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March 25, 2015 Case Digest

In Gonnella v. Delbert Services, plaintiff alleged that defendant violated the TCPA by calling her cell phone after she had verbally withdrawn consent to be called with a dialer.  Defendant moved to dismiss, arguing that consent, once given, cannot be withdrawn.  Though recognizing the split in opinions, the court determined that consent under the TCPA could be withdrawn orally, owing to the purpose of the TCPA and intention to protect consumers and avoid unwanted calls.

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March 24, 2015 Case Digest

In Etro v. Blitt & Gaines, plaintiff alleged that defendant violated the FDCPA by instituting a garnishment action against plaintiff's employer in a judicial district where plaintiff did not live.  Defendant filed a motion to dismiss, arguing that it satisfied the FDCPA's venue requirements.  The court granted the motion, finding that the garnishment action was targeted to the employer and not the consumer, so that it was not required to be filed where plaintiff resided.  Underlying the reasoning of the court was the practical reality that the action needed to be filed where the employer was located because no other court would have had jurisdiction over the employer.

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March 23, 2015 Case Digest

In Hanson v. HSBC Bank, plaintiff alleged that defendant violated the FDCPA by filing a proof of claim and serving a copy of the pleading on the consumer directly, when defendant knew plaintiff was represented by an attorney in the bankruptcy case.  Defendant moved to dismiss, arguing that the serving of a pleading directly to the consumer was permitted by the bankruptcy rules and did not violate the FDCPA.  The court agreed, finding that the serving of the pleading was not a communication of the type for which the FDCPA was concerned.

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March 19, 2015 Case Digest

In Thrasher v. CMRE Financial, plaintiff filed a putative class action under the TCPA and during discovery, requested production of defendant's outbound dial list and evidence of consent for calling the numbers on that list, including skip trace reports.  Defendant resisted the production, arguing that a responsive list did not exist, that any list that was possibly responsive would need to be created, though it would include unrelated calls, and because the proof of consent was maintained by non-parties (the creditors).  The court overruled these objections, and ordered defendant to produce the outbound dial list and the evidence of consent, if any, even if defendant had to get the evidence from the creditors. 

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March 17, 2015 Case Digest

In Rhodes v. Olson Associates, plaintiff filed a putative class action alleging that defendant's voice mail messages failed to meaningfully disclose the caller's identity and failed to state the call was from a debt collector.  On cross motions for summary judgment, the court rejected defendant's argument that the voice mails were not communications under the FDCPA, and that there was no need to state the call was from a debt collector when plaintiff had prior conversations and knew that the caller was a debt collector.  The court then entered summary judgment in favor of plaintiff, and granted the motion for class certification because the deficient message was a scripted text used when leaving voice mails. 

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March 16, 2015 Case Digest

In Wise v. Zwicker & Associates, the district court granted defendant's motion to dismiss plaintiff's claim that the defendant law firm violated the FDCPA by attempting to collect attorney fees pursuant to a credit card agreement.  The district court concluded that Utah law applied, which allowed the imposition of fees, and rejected plaintiff's claim that Ohio law should apply, when Ohio law bars enforcing the fee provision in consumer agreements.  Plaintiff appealed, and the district court's decision was reversed.  The appellate court found that there was a factual dispute unresolved by the pleadings as to which state's law applied, and therefore whether the attorney fee provision was enforceable was disputed and in need of further discovery. 

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March 13, 2015 Case Digest

In Baisden v. Credit Adjustments, plaintiff filed a putative class action alleging that defendant violated the TCPA by calling his cell phone witan automated dialer.  Defendant moved for summary judgment, claiming that plaintiff had consented to the calls by providing the cell number on a medical intake form.  The court rejected plaintiff's argument that simply proving the number on the admission form amounted to "express" consent, and concluded that a consumer need not specifically consent to receiving automated calls.

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March 12, 2015 Case Digest

In Briggs v. Wells Fargo, plaintiff alleged that defendant violated the FCRA by failing to correct or investigate numerous allegedly false statements made to the credit reporting agencies.  Defendant move to dismiss, arguing it was not required to respond to or investigate plaintiff's disputes.  The court granted the motion, fining that plaintiff failed to allege, and there was no facts showing, that plaintiff had disputed the reporting with the credit bureaus, or that defendant received notice of the dispute from the bureaus, which is necessary to trigger a duty to re-investigate.

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March 11, 2015 Case Digest

In O'Byrne v. PRA, plaintiff alleged that defendant violated the FDCPA by attempting to collect fees and interest in a collection lawsuit.  The district court entered summary judgment for defendant, and plaintiff appealed arguing that interest was not permitted until a judgment was obtained.  The appellate court first concluded that a complaint served directly on a consumer to facilitate debt collection efforts is a communication under and subject to Section 1692e and 1692f of the FDCPA.  However, the court found the communication did not violate the FDCPA because the credit card agreement allowed interest to be added, so that the interest became part of the past due total balance.

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FDCPA

What constitutes excessive calling under the FDCPA?  While the law prohibits excessive calling, there is no bright line rule for how many times a debt collector may call a consumer over a period of time.  Recognizing the industry frustration, we regularly detail the latest rulings, separating them by violations found; violations not found; and identifying the courts that have issued the decisions.

Attached is a memorandum detailing all reported excessive call decisions we have found.  Below are the latest rulings, compiled since we last issued our complete memorandum.

There are 7 new cases - 1 in D. Conn., 1 in W.D. NY., 1 in W.D. La., 2 in E.D. Pa., 1 in D. Kan., and 1 in S.D. Ga. 

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