Judge Grants MSJ For Defense in FDCPA Case Over Alleged Harassment

[EDITOR’S NOTE: I didn’t realize it until I had finished writing the summary, but this ruling is from late February. While it might be a little stale, it still might present some interesting facts worth reading, and I didn’t want the time I spent writing it to go to waste. 🙂 ]

How is a collection agency to know when an individual is revoking consent to be contacted? That can be tricky sometimes, especially if the individual does not make his or her intentions known in a clear and explicit fashion. But, there are times when it can be clear that consent has not been revoked. Such is the case in Georgia, where a District Court judge has granted a defendant’s motion for summary judgment after it was sued for violating the Fair Debt Collection Practices Act because the plaintiff claimed to have made “repeated” requests that the collector stop calling him.

A copy of the ruling in the case of Merchant v. Nationwide Recovery Service can be accessed by clicking here.

The defendant made eight phone calls to the plaintiff during a seven-month span in 2017. On four of those calls, the plaintiff picked up the phone. One conversation happened in April, one in August, one in September, and the final one in October. Each of the calls was recorded by the defendant.

  • During the first call, the plaintiff said he was at work and hung up the phone.
  • During the second call, the plaintiff told the agent to contact the Department of Veterans Affairs for payment. When he was told by the agent that collection efforts could not stop while awaiting payment from the VA, the plaintiff said, “Yeah, that’s fine.”
  • During the third call, the plaintiff said he would only speak with the business to which he owed the debt.
  • During the final call, the plaintiff said he would not accept calls from collection agencies and hung up.

At that point, the plaintiff’s attorney sent a letter to the defendant requesting no further contact, a request that the defendant honored.

The plaintiff filed suit, alleging the defendant engaged in harassing behavior by making repeated calls despite his request that the calls stop.

Telling the agent to contact the Department of Veterans Affairs, hanging up the phone, and saying he would not speak with a collection agency were how the plaintiff said he revoked consent and how he was subject to harassment by the defendant. But Judge Timothy Batten, Sr., of the District Court for the Northern District of Georgia, Atlanta Division, adopted a Magistrate Judge’s report that none of the defendant’s behavior rose to the level of harassment.

“Here, the Court finds based on the totality of the circumstances that no reasonable jury could find that Nationwide’s intent was to harass, oppress, or abuse Merchant,” Judge Batten wrote. “It contacted him, on average, once a month about a debt that he admitted that he owed. It did not call him in the middle of the night, contact his relatives, or use profane language to threaten him. Instead, Merchant admits that he confirmed to Nationwide that he owed the debt, its representatives called him only a few times over a period of months, and when a representative told him that the calls would continue even if the VA was ultimately going to pay the debt, he said ‘Yea, that’s fine….’ “

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