Troutman Pepper Hamilton Sanders LLP

01/18/2021 | News release | Distributed by Public on 01/19/2021 23:18

Summary Judgment & Shifting the Burden of Proof: Court Grants Summary Judgment for Plaintiff and Denies Summary Judgment for Defendant in FDCPA and TCPA Case

In Russell v. Law, Judge Van Bokkelen, of the United States District Court for the Northern District of Indiana, granted summary judgment, in part, to Russell Friend ('Plaintiff')- alleging Taylor Law, PLLC ('Defendant') contacted Plaintiff continually in attempts to collect debt after Plaintiff's request that Defendant cease contact, in violation of the Fair Debt Collection Practices Act. Moreover, the Court denied summary judgment for Defendant on Plaintiff's count that Defendant violated the Telephone Consumer Protection Act by 'calling [Plaintiff] with an automatic dialing system.'

In that case, Plaintiff opened a credit card issued by Citibank, and Citibank's records showed Citibank later closed the card for non-payment of a $7,381.05 balance. Subsequently, Citibank sold the debt to CACH, LLC, who retained Defendant to collect the debt. After attempts to collect debt from Plaintiff, and Plaintiff's initial willingness to discuss payment, Plaintiff sent a letter to Defendant disputing he owed the debt and demanding Defendant refrain from contacting him for purposes other than confirming '[n]otification of receipt of this letter,' '[n]otification of the results of your verification,' and '[n]otification of any legal action taken by [Defendant] against [Plaintiff].' After receipt of Plaintiff's letter, Defendant continued attempts to contact Plaintiff by phone and letter and, subsequently, sued Plaintiff for the debt. In response, Plaintiff filed suit.

The Court found that Plaintiff failed to provide argument in briefing as to three of the five counts brought against Defendant, and accordingly granted summary judgment for Defendant on those counts. However, the Court granted summary judgment in Plaintiff's favor as to one count, finding that '[Defendant] violated [the FDCPA] by continuing to contact [Plaintiff] after [Plaintiff] demanded that [Defendant] stop.' Further, the Court denied summary judgment for Defendant regarding Plaintiff's allegation that Defendant violated the TCPA by utilizing an automatic telephone dialing system to call Plaintiff.

First, regarding the FDCPA count, the Court found Defendant's contention that Plaintiff's letter merely ''invited communication' rather than directing [Defendant] to cease all communication' was unpersuasive. Specifically, despite Defendant contention that its letter to Plaintiff after Plaintiff's demand that Defendant refrain from contacting him served merely to 'notify [Plaintiff] that we had been unable to reach him and hopefully obtain contact as to the verification of the account,' the Court found that the language of the letter and other testimony on the record 'blatantly contradicted' such a finding, and held that Defendant was soliciting debt repayment in violation of the FDCPA. Defendant's letter, in relevant part, stated the following: 'We remain willing to work with you to resolve this account. Please contact us at your earliest convenience to discuss what options may be available to you. [. . .] Payment may be made to [Defendant] . . . with funds made payable to CACH, LLC.'

Second, and more importantly, the Court denied summary judgment for Defendant regarding Plaintiff's allegation that Defendant violated the TCPA by utilizing an ATDS to call Plaintiff's cell phone. Significantly, the Court reasoned that there was a genuine issue of material fact as to whether Defendant called Plaintiff with an ATDS, despite the fact that testimony from Defendant's employee that he (1) 'did not know what software [Defendant] used to make calls, but it was made by a company called LIVEVOX.' and (2) did not believe the agents made calls to Plaintiff with an ATDS. In other words, although Plaintiff offered no evidence supporting the contention that Defendant called Plaintiff with an ATDS, the Court found Defendant employee's testimony sufficient to show that 'it was possible for [Defendant] to use automatic dialers [and] a reasonable juror might not adopt [the] belief that [Defendant] did not use its automated dialing system to call [Plaintiff].' Accordingly, the Court denied Defendant's motion for summary judgment on the count.