judgment filed by a defendant accused of violating the Fair Debt Collection Practices Act by making excessive calls after she had allegedly revoked consent to be contacted.

A copy of the ruling in the case of Muzyka v. Rash Curtis & Associates can be accessed by clicking here.

The defendant was attempting to collect an unpaid medical debt from the plaintiff. The defendant was accused of making more than one call per day on multiple occasions. While the plaintiff claimed to have revoked consent to be contacted, the defendant countered that it was never able to make contact with the plaintiff. The plaintiff also contended that the defendant threatened to sue the plaintiff if the debt was not paid, but did not follow through on its threat, while the defendant argued it could have never made such a threat because it never spoke with the plaintiff.

While the plaintiff was unable to recall the substance of any of her conversations with the defendant, her inability to “remember exactly when she told defendant to stop calling her does not fatally undermine the credibility of her evidence,” wrote Judge William Shubb of the District Court got the Eastern District of California. The defendant’s call logs showed “dozens” of calls as “answered” and durations of those calls lasting as long as 84 seconds. Judge Shubb wrote, but the defendant contended that having the calls marked as “answered” does not prove it actually spoke with the plaintiff.

“The court agrees that, when viewed in the light most favorable to the non-moving party, defendant’s call logs could be interpreted as corroborating plaintiff’s contentions.,” Judge Shubb wrote in denying the motion for summary judgment on the claim the defendant violated Section 1692d of the FDCPA.

Judge Schubb also denied the motion for summary judgment on the claim the defendant violated Section 1692d(5) of the FDCPA by making an excessive amount of calls to the plaintiff.

It is true that in the instant case, plaintiff provides no evidence that defendant called her at an inconvenient location or at inappropriate hours. Nor are there allegations or evidence that defendant used abusive language. There is simply the volume, extent, and frequency of defendant’s calls, which occurred between 2015 and 2017, at most 90 in a year, and sometimes more than once in a single day. Perhaps defendant’s first and second calls to plaintiff were made purely with the intent to reach plaintiff to collect the debt. But was the eightieth? The hundredth? The hundred and twentieth? In the view of this court, these circumstances give rise to a genuine disputed issue of material fact as to defendant’s intent that is not appropriately resolved at the summary judgment stage. If, as defendant maintains, it never made contact with plaintiff, why did it persist in calling her after dozens and dozens of unanswered calls? Plaintiff’s theory — that defendant engaged in this conduct because it intended to grind her down, harass and oppress her with the sheer volume and incessance of its calls — is no less plausible than defendant’s explanation that it called merely to collect the debt. As such, there is a genuine dispute as to the material fact of whether or not defendant called plaintiff with the intent to harass, abuse, or oppress her.

The judge did grant the defendant’s motion for summary judgment on the claim that it violated Section 1692f of the FDCPA by using unfair or unconscionable means to collect on a debt.

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