Judge Grants MSJ for Defendant in FDCPA Case Over Calls to Plaintiff’s Wife

A District Court judge in Illinois has granted a defendant’s motion for summary judgment and denied a similar motion from a plaintiff in a Fair Debt Collection Practices Act case, ruling that 12 calls placed during a three-week period does not rise to the level of harassing or abusive behavior.

A copy of the ruling in the case of Ross v. Financial Asset Management Systems can be accessed by clicking here.

The plaintiff’s husband allegedly incurred a student loan debt that was placed with the defendant for collection. The defendant contacted the plaintiff about 12 times during a three-week period, having short conversations with the plaintiff — where the plaintiff informed the defendant’s representative that the number was “not appropriate” to reach her husband — twice. The plaintiff’s husband, Paul Camarena, who received a validation notice from the defendant, sent two emails to corporate officers of the defendant disputing the debt, even though there were no email addresses included in the validation notice.

The plaintiff filed suit, alleging the defendant violated Sections 1692g(b), 1692d, and 1692d(5) of the FDCPA. On the 1692g(b) claim, Judge Thomas M. Durkin of the District Court for the Northern District of Illinois, made short work of the plaintiff’s argument, because the plaintiff did not meet the definition of “consumer” under the FDCPA. Under 1692g(b), it’s the consumer who is harmed if the collector continues to collect after a debt has been disputed, and a non-consumer is not able to dispute a debt on behalf of the individual who receives the validation notice.

As for the 1692d and 1692d(5) claims, there wasn’t much to convince Judge Durkin that the defendant engaged in harassing or abusive behavior.

“Only once did Ross receive two calls in a single day, and both went unanswered,” Judge Durkin wrote. “Furthermore, the two times a FAMS employee spoke to Ross, they simply asked to speak to Camarena. Those calls were short and there is no evidence that the collector used obscene or abusive language or attempted to disparage Ross or Camarena. Moreover, the calls were not to an employer, where collection calls may have a greater prejudicial impact. And while Ross twice told FAMS that Camarena was unavailable at her number, she agreed to pass on a message to him, and never told FAMS to stop calling her. Finding that this course of conduct had the ‘natural consequence’ of harassing Ross, let alone the intent to do so, would effectively outlaw routine operations of debt collectors. This is not what Congress intended when it enacted the FDCPA.”

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