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November 26, 2014 Case Digest

In Mey v. Frontier, plaintiff filed a putative class action, alleging that defendant violated the TCPA by calling her cell phone with a dialer and without consent.  After plaintiff failed to accept defendant’s offer to settle plaintiff’s individual claims for the maximum statutory damages, defendant moved to dismiss, arguing the plaintiff’s individual claims were moot.  The court denied the motion, finding that an offer of settlement, as opposed to an offer of judgment under Federal Rule of Civil Procedure 68, does not moot a claim even when it proposed to afford plaintiff everything she is asking for.

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November 25, 2014 Case Digest

In Buchholz v. Valarity, LLC, plaintiff alleged that defendant violated the TCPA by calling his cell phone with an ATDS and without consent.  After defendant produced evidence that plaintiff had consented by providing the cell number to the medical provider, plaintiff argued that the consent had been orally revoked.  The court concluded that plaintiff was able to revoke consent to be called, and that an oral revocation was effective.

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November 24, 2014 Case Digest

In Wells v. Healthcare Financial Services, plaintiff alleged that defendant violated the FDCPA by continuing to call his place of employment after plaintiff had told defendant that he was not allowed to received personal calls at work.  After the court denied defendant’s motion for summary judgment, defendant moved for reconsideration, arguing that the court had misunderstood the evidence as all calls that were made after plaintiff told defendant that he could not receive calls at work were either initiated by plaintiff, or were not answered.  The court granted the motion and entered judgment in defendant’s favor, finding that an unanswered call conveys no information concerning a debt, and therefore the unanswered calls were not communications under or in violation of the FDCPA.

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November 21, 2014 Case Digest

In Carrero v. LVNV, plaintiff alleged that defendant violated the FDCPA by attempting to collect consumer debts on purchased accounts without first registering as a collection agency under state law.  Defendant moved to dismiss, arguing that a putative violation of state law could not give rise to an FDCPA claim.  The court disagreed and denied the motion, finding that a failure to register with the state as a collection agency prior to either threatening or actually filing a  lawsuit stated a viable claim of threatening action that cannot legally be taken in violation of the FDCPA.

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November 20, 2014 Case Digest

In Szczurek v. Professional Management, plaintiff alleged that defendant’s letter series violated the FDCPA when 5 different letters stated: “To avoid further contact from this office regarding your past due account, please send the balance due to our office and include the top portion of this letter with your payment” by falsely representing that the only way to stop further collection activity was to pay the balance.  Defendant moved to dismiss, arguing that the notice was accurate because “contact” was different from further “collection activity” that could be stopped for other reasons, such as a written cease and desist request.  The court granted the motion, finding it was truthful that contact would stop if payment was received, and that the statement did not overshadow the validation rights which explained the consumer’s multiple options to respond to the letter.

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November 19, 2014 Case Digest

In Zweigenhaft v. Receivables Performance Management, plaintiff alleged that defendant violated the FDCPA after leaving a voice mail message that identified itself as a debt collector, which was coupled with a return phone call where the voice mail's intended recipient was disclosed to a third party after plaintiff's son heard the message and returned the call.  The parties filed cross motions for summary judgment, and the court entered judgment in defendant's favor, finding there was no violation because allowing debt collectors to leave voice mail messages with the minimum required disclosures was preferable to multiple hang up calls, and the debt collector acted with due care to ensure the debtor's privacy.

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Voicemail Litigation Pushing Your Buttons?

"Hi, you’ve reached voicemail.  If you are my mom, press one.  If you are my attorney, press two.  If you are a debt collector, please hang up and call me 200 times.  I’ll get back to you with a lawsuit as soon as possible.  Thank you; have a nice day!"


If voicemail’s been pushing your buttons, we’ve got a case for you!  The E.D. New York recently stated the obvious: “The FDCPA is clearly out of touch with modern communication technology.”  The FDCPA was passed in 1977 – years before voicemail was even invented!  The court went on to say leaving voicemail is not an abusive practice and it’s much better than the alternative – mysterious hang up calls.

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November 18, 2014 Case Digest

In Erez v. Chad Steur Law, plaintiff alleged that defendant violated the FDCPA by leaving voice mail messages that failed to state the mini-Miranda and by communicating directly with plaintiff after being advised that plaintiff was represented by counsel.  The parties filed cross motions for summary judgment.  Defendant argued it was not required to state it was a debt collector because plaintiff was aware that the caller was a debt collector.  The court rejected this argument, and entered judgment in plaintiff's favor because the FDCPA expressly requires the disclosures regardless of what the debtor knows.  The court did enter judgment in defendant's favor on the second claim though, finding that the continued communications directly to the represented debtor were the result of a bona fide error after defendant established that it was a clerical error contrary to established policy that caused the direct communications.

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November 14, 2015 Case Digest

In Smith v. Greystone Alliance, plaintiff filed a putative class action alleging that defendant violated the FDCPA.  Defendant served plaintiff with an Offer of Judgment, and after that was not accepted, moved to dismiss the case for lack of subject matter jurisdiction as the case had become moot.  The district court granted defendant’s motion, and plaintiff appealed.  The appellate court reversed, finding that the offer did not offer plaintiff full relief.  The court concluded by stating: “an offer that the defendant or the judge believes sufficient, but which does not satisfy the plaintiff’s demand, does not justify dismissal.”

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November 13, 2014 Case Digest

In Nigro v. Mercantile Adjustment Bureau, plaintiff alleged that defendant violated the TCPA by calling his cell phone with a  dialer and without consent.  The district court entered summary judgment in defendant’s favor, concluding that plaintiff’s providing of the number to the creditor was effective consent.  Plaintiff appealed, arguing that the telephone number was only provided to the creditor when he called to terminate his deceased mother-in-law’s electrical service, as the creditor refused to accept the discontinue notice without a telephone number.  The appellate court reversed, concluding that plaintiff was not the consumer and that the cell number was not provided in connection with the debt, because it was provided only to end the service and plaintiff would not have reasonably anticipated any follow up calls, so that the FCC’s orders on consent did not apply.

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