Judge Partially Grants Defendant’s MSJ in FDCPA Case Over Location Information Calls

A District Court judge in New York has partially granted a defendant’s motion for summary judgment, denied the plaintiff’s motion for summary judgment in a Fair Debt Collection Practices Act case involving a pair of location information calls that were placed to the plaintiff’s mother. The ruling overturns a recommendation from a Magistrate Court judge that said the second location information call and a request from the defendant’s representative asking the mother to have the daughter call the defendant back were in violation of the FDCPA.

A copy of the ruling in the case of Raze v. Everest Receivable Services can be accessed by clicking here.

The plaintiff filed suit after the defendant contacted her mother twice in a five-day span, seeking to obtain a mailing address for the plaintiff. The representatives from the defendant both indicate at the outset that they are calling to try and locate the plaintiff, asking for a mailing address and a phone number. In both messages, the representatives leave a phone number for the plaintiff to return the call.

The Magistrate Court judge ruled that the statements made by the mother in the first call did not indicate that she was providing incomplete or inaccurate information, thus necessitating a second call. The judge also ruled that leaving messages requesting a callback violated the third-party disclosure provisions of the FDCPA.

But Judge Lawrence J. Vilardo of the District Court for the Western District of New York disagreed with the Magistrate Court judge on the third-party disclosure claim, ruling that there is “little doubt” that the purpose of the calls was to obtain the location of the plaintiff; both representatives say that at the outset of each call. “Leaving a message after the third party declines to provide contact information during a proper location-acquisition call does not violate the statute,” Judge Vilardo wrote. “Asking someone to give a message to an individual to call back when the person cannot or will not provide that individual’s telephone number is no more invasive of the individual’s privacy-and in fact is arguably less invasive-than the explicitly permitted request for the phone number. Indeed, when someone is asked for contact information that he or she has but is reluctant to provide without permission to do so, the sensible solution is to offer to relay the message for a call back.”

Judge Vilardo agreed with the Magistrate Court judge in denying the summary judgment motion on whether the second call violated the FDCPA, but also denied the plaintiff’s summary judgment motion as well.

“… a juror might well find that Everest had good reason to believe that Canova knew or could easily learn more than she was willing to share during the first call,” Judge Vilardo wrote. “She said that she could not provide any contact information for her daughter, not that she did not have that information. So a reasonable caller might well believe that Canova did not have Raze’s permission to share the contact information that Canova either had or could easily get.”

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