In recent years there has been a dramatic increase in the number of claims brought under the Telephone Consumer Protection Act based on calls made to wrong numbers. A decision in the Northern District of Illinois indicates that such calls can also give rise to exposure under the Fair Debt Collections Practices Act.
In Kayyal v. Enhanced Recovery Co., LLC, No. 1:17-cv-2718 (N.D. Ill. Sep. 23, 2019), the plaintiff, Samar Kayyal, alleges that Enhanced Recovery Co., LLC (“ERC”), a debt collection company, made approximately 40 telephone calls to her in a three-month period. However, Kayyal does not owe the debt and has no connection to the account being collected upon.
In December 2016, ERC was retained by AT&T to service a debt owed by a third party. A vendor employed by ERC performed a search and provided a telephone number that it believed had a “high probability” of belonging to the debtor. Between December 2016 and March 2017, ERC placed repeated calls to this number. But rather than reaching the debtor as intended, the calls were made to Kayyal.
In the lawsuit, Kayyal alleges that these calls were made with the intent to annoy, abuse, or harass her in violation of Section 1692d(5) of the FDCPA. In moving for summary judgment, ERC argued that Kayyal did not inform ERC that it had the wrong number or ask that the calls stop until March 7, 2017, after which ERC placed no further calls. The Court rejected this argument, holding that Kayyal’s testimony that she asked for the calls to stop on numerous occasions was sufficient to create a genuine issue of material fact for trial.
Additionally, Kayyal alleges that the calls falsely represented the character, amount, or legal status of the debt in violation of Section 1692e of the FDCPA. In denying ERC’s motion for summary judgment as to this claim, the Court held that a finding of liability under the provision does not require evidence of an affirmative misrepresentation. Rather, the provision is broad enough to apply to conduct that is misleading or deceptive for any reason. Furthermore, the Court determined that a jury could reasonably conclude that an unsophisticated consumer would believe that a series of more than 40 phone calls from a debt collector was an assertion that the consumer owed a debt. Even if the called party was not actually deceived, this is sufficient to state a claim under the FDCPA.
Although ultimate liability at trial remains far from certain, the Northern District of Illinois’s decision shows that wrong number calls to a consumer can potentially give rise to exposure under the FDCPA. Troutman Sanders will continue to monitor this and other cases involving wrong number calls as this area of the law continues to expand.