Judge Grants MSJ for Defendant in FDCPA, TCPA Case Over Calls to Cell Phone

In a case that was defended by Patrick Watts at Malone Frost Martin, a District Court judge in Wisconsin has granted a defendant’s motion for summary judgment after it was sued for violating the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act by placing 28 calls to the plaintiff’s cell phone during a two-month span.

A copy of the ruling in the case of Shannon v. State Collection Service can be accessed by clicking here.

The plaintiff received medical care at a healthcare facility in April 2019. Before he was treated, the plaintiff signed a consent form agreeing to receive calls via an automated telephone dialing system or delivered via artificial or pre-recorded voices from the facility or its affiliates, contractors, providers, or agents including collection agencies. The plaintiff claims he was not provided with an opportunity to review the form, but acknowledged he never asked to do so, either.

Six weeks later, the plaintiff signed another form with the facility, this time providing his cell phone number as his preferred contact number.

The account was placed with the defendant for collection. The defendant called the number 28 times in a two-month span. Only once was a call picked up, but the recipient of the call hung up the phone rather than pressing “1” on his phone to be connected to an operator.

The plaintiff eventually called the defendant and asked for it to stop calling him, which it did.

Regarding the claim that the defendant violated the TCPA, Judge William Conley of the District Court for the Western District of Wisconsin rejected the plaintiff’s argument that the cell phone number needed to have been provided during his first visit to the facility, when the transaction that resulted in the debt being owed occurred. Judge Conley also rejected the plaintiff’s claim that he was not allowed to review what he was signing before he signed it.

The plaintiff also claimed the defendant violated Section 1692d(5) of the FDCPA by engaging in harassing behavior and Section 1692f by using unfair or unconscionable means to collect on a debt.

“…the only evidence plaintiff has to support a finding of harassment under § 1692d at summary judgment is an automated call placed to the number plaintiff previously consented could be used to reach him regarding his medical debt, including by a debt collector, approximately every other day for a two-month period of time, and never more than once per day, with no messages left, the opportunity to stop the calls at any time by identifying himself, Shannon picking up the phone call on only one occasion, and the calls immediately ceasing the first time Shannon actually notified defendant that he wanted the calls to stop,” Judge Conley wrote. “Consistent with similar cases, this evidence fails to support a finding of harassment under § 1692d, including a finding of an intent to harass.”

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