The District Court for the Eastern District of Arkansas granted summary judgment in favor of defendant debt collector ProCollect, Inc. in Jennifer Fox v. ProCollect, Inc. by ruling that ProCollect did not violate the Fair Debt Collection Practices Act by making two phone calls to a wrong number after first learning the number was not the debtor’s phone number. The Court’s ruling illustrates the difference between a debt collector that mistakenly contacts the wrong individual and, on the other hand, a collector that intentionally harasses and abuses a consumer in violation of the FDCPA.
Plaintiff Jennifer Fox alleged ProCollect violated FDCPA Section 1692d, which prohibits harassment or abuse, and Section 1692f, which prohibits unfair or unconscionable practices. The main issue was whether ProCollect intended to annoy, abuse, or harass Fox when it placed two calls to her phone number after being told twice that it had a wrong number.
ProCollect intended to call the correct debtor’s phone number, which ended in “9183;” instead, ProCollect called Fox’s phone number, which is one digit off, ending in “9182.” Over the span of ten months, between July 1, 2016 and May 10, 2017, ProCollect called Fox’s phone number five times, but Fox never answered any of these calls. Then, on May 11, Fox answered ProCollect’s call and informed the company that it had the wrong number. On May 18, ProCollect called Fox’s phone number again and left a voicemail message for the intended debtor. That same day, Fox called ProCollect and told them for the second time that it had the wrong number. On June 8, 2017, ProCollect called Fox yet again. Fox responded by informing ProCollect for the third time that it had the wrong number.
The Court ruled that ProCollect’s conduct does not give rise to an intent to annoy, harass, or oppress because ProCollect clearly intended to reach the debtor, and not to annoy, harass, or oppress Fox. Judge Holmes wrote in his ruling that “[r]epeatedly calling a number despite being told that number is incorrect would at some point, perhaps, cross a line from merely intending to carry out legitimate collection efforts to intending to harass. But the Court does not draw that line in this case. In any event, the facts here do not give rise to such an intent. Even the courts that have denied summary judgment partly based on continued phone calls to a wrong number did so under more egregious facts than those present here.”
The attorneys in Troutman Sanders’ Financial Services Litigation team regularly defend clients in FDCPA claims and other debt collection consumer claims. Please do not hesitate to contact us with any questions about this or any other ruling.