Judge Grants MSJ for Defendant in FDCPA Case Over Use of ‘Need’ in Message

A District Court judge in Illinois has granted a defendant’s motion for summary judgment after it was sued for violating the Fair Debt Collection Practices Act because a representative said that the plaintiff “needs to call us back” during a phone conversation, and that the statement was false, deceptive, or misleading.

A copy of the ruling in the case of Wilson v. AFNI can be accessed by clicking here.

A representative of the defendant called the plaintiff on her cell phone while she was at work. The call lasted all of 62 seconds. Here is a transcript:

AFNI: Hello, good morning. This call may be recorded. I’m looking for Latavia Wilson.

Wilson: May I ask who is speaking?

AFNI: My name is ****** and I do have a personal matter to discuss. Am I speaking … with Latavia?

Wilson: Uh, no, but can I take a message?

AFNI: All right, thank you so much for that. Uh, just kindly inform her that AFNI called regarding a personal matter we need to discuss, and kindly inform her also that she needs to call us back in her most convenient time. The call-back number is in the caller ID which is 877-428-0-

Wilson: Can I ask that the number be removed from your calling list?

AFNI: Oh sure, no worries, I’ll be removing your phone number in a list.

Wilson: Alright.

AFNI: [SPEAKING OVER WILSON] But I’m expecting umm Latavia’s callback.

The plaintiff said she became “nervous,” “scared,” and “overwhelmed” and had a hard time concentrating while at work. Later that day, she contacted the number, but hung up as soon as she heard the greeting stating the name of the original creditor.

The plaintiff filed suit, alleging the defendant violated Section 1692e of the FDCPA.

In filing for summary judgment, the defendant argued that the plaintiff lacked standing and that the statement “needs to call us back in her most convenient time” was not materially false or materially misleading. Judge Joan H. Lefkow of the District Court for the Northern District of Illinois agreed with the defendant on both counts.

Temporary emotional discomfort and an unexplained “appreciable risk to her employment” are not enough for the plaintiff to have standing to sue, Judge Lefkow ruled. The plaintiff also stated she had to work late on the day called the defendant back, which resulted in additional childcare costs. But the assertions made by the plaintiff were too vague and lacking in detail — she never stated how long it took to make the call, nor the amount of childcare expenses she incurred, nor how making the call caused her to stay so late as to incur these expenses where, admittedly, she hung up as soon as she realized it was the creditor — to have standing.

Even if she did have standing, the defendant would be entitled to summary judgment on the merits, Judge Lefkow noted.

“Read in context, the AFNI employee used polite language to say that AFNI would like to get in touch with Wilson and asked that Wilson call back at the ‘most convenient time,’ ” Judge Lefkow wrote. “Moreover, to the extent there is even a hint of insistence in the word ‘need,’ colloquial terms of urgency in and of themselves, do not support a § 1692e claim.”

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