United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
issue in this case is whether a debt collector's two
phone calls to a wrong number, after learning the number was
not the debtor's, violates the Fair Debt Collection
Fox sued ProCollect, Inc., for violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et
seq., and the Arkansas Fair Debt Collection Practices
Act, Ark. Code Ann. § 17-24-501, et seq. She
also asserted claims under the Arkansas Deceptive Trade
Practices Act, which the Court previously dismissed. Document
#10. ProCollect has now moved for summary judgment on
Fox's remaining claims. Fox also filed a motion for
summary judgment approximately three weeks after the
Court's dispositive motions deadline. ProCollect moves to
strike this late motion. For the reasons that follow,
ProCollect's motion for summary judgment is granted.
Fox's motion for summary judgment, and ProCollect's
motion to strike, are denied as moot.
sought to collect a debt from a debtor whose phone number
ends in 9183.Instead, ProCollect called Fox, whose phone
number is one digit off, ending in 9182. ProCollect called
Fox's number five times from July 1, 2016 to May 10,
2017. No one at ProCollect ever spoke with Fox on any of
11, 2017, Fox called ProCollect and spoke with an individual
there for the first time. She informed ProCollect it was
calling a wrong number. One week later, on May 18, a
ProCollect collector checked its internal system which showed
the 9182 phone number as one associated with the debtor, Dale
Gray. The collector then called Fox's number and left a
voicemail for “Dale Gray.” Document #24-4 at 5.
That same day Fox again called ProCollect asking to have her
number removed from ProCollect's calling list. She stated
that she does not know anyone associated with “Dale
Gray.” She told the collector ProCollect had been
calling her for two years at “weird a** crazy a**
hours” and said “don't call me no f******
more.” Document #30-3 at 3; see also Document
#27 (voicemail recording). After this call, ProCollect placed
a “DO NOT CALL” note next to the 9182 number in
its internal system.
8, a different collector at ProCollect checked its internal
system which showed Fox's 9182 number as associated with
the debtor. See Document #24-2 at 8. Despite the
“DO NOT CALL” notation, that collector called
Fox's number without leaving a message. Fox then called
ProCollect and requested, for the third time, that her 9182
number be removed from ProCollect's system as a wrong
number. ProCollect has not contacted Fox since that day, June
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
Fair Debt Collection Practices Act generally protects
consumers from abusive debt collection practices and protects
ethical debt collectors from competitive disadvantage.
Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051,
1054 (8th Cir. 2002). Fox asserts violations of two sections
of the Fair Debt Collection Practices Act: 15 U.S.C. §
1692d, which prohibits harassment or abuse, and 15 U.S.C.
§ 1692f, which prohibits unfair or unconscionable
practices. At this stage the fighting issue boils
down to whether a reasonable jury could find that ProCollect
intended to annoy, abuse, or harass when it placed two phone
calls to Fox's number, several weeks apart, after being
told twice that it was a wrong number.
1692d prohibits a debt collector from “engag[ing] in
any conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the
collection of a debt.” 15 U.S.C. § 1692d. Section
1692d provides the following nonexhaustive list of conduct:
(1) The use or threat of use of violence or other criminal
means to harm the physical person, reputation, or property of
(2) The use of obscene or profane language or language the
natural consequence of which is to abuse the hearer or
(3) The publication of a list of consumers who allegedly
refuse to pay debts, except to a consumer reporting agency or
to persons meeting the requirements of section 1681a(f) or
1681b(3) of this title.
(4) The advertisement for sale of any debt to coerce payment
of the debt.
(5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent
to annoy, abuse, or harass any person at the called number.
(6) Except as provided in section 1692b of this title, the
placement of telephone calls without meaningful disclosure of
the caller's identity.
contends that ProCollect violated subsection (5). Whether
attempts to contact a debtor by telephone amounts to
harassment or annoyance turns on evidence regarding the
volume, frequency, pattern, or substance of the phone calls.
Kuntz v. Rodenburg LLP, 838 F.3d 923, 926 (8th Cir.
2016). Although the answer may be fact-intensive, summary
judgment is appropriate ...