Judge Grants MSJ for Defense in FDCPA, TCPA Case Over Wrong Number Calls

A District Court judge in Rhode Island has granted a defendant’s motion for summary judgment after it was accused of violating the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act accidentally by calling the wrong individual between 12 and 18 times during a two-month span, ruling that because the plaintiff never informed the defendant that it had the wrong number or asked it to stop calling the defendant was not engaging in harassing behavior.

A copy of the ruling in the case of Laccinole v. Rausch, Sturm, Israel, Enerson & Hornik can be accessed by clicking here.

The defendant was attempting to contact someone with no relation to the plaintiff, but the plaintiff never asked the defendant to stop calling or informed the defendant that it had the wrong number. The plaintiff even went as far as to send the defendant a letter, after he received the first call from the defendant, disputing the debt and asking the defendant to stop calling him.

The plaintiff accused the defendant of using an automated telephone dialing system to place the callsm in violation of the TCPA. But the defendant submitted information about the technology it uses to places its calls and that was enough for Judge Mary S. McElroy of the District Court for the District of Rhode Island to determine that it did not use an ATDS to make its calls.

With respect to the FDCPA claims, none of the calls were made at unusual hours and the volume of calls over the span in question should not be considered harassing, Judge McElroy ruled. The fact that the defendant was never informed it had the wrong number or was calling the wrong individual buttressed its defense, the judge noted. The plaintiff also failed to meet the definition of consumer under the FDCPA because the defendant never alleged the plaintiff owed a debt — a fact that the plaintiff confirmed in an affidavit he submitted.

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