Judge Partially Grants MSJ For Defendant in FDCPA Case Over Alleged Threats, Use of Obscene Language

A District Court judge in Florida has granted a defendant’s motion for summary judgment on most of the claims in a lawsuit accusing it of violating the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act by misrepresenting that the collector was an attorney and by using obscene and profane language during a collection call.

A copy of the ruling in the case of Rafer v. Internal Credit System, Inc., and Anytime Fitness can be accessed by clicking here.

The plaintiff had a membership with a fitness facility, but moved away. She alleged she canceled her membership via the fitness facility’s website. The facility continued to charge the plaintiff, incurring a debt that was placed with the defendant. The defendant sent a collection letter to the plaintiff, and subsequently made calls to the plaintiff to collect on the unpaid debt. During one of the calls, the collector allegedly represented itself to be an attorney and threatened legal action if a payment was not made. During the same call, the collector allegedly used “obscene and profane” language in making a demand that the debt be paid, according to the complaint. Even when the plaintiff’s mother took the phone and demanded the defendant stop contacting her daughter, the owner of the collection agency — who had placed the call — allegedly said he was an attorney, a claim he denies. But there were some basic facts that neither side could agree on, such as whether the plaintiff hung up the phone during the call with the owner of the agency and then her mother called back — which is what the plaintiff claims happened — or whether the mother took the phone from the plaintiff during the same call — which is what the defendant claims.

The plaintiff filed suit, alleging the defendant violated Section 1692d(1) of the FDPCA by threatening to sue when it had no intent to do so, Section 1692d(2) by using obscene or profane language, Section 1692e(2)(A) by misrepresenting the legal status of the debt as collectible when the plaintiff had canceled the account, and Section 1692e(3) by falsely representing itself as an attorney during the call.

Related to the count that the legal status of the debt, the plaintiff signed a contract and was therefore liable for the debt that was incurred, and Judge William Jung of the District Court for the Middle District of Florida granted the defendant’s motion for summary judgment on that claim.

Because neither side could agree on whether the owner referred to himself as an attorney, Judge Jung could not grant the defendant’s summary judgment motion on that claim.

After noting that the plaintiff probably should have sued under Section 1692e(5) instead of 1692d(1) regarding the threat to file suit, Judge Jung granted the defendant’s motion for summary judgment, ruling that there was no evidence that a lawsuit was ever threatened, just that the defendant allegedly referred to himself as an attorney and referenced a “legal matter” in a voicemail.

Regarding the alleged use of obscene and profane language, the opposing testimony from the plaintiff and the defendant and the lack of call recordings made it impossible for Judge Jung to determine who is telling the truth so he denied the defendant’s motion on that claim, adding that it is usually up to a jury to determine whether a defendant’s conduct rises to the level of being labeled as harassing or abusive.

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