Judge Grants MSJ For Defendant in FDCPA Case Over Call Volume, Revocation

In a case that was defended by the team at Malone Frost Martin, a District Court judge in California has granted a defendant’s motion for summary judgment after it was sued for allegedly violating the Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices Act after it was accused of making too many calls to the plaintiff and continuing to call after consent had been revoked, ruling the calling pattern was not harassing or abusive and the revocation of consent was likely never heard by the collector.

A copy of the ruling in the case of Moldasheva v. Hunter Warfield can be accessed by clicking here.

The plaintiff and her husband allegedly incurred a debt that was owed to their landlord, which was placed with the defendant for collection. The defendant made 29 calls to phone numbers belonging to the plaintiff and her husband between February 28 and April 6, 2020, none of which were answered. The plaintiff’s husband answered a call on April 2 and ultimately hung up on the collector. On April 6, a representative of the defendant and the plaintiff had a conversation, during which the plaintiff accused the representative of perpetrating a scam. The representative then told asked the plaintiff to hold so the agent could transfer the call to a manager. The plaintiff responded, “I don’t want to talk to you anymore. I told you, I paid,” at which point the recording ends.

The defendant then mailed documentation supporting the debt to the plaintiff. Between April 14 and April 28, the defendant made five more call. On April 21, the plaintiff’s husband asked for the defendant to stop calling him. That was the last communication between the parties.

The plaintiff filed suit, alleging the defendant violated Sections 1692d(5), 1692c(a)(1), 1692e, and 1692f of the FDCPA. After finding that the plaintiff lacked standing to pursue her 1692e and 1692f claims, Judge Stephen Wilson of the District Court for the Central District of California went to work on the other two claims.

The calling pattern used by the defendant did not rise to the level of a 1692d(5) violation, Judge Wilson ruled. “A total of 14 calls were placed to Plaintiff’s phone number from February 28 to April 28,” Judge Wilson wrote. “Only once were multiple calls placed on the same day. Only twice were calls placed on consecutive days. No calls were placed on most days during this period. Nothing about the timing or frequency of these calls indicates an intent to
abuse, harass, or annoy.”

As for the plaintiff’s argument that she revoked consent to be contacted, Judge Wilson determined there was no evidence to confirm that the representative heard the comment. The representative’s notes indicated that the plaintiff hung up after saying the defendant was trying to scam her.

“On this record, the Court finds that no rational jury could determine that Defendant met her burden to show that she effectively communicated that she did not wish to be contacted again regarding her debt during the April 6 call,” Judge Wilson wrote. “A jury would have to speculate to find otherwise. As explained above, there is no indication from the call itself or Defendant’s file that the collections agent even heard Plaintiff’s statement. The statement came just as the collection agent said, ‘Hold on, I’m gonna get you over to a manager.’ This happened during a contentious portion of the call after Plaintiff had accused the agent of doing something improper for a third time. Plaintiff points to no evidence in the record regarding Defendant’s policies or phone systems that would give a jury a single fact from which to infer that Defendant remained on the line to hear Plaintiff’s last sentence.”

Even if the agent had heard the request, the defendant was not bound under the FDCPA to honor it, Judge Wilson ruled, because the request was not made in writing. The calls made after the revocation was allegedly made — five calls over two weeks — “does not create a genuine issue as to the requisite intent regardless of whether an oral request to stop calling was effectively made,” Judge Wilson wrote.

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