In Zarichny v. Complete Payment Recovery, plaintiff filed a putative class action alleging that defendant violated the TCPA and FDCPA while attempting to collect a debt plaintiff owed to her university.  Defendant moved to dismiss both claims, and to strike the class allegations.  The court granted the motions in part.  First, the court granted the motion to strike the class claims, finding plaintiff's proposed classes were improper fail safe classes because membership in the class was predicated on a finding of liability (the TCPA class members were limited to people that were called without consent; to ascertain the FDCPA class, it was necessary to identify those people that were not sent an initial validation notice).    The court also granted the motion to dismiss most of the FDCPA claims, because plaintiff's status as a college student was not a sufficient basis to conclude that calling during school hours would be at a time known to be inconvenient; that 11 calls over a 6 month period was not excessive; and that attempting to collect a debt that plaintiff  did not think was valid was not a false or misleading representation, especially when plaintiff had not disputed the debt.  The court denied the motion as to the failure to send the validation notice, rejecting defendant's argument that unanswered calls and voice mails were not an initial communication, and that defendant was obligated to send the initial validation notice within 5 days of the first voice mail; the TCPA claim survived because plaintiff had included sufficient detail supporting a claim that the calls were made with an ATDS by describing the timing of the calls and the content of the messages.

Back to News & Resources