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TCPA Class Against CPA, LP Certified in Part: Issues With Rep Agreement

Link: Lanteri V. Credit Protection Association LP, 1:13-cv-1501-WTL-MJD (S.D. Ind., Sept. 26, 2018).

Plaintiff, represented by Philipps & Philipps Ltd., Keogh Law, Ltd., and Macey and Aleman, P.C., sought to certify two classes in their Telephone Consumer Protection Act lawsuit against CPA. The suit alleges CPA continued to send texts to the class after they sent a “stop” text message in response or while the debt was subject to an automatic stay order of a bankruptcy court.

The court affirmed the “stop” class after dealing with the following language in the Plaintiff’s representation/retainer agreement:

If Client abandons the class and settles on an individual basis against the advice of Attorneys, Client shall be obligated to pay Attorneys their normal hourly rates for the time they expended in the case, and shall be obligated to reimburse the Attorneys for all expenses incurred.

The court found this objectionable but allowed the class to be certified if Plaintiff files an amended agreement without that language.

As the Defendants concede, the fee arrangement does not explicitly prohibit the Plaintiff from settling, and the Court notes that the arrangement does not impose any fees, costs, or expenses on the Plaintiff were she to agree to a class settlement against her attorneys’ advice. Nonetheless, as the Defendants also indicate, the arrangement creates the appearance of a possible conflict with respect to the Plaintiff’s ability to freely withdraw her claim or settle her claim against her attorneys’ advice.

The court, judge William T. Lawrence, also found that the bankruptcy class was not ascertainable:

The problem with this proposed class is that the Plaintiff has not provided a mechanism for how it will identify its members. The Plaintiff suggests that it can start from the list of persons who were called during the relevant time period and whose accounts were given a certain code by the Defendants, and then perform a “ministerial act” of reviewing bankruptcy court dockets to determine which of those persons filed for bankruptcy. This suggestion ignores the fact that this method would not identify the Plaintiff herself or others like her who filed for bankruptcy but whose account was not coded as doing so by the Defendants. It also equates filing for bankruptcy with the imposition of an automatic stay, when there are circumstances in which a bankruptcy filing does not result in a stay. See 11 U.S.C. § 362. The determination of whether there was an automatic stay in a particular case and, if so, until what date, is not necessarily a ministerial act. The Plaintiff offers no explanation of how “compar[ing] bankruptcy filing dates to call dates,” Dkt. No. 183 at 14, will be sufficient to determine whether the call dates were made during the pendency of an automatic stay; she does not address the need to determine (1) if an automatic stay did, in fact, take effect; and (2) if so, when the stay was lifted. In addition, if the class member filed under Chapter 13, any claim that accrued during the pendency of the bankruptcy proceeding was property of the estate, and if it was not disclosed as an asset during the pendency of the bankruptcy case, it cannot be pursued without reopening that case. Rainey v. United Parcel Serv., Inc., 466 Fed. Appx. 542 (7th Cir. 2012).

 

 

TCPA Class Case Against Citigroup Fails Certification

Link: Tomeo v. Citigroup, Inc., Case No. 13-cv-4046 (N.D. Ill., Sept. 27, 2018).

Judge Sara L. Ellis denied a motion brought by Plaintiff’s attorneys (DiCello Levitt & Casey LLC) to certify two Rule 23(b)(3) classes under the Telephone Consumer Protection Act for calling their telephones using an automatic telephone dialing system (“ATDS”) without their express consent.  The court found that Plaintiff did not satisfy his burden of establishing that common issues of fact or law predominate.

The court reminds us of the import of Rule 26: Citi attempted to attach a previously undisclosed expert declaration to its motion to strike Plaintiff’s expert reports. The court found that was procedurally improper because Citi submitted it after the close of expert discovery and further, Citi did not move to extend the deadline or for permission to submit a sur-rebuttal.

Regarding expert testimony, Rule 26 provides that “[a] party must make disclosures at the times and in the sequence that the court orders.” Fed R. Civ. Pro. 26(a)(2)(D). Unless Citi can show that the failure to provide Taylor’s report in a timely manner was justified or harmless, the Court should exclude it. Finwall v. City of Chicago, 239 F.R.D. 494, 500 (N.D. Ill. 2006)(citing Keach v. U.S. Trust Co., 419 F.3d 626, 639 (7th Cir. 2005)).

However, Plaintiff’s expert report is still stricken because they did not inspect Citi’s ATDS system itself:

 it is Tomeo’s burden to demonstrate that his expert reports and testimony are admissible, and he has not provided that support. Just as in Legg, Hansen cannot even credibly state that Citi’s equipment conforms to the specifications discussed in the manual. Because the Court finds that Tomeo has not shown that Hansen’s opinions regarding Citi’s dialers are based on sufficient facts and data, the Court excludes the portions of Hansen’s reports that make findings regarding the function of Citi’s dialers.

As to class certification generally, the court said that there would need to be too many individualized inquiries as to whether there was a wrong number or consent given for the calls.

Simply put, neither Tomeo nor his experts adequately identify a common way to address the individual variations of consent and revocation that occurred in this case … And in the cases where the Seventh Circuit held that class certification could be appropriate even though causation or damages required individual proof, the issues requiring individual proof did not directly affect whether the defendant was liable for some violation of the law. See, e.g., McMahon v. LVNV Funding, LLC,807 F.3d 872, 875 (7th Cir. 2015) (finding that the predominate issue was whether the defendant’s actions violated the FDCPA, not whether that violation damages the class members); Pella Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir. 2010)(holding that the central question in the case was whether the product at issue was defective when it left the factory, not whether that defect proximately caused the class members’ damages). The individualized issues in those cases could be separated from the primary issue of liability. Here, on the other hand, consent is inextricably intertwined with primary issue of liability to the point where it predominates over the other common issues in the case.

Class Settlement Denied in TCPA and FDCPA Case Against Ocwen

Link: Snyder v. Ocwen Loan Servicing, LLC, Case No. 16-cv-8677 (N.D. Ill., Sept. 28, 2018).

In this large TCPA / FDCPA case against mortgage servicing company Ocwen, judge Matthew F. Kennelly denied the parties’ motion for final approval of a class which was potentially enormous: Ocwen’s records showed that it had made, during the period covered by the limited class proposed for preliminary injunctive relief, over 146 million calls to 1.45 million unique telephone numbers.

Once Plaintiffs (represented by Burke Law Offices and others) realized Ocwen’s insurer would not be covering them (Ocwen failed to give its insurer notice), there was a question whether Ocwen would be able to cover any settlement or if it would need to fold, leaving the class with nothing. Plaintiffs responded by trying to add in the banks and trusts Ocwen was working for, but the court in an earlier ruling denied that request as not timely. Plaintiffs then filed suit against the banks and trusts themselves.

The judge rejected the final $17,500,000 settlement on two grounds: One, that there was nothing in the record that showed Ocwen would not be able to pay, which might account for the relatively low amount of money given the number of calls. Two, the settlement called for the dismissal of the second case filed against the banks and trusts, but there did not appear to be any consideration given by the banks in the settlement agreement.

As a refresher on getting a class settlement approved, here’s the standard the court used:

A district court may approve a proposed settlement of a class action only after it directs notice in a reasonable manner to all class members who would be bound and finds, after a hearing (which the Court has already held), that the proposed settlement is “fair, reasonable and adequate.” Fed. R. Civ. P. 23(e)(2). In making the latter determination, courts in this circuit typically consider the following factors:

(1) the strength of the case for plaintiffs on the merits, balanced against the extent of settlement offer; (2) the complexity, length, and expense of further litigation; (3) the amount of opposition to the settlement; (4) the reaction of members of the class to the settlement; (5) the opinion of competent counsel; and (6) the stage of the proceedings and the amount of discovery completed. . . . The most important factor relevant to the fairness of a class action settlement is the strength of plaintiff’s case on the merits balanced against the amount offered in the settlement.

Wong v. Accretive Health, Inc., 773 F.3d 859, 863-64 (7th Cir. 2014) (internal quotation marks and citations omitted). The Court notes that as of December 1, 2018, absent contrary Congressional action, an amendment to Rule 23(e)(2) setting forth a list of points a court must consider in determining whether a proposed class action settlement is fair, reasonable, and adequate. The Court will address these points as well. They include whether:

• the class representatives and class counsel have adequately represented the class;

• the proposal was negotiated at arm’s length;

• it treats class members equitably relative to each other; and

• the relief provided by the settlement is adequate, taking into consideration the costs, risks, and delay of trial and appeal; the effectiveness of the proposed method of distributing relief; the terms of any proposed award of attorney’s fees; any agreements made in connection with the proposed settlement.

Proposed Fed. R. Civ. P. 23(e)(2) (eff. Dec. 1, 2018).

Mistaken ID FDCPA Claim Survives Summary Judgment

Link 1: (SHA Opinion) Ali v. Portfolio Recovery Associates, LLC, Case No. 15-cv-06178 (N.D. Ill. Sept. 30, 2018);
Link 2: (SAA Opinion) Ali v. Portfolio Recovery Associates, LLC, Case No. 15-cv-06178 (N.D. Ill. Sept. 30, 2018).

These two consolidated cases derive from PRA’s attempt to collect different debts from the wrong Syed H. Ali and from his father Syed A. Ali. The suit alleges that PRA unsuccessfully sought to collect a debt from a person named SHA located in Texas, and then went after a different SHA—one of the plaintiffs here. PRA sent collection letters and then filed a lawsuit through the defendant attorneys. The underlying error here is defendants sought collection against the Debtor and served the collections complaint at an address where another person bearing the same name (including middle initial) lived.

Plaintiff, represented by  Bryan Thompson and Robert Harrer of the Chicago Consumer Law Center, P.C., Daniel Brown, of Main Street Attorney, LLC, Blaise & Nitschke, P.C. & The Law Office of M. Kris Kasalo, Ltd., filed a 9-count complaint.

Opinion 1

The court (Judge Sharon Johnson Coleman) issued two opinions: one for the minor SHA and one for the father SAA. As to SHA, the court found that factual issues abound as to whether this was a consumer debt (thus falling within the FDCPA) and also regarding the Bona Fide Error defense that Defendants asserted. However the court granted summary judgment as to the 1692d and 1692f claims finding that there wasn’t harassing or unfair or unconscionable means used in the attempted debt collections.

The claim under the Illinois Collection Agency Act (“ICAA”), 225 ILCS 425/1 et seq. failed because the court found that the ICAA did not intend to give consumers a private right of action and dismissed it sua sponte under Rule 12(h)(3):

SHA cites Sherman as authority for his implied right of private action. Sherman v. Field Clinic, 74 Ill. App. 3d 21, 392 N.E. 2d 154 (1st Dist. 1979). Since Sherman was decided nearly 40 years ago this district and even Illinois state courts have been split on whether to follow it . . .  If the legislature intended for there to be an implied right of action, it would have written it into the law itself, especially considering the lapse in time since Sherman was decided, implying this right.

Opinion 2

The second (SAA) opinion  addressed additional claims by SAA against Blitt & Gaines, P.C. and Freedman Anselmo Lindberg Oliver, LLC (which have since merged). The additional counts were brought under the Fair Credit Reporting Act and Fair Debt Collection Practices Act. The court dismissed the 1692d claim on the basis that there was no evidence that the collection attorneys knew they had they wrong man, but allwed the 1692e claim against PRA to survive despite the Bona Fide Error defense:

The Section 1692e FDCPA violations against Portfolio stem from its alleged failure to confirm the account Debtor’s personal information and recognize that it differed from SAA’s information before pursuing collections and the lawsuit. This Court finds that there is a question of fact whether a reasonable, unsophisticated consumer would be misled by Portfolio’s actions. SAA was upset and confused by the letters and the lawsuit against “Syed Ali.” Indeed, mistakenly being sent a demand letter or being served with a lawsuit in one’s name, taken in isolation, could be confusing[. . .]

This Court [. . .] finds an issue of fact as to the sufficiency of Portfolio’s controls and procedures since Portfolio was on notice from the August 29, 2014 TransUnion report, prior to its filing of the lawsuit against Syed Ali, that another Syed Ali lived at the address associated with the Debtor.

The court granted summary judgment in favor of the debt collector attorneys based on their bona fide error defense, noting that they don’t have to apply “most comprehensive approach to avoid errors. Courts have found it sufficient for defendants to take reasonable efforts to avoid violations if FDCPA.”

As to the impermissible pull claim under the FCRA, the court sided with PRA in that the CRA was the entity responsible for the pull on the incorrect address and the subsequent pulls were related to accounts that the correct SAA had with Portfolio.

 

In Rem Demand for Neighborhood Association Debt Violates FDCPA

Link: Ellison v. Fullett Rosenlund Anderson PC, Case No. 17 CV 2236 (N.D. Ill., Sept. 28, 2018).

Defendant law firm sent a notice on behalf of Brookside Village Neighborhood Association to collect past due monthly assessments. Plaintiff had discharged the debt in bankruptcy. Regardless, Defendant sent a dunning letter titled “IN REM NOTICE AND DEMAND FOR POSSESSION” that stated:

THIS IS THE PROPERTY’S NOTICE … that the property is in default of its ongoing obligation due to Brookside Village Neighborhood Association in the sum of $4,100.00 for its proportionate share of the expenses … lawfully agreed upon due and owing at least in part since 02/01/2011, as well as the sum of $265.02 in legal fees and costs in attempting to collect this account, for a total sum of $4,365.02.

This is its NOTICE that payment in full of the amount stated above is demanded of the property and that, unless its payment of the FULL AMOUNT is made on or before the expiration of thirty-four (34) days after the date of mailing of this Notice, THE ASSOCIATION MAY SEEK TO TERMINATE ANY RIGHT TO POSSESSION OF THE PREMISES.

The court, judge Harry D. Leinenweber, found that Plaintiff is a “consumer” despite having discharged the debt, that the notice was in connection with the collection of a debt (despite Defendant’s arguments it was only “in rem”), and that the notice taken as a whole would be misleading and confusing on its face to the average unsophisticated consumer.

Defendant’s hail mary argument that the FDCPA conflicts with Illinois’ Forcible Entry and Detainer Act was summarily rejected:

FRA fails to identify any conflict, let alone one that rises to the magnitude of conflict present in Ho, between FEDA and the FDCPA. Nor can the Court find any such conflicts. While fulfilling FEDA requirements, a notice or letter can still be drafted in a way that violates the FDCPA. This happens to be the case for the Notice here. Regardless of whether the Notice complies with FEDA requirements, the Court finds that the Notice was misleading and could have been crafted in a way to avoid ambiguity and confusion, particularly by informing Plaintiff either that she was not liable for the debt or by specifying the amount, if any, she was still liable for post-bankruptcy discharge.

Plaintiff was represented by Edelman, Combs, Latturner & Goodwin LLC.

Collection Letter Seeking Debtor’s Info May Violate FDCPA

Link: Niland v. ALLIANCE COLLECTION AGENCIES INC., Case No. 17-CV-722 (E.D. Wisc., Sept. 28, 2018).

Debt collector sent a letter stating as follows:

If you are unable to pay the Amount Due in full, please contact our office to complete a financial assessment. This assessment will enable us to determine whether you may qualify for settlement of this debt for less than the full payment. To discuss this option, or if you have questions, you may also contact our office at 1-800-215-1547 and will be happy to assist you.

Plaintiff filed suit alleging this request was a confusing, deceptive, or misleading statement to the unsophisticated consumer, and a material misrepresentation provoking the consumer into providing financial information to a debt collector on false pretenses, all in violation of 15 U.S.C. §§ 1692e, 1692e(5), 1692e(10), and 1692f of the FDCPA.

The court, judge Nancy Joseph, allowed this claim to survive a motion to dismiss:

I find that plaintiffs have adequately pled that Alliance’s letter was a violation of the FDCPA. The Seventh Circuit has described the unsophisticated consumer, for FDCPA purposes, as “uninformed, naïve and trusting,” and only possessing basic knowledge of the financial sphere. Williams v. OSI Educational Services, Inc., 505 F.3d 675, 678 (7th Cir. 2007) (internal citation omitted). Further, the FDCPA provides that consumers have a right to ask a debt collector to refrain from contacting them. See 15 U.S.C. § 1692c; Johnson v. Alltran Education, LP, Case. No. 17-CV-6616, 2018 WL 2096374 at *4 (N.D. Ill. May 7, 2018). Thus, an unsophisticated consumer could view a letter seeking financial information as the only means of settling a debt, when in fact, a consumer could prohibit communication from the debt collector.

Debt Collector Demand for Interest Violates FDCPA

Link: Knepp v. Huffman, Case No. 3:17-CV-282-JD (N.D. Ind., Sept. 28, 2018).

Summary judgment entered by judge Jon E. DeGuilio for plaintiff where debt collector demanded 8% interest despite no statutory authority to do so:

Martin Financial has not pointed the Court to any authority standing for the proposition that Indiana Code § 24-4.6-1-103 allows a debt collector to collect interest on an unpaid debt; where, as here, the debt collector has not produced a contract that provides for the imposition of interest in the first place, or any other evidence that an 8% interest rate would apply [. . .]

Because Martin Financial failed to identify any applicable Indiana statute permitting it to charge interest on Ms. Knepp’s debt, it effectively admitted (through waiver) that the dunning letters falsely imply a possible outcome that cannot legally come to pass.

 

EFTA Claim for Overdraft Fees Dismissed

Link: Domann v. SUMMIT CREDIT UNION, No. 18-cv-167-slc (W.D. Wisc. Sept. 13 2018).

This case gives a good overview of the recent cases regarding overdraft fees and their relationship to the Electronic Fund Transfer Act and its implementing regulation, Reg. E.

Domann argues that SCU used a method of calculating his balance that deviated from the method described in its contracts with Domann, leading SCU to charge him excess overdraft fees. In this putative class action, Domann brings claims against SCU for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, money had and received, violation of Regulation E of the Electronic Fund Transfers Act (EFTA), and violation of the Wisconsin Deceptive Trade Practices Act.

Overdraft fees have attracted the attention of regulators and the media in recent years.[1] In 2009, the Federal Reserve adopted Regulation E, a set of rules intended to “assist consumers in understanding how overdraft services provided by their institutions operate and to ensure that consumers have the opportunity to limit the overdraft costs associated with ATM and one-time debit card transactions where such services do not meet their needs.” Electronic Fund Transfers, 74 Fed. Reg. 59,033-01 (Nov. 17, 2009) (codified at 12 C.F.R. § 205.1). Regulation E “require[s] financial institutions to secure a customer’s `affirmative consent’ before charging overdraft fees,” which must be obtained through an opt-in notice. This opt-in notice must contain a “brief description of the financial institution’s overdraft service” and be “substantially similar” to the Fed’s Model Form A-9. 12 C.F.R. § 1005.17(d).

Overdraft fees are tied to the customer’s account balance. Financial institutions primarily use two methods to calculate an account holder’s checking account balance: the “ledger” balance and the “available” balance. As described by the Consumer Financial Protection Bureau (“CFPB”),

[a] ledger-balance method factors in only settled transactions in calculating an account’s balance; an available-balance method calculates an account’s balance based on electronic transactions that the institutions have authorized (and therefore are obligated to pay) but not yet settled, along with settled transactions. An available balance also reflects holds on deposits that have not yet cleared.

CFPB, Winter 2015 Supervisory Highlights, Section 2.3.[2]

The following example illustrates the distinction:

If a member has a $100 ledger balance but uses his debit card to buy dinner for $40, then there is a pre-authorization hold on his account (at the request of the restaurant), and his available balance (the money he has left to use) is $60.00. In other words, the $40, which the member just spent, is no longer available for use. His ledger balance is still $100 until the restaurant charge is submitted and posted to his account. On the credit side, if he deposits an out-of-the-state check in the amount of $5,000 a hold will be placed on all but $200. In this example, his available balance is $200 and his ledger balance is $5,000, even though the check may never clear.

SCU’s Br. in Supp., dkt. 11, at 3.

Not surprisingly, “[u]sing the available balance method often leads to more frequent overdrafts because there is less money available in the account due to holds and pending transactions.” Tims v. LGE Cmty. Credit Union, No. 1:15-CV-4279-TWT, 2017 WL 5133230, at *1 (N.D. Ga. Nov. 6, 2017). Many account holders who have been subjected to overdraft charges based on “available balance” calculations not only feel blindsided by this, they feel that this practice is a breach of their contract with their credit union or bank. A series of virtually identical lawsuits has been filed across America challenging this practice. See, e.g., Walker v. People’s United Bank, 305 F. Supp. 3d 365 (D. Conn. 2018)Walbridge v. Ne. Credit Union, 299 F. Supp. 3d 338 (D.N.H. 2018)Tims v. LGE Cmty. Credit Union, No. 1:15-CV-4279-TWT, 2017 WL 5133230 (N.D. Ga. Nov. 6, 2017); Smith v. Bank of Hawaii, No. CV 16-00513 JMS-RLP, 2017 WL 3597522 (D. Haw. Apr. 13, 2017); Ramirez v. Baxter Credit Union, No. 16-CV-03765-SI, 2017 WL 1064991 (N.D. Cal. Mar. 21, 2017); Gunter v. United Fed. Credit Union, No. 315CV00483MMDWGC, 2016 WL 3457009 (D. Nev. June 22, 2016)Wodja v. Washington State Employees Credit Union, 2016 WL 3218832 (W.D. Wash. June 9, 2016); Pinkston-Poling v. Advia Credit Union, 227 F. Supp. 3d 848 (W.D. Mich. 2016)Chambers v. NASA Federal Credit Union, 222 F. Supp. 3d 1 (D.D.C. 2016).

TCPA Class Claim Against Uber Subject to Arbitration

Link: Johnson v. UBER TECHNOLOGIES, INC., No. 16 C 5468 (N.D. Ill. Sept. 20, 2018).

Judge John Z. Lee found that Uber’s arbitration click-wrap agreement is enforceable, and as a result tossed the putative class claims under the Telephone Consumer Protection Act:

Illinois law requires that a consumer be provided reasonable notice of all the terms and conditions of an agreement as well as reasonable notice that, by clicking a button, the consumer is assenting to the agreement. See Sgouros, 817 F.3d at 1034-36. “This is a fact-intensive inquiry: we cannot presume that a person who clicks on a box that appears on a computer screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.).” Id. at 1034. As part of this inquiry, the court considers whether a reasonable person would be misled, confused, misdirected, or distracted by the manner in which the terms and conditions are presented. Id.

. . .

Similar to Dell’s website in Hubbert, the app that Johnson used to create his Uber account included the following statement: “By creating an Uber account, you agree to the Terms of Service & Privacy Policy.” See Def.’s LR 56.1(a)(3) Stmt. ¶ 15. The statement appeared in an easy-to-read font on an uncluttered screen, and no scrolling was required to view it. Id. ¶¶ 10, 15, 17. The words “Terms of Service & Privacy Policy” in the statement also served as a hyperlink, which appeared in a larger-sized font, enclosed in an outlined box. See id. The hyperlink, when clicked, brought the user to a screen displaying Uber’s Terms of Service in effect at the time. Id. ¶¶ 15, 18. As in Hubbert, the Court holds that the manner in which this statement and the Terms of Service were presented placed a reasonable person on notice that there were terms incorporated with creating an Uber account and that, by creating an account, he or she was agreeing to those terms.

 

Collection Calls to Wrong Person Basis for Valid FDCPA, TCPA claims—Not ICFA

Link: Hayes v. RECEIVABLES PERFORMANCE MANAGEMENT, LLC, Case No. 17-cv-1239 (N.D. Ill. Sept. 26, 2018).

This suit, filed by Sulaiman Law Group, Ltd., alleges that employees from RPM called plaintiff numerous times looking to speak with and collect a debt from someone named “Lesha Wayne.” The plaintiff told RPM numerous times they had the wrong number and told them to stop calling. They didn’t. Plaintiff filed suit under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Count I); Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. (Count II); and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq. (Count III). Defendant filed a motion to dismiss, which the court, judge Robert M. Dow, granted in part and dismissed in part.

The court found Plaintiff did not sufficiently allege facts to show that he qualifies as a consumer under § 1692a(3) of the FDCPA, and dismissed his claim under Section 1692b(3) which requires that:

Any debt collector communicating with any person other than the consumer for the purpose of acquiring information about the consumer shall * * * not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.

The court also dismissed his claim under section 1692c(a)(1) which provides:

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt (1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.

The court dismissed his claim under 1692e finding that Plaintiff didnot allege that he believed he owed the debt, or that Defendant or its agents ever said anything to him that even implicitly suggested he owed the debt. Instead, Plaintiff argued the calls were an attempt to mislead him into paying the debt.

The court also dismissed his f claim:

A Plaintiff who uses the same factual allegations underlying another § 1692 claim for his § 1692f claim, however, fails to state an independent basis on which relief can be granted.

The court did allow the section 1692d(5) claim to stand:

While Defendant asserts these allegations are not enough to state claim, the court in Wright v. Enhanced Recovery Company denied a motion for summary judgment where the parties agreed that the defendant had only been called 21 times but disagreed at what point and how many times the plaintiff had asked for the calls to stop. 227 F. Supp. 3d at 1214-15. In light of Wright, and the fact that Plaintiff alleges he demanded the calls to stop on numerous occasions, Plaintiff has alleged facts to show a plausible violation of the FDCPA with regard to § 1692d(5).

The TCPA claim survived despite Defendant’s argument regarding whether plaintiff alleged they used an autodialer:

Here, Plaintiff alleges both that he has experienced the distinctive “click and pause” after answering calls from Defendant [1, ¶ 18], and that on other occasions he experienced “dead air” and received no response whatsoever when he answered Defendant’s calls, [1, ¶ 19]. Given these experiences, Plaintiff infers that Defendant used an ATDS to make these calls. [1, ¶ 47.] Considering the precedent above, the Court agrees that Plaintiff has pled sufficient facts to support the reasonable inference that Defendant used a ATDS to place the relevant calls.

The Court also dismissed the ICFA claim:

As explained above, Plaintiff has not pled facts sufficient to show that Defendant engaged in a deceptive act or practice under 15 U.S.C. § 1692e. Thus, he has not pled facts to support his claim under the ICFA. While Defendant’s calls may have been annoying, and possibly abusive, nothing in Plaintiff’s complaint suggests that Defendant sought to deceive Plaintiff.