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Fox v. Procollect, Inc.

United States District Court, E.D. Arkansas, Western Division

January 30, 2019




         The 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 Practices Act.

         Jennifer 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.

         ProCollect sought to collect a debt from a debtor whose phone number ends in 9183.[1]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 those calls.

         On May 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.

         On June 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 8, 2017.

         A court 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. Id.

         The 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.[2] 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.

         Section 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 any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(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.

         Fox 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 ...

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