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Analysis: Court Denies Defendant's MSJ on Call Volume Issue

My analysis, below, of the decision in Brown v. I.C. Sys., Inc., No. 16-cv-9784, 2019 WL 1281972 (N.D. Ill. Mar. 20, 2019) was originally published in the April 5 edition of AccountsRecovery.net’s ARM Compliance Digest. Click here for more information on the case.

Just how many calls to a debtor amount to an “intent to annoy, abuse, or harass” as prohibited by section 1692d(5) of the FDCPA? There has never been a clear answer to that question, and this recent Northern District of Illinois decision does little to demystify the matter.

On the surface, the case is about 20 calls made over a two-month period. In denying the defendant’s motion for summary judgment, the court stressed that the total number of calls (or the rate of calls per day or per week) is not the determining factor. Instead, other circumstances must be considered.  Here, there was evidence on the record that among the 20 calls was one that lasted for 61 seconds—“more than enough time for plaintiff to tell defendant that she was not the person defendant was looking for and to stop calling,” according to the court. Since a juror could find that the defendant continued calling the plaintiff despite plaintiff’s request to stop (and plaintiff’s insistence that she was not the actual debtor) the court found summary judgment inappropriate. 
 
The decision also highlights another imperative for collectors—the need for airtight record keeping and professional management of e-discovery. The defendant argued that “its recordings of connected calls show that plaintiff never told defendant to stop calling.” Shouldn’t that end the matter in the defendant’s favor? It didn’t, because of a discrepancy between the parties’ call logs. The defendant conceded that its initial production of call information omitted data relating to one call, due to an “improper refresh of data.” The court pounced on this: “[I]t tends to show that defendant’s records are no more conclusive or infallible than plaintiff’s memory. A reasonable factfinder could conclude that, if defendant made one mistake in searching, processing, or maintaining its data, it may have made others.” 

Mark Rooney