A recent opinion issued by the U.S. District Court for the Western District of Pennsylvania in Turner v. McCarthy, Burgess & Wolff (United States District Court, W.D. Pennsylvania, Case No. 15-829) granted a motion for summary judgment by defendant McCarthy, Burgess & Wolff (MBW) over an alleged violation of the Fair Debt Collection Practices Act (FDCPA) that MBW made repeated calls threatening wage garnishment and legal action against the plaintiff.
Plaintiff Lashay Turner admitted to becoming delinquent and owing a debt over a Verizon cable bill. She claimed she began receiving calls about the account in December of 2014 from a collection agency of which “she does not know the name.” In April 2015, Turner made arrangements with a collector to pay at a later date, and asked the collector to call before she went to work. Afterwards, she allegedly received a call from a different collector, but she did not know for what company she worked, who she instructed to stop calling. Plaintiff alleged that she received multiple calls after giving this instruction.
The plaintiff presented no evidence that she spoke to anyone affiliated with MBW, but “associates the two calls she received from the female and the male collector with MBW.”
Plaintiff alleged that she received 4+ calls a day from December 2014 to May 2015, and asserted that “at some point, she knew the calls were coming from MBW because a message was left for her with instructions to call MBW back.”
Turner further alleged that collectors “mentioned wage garnishment” and “said that if she did not take care of the debt it would go on her credit report” as well as mentioning “that legal action would be taken if she did not take care of the debt,” but presented no evidence to support her allegations.
MBW asserted that the account was not placed with them until May 6, 2015 and that four calls were made to the plaintiff on May 12, May 14, May 20, and May 21, 2015, and that their records indicate that all calls were made by women and that no “male collector” represented MBW with respect to this account.
The plaintiff filed suit on June 23, 2015, alleging that MBW violated the FDCPA by calling her on her cell phone after being told she could not receive personal calls at work, calling her multiple times a day over several months after being told to stop and communicate only in writing via email, threatening legal action against her and threatening to garnish her wages, and failing to update its records to restrict calls to her cell phone.
The defendant filed a motion for summary judgment, arguing the following:
1) Count I should be dismissed because the undisputed record demonstrates that it did not call her after 9:00 p.m. and it did not call her at work; 2) Count II should be dismissed because the undisputed record shows that it did not call her repeatedly or continuously; 3) Count III should be dismissed because the undisputed record shows that it did not make false, deceptive or misleading representations during calls to her; and 4) Count IV should be dismissed because the undisputed record shows that it did not fail to update its records to restrict calls to her cell phone and only communicate with her in writing.
Turner conceded to the dismissal of Counts 1 and 4, but argued that the evidence and record is in dispute with respect to Counts 2 and 3. MBW responded by arguing that Turners “vague, post-hoc recollections” of being called repeatedly “do not create a genuine issue of material fact” and that he recollection of a male collector threatening to garnish her wages also fails to create an issue of material fact sans evidence.
Judge Robert C. Mitchell dismissed Turner’s claim and granted summary judgment for MBW using the following reasoning:
“Plaintiff’s vague, post-hoc recollections raise only a metaphysical doubt as to the number of calls placed by Defendant’s representatives, which is simply not enough to create a genuine issue of material fact. The record evidence establishes that MBW placed four calls to Plaintiff between May 12, 2015 and May 21, 2015, between the hours of 9:00 a.m. and 6:30 p.m. This amount is far less than the 18 calls that the court found insufficient to violate the FDCPA in Chisholm v. AFNI, Inc., 2016 WL 6901358 (D.N.J. Nov. 22, 2016)”
Mitchell additionally notes that “there is no admissible evidence from which a jury could find that Plaintiff was subjected to harassing conduct” and granted summary judgment for MBW accordingly.
The Court used a similar reasoning to dismiss the allegations of threats of legal action and wage garnishment, because there “is no evidence” for the claim, granting summary judgment for MBW as a result.
This case is a victory for MBW when faced with a lawsuit that lacked even the slightest bit of evidence. Steve Wolff of McCarthy, Burgess, and Wolff reacted to the result by telling insideARM that “litigation can be costly but it’s more important to do the right thing … especially in an industry filled with unwarranted lawsuits.”
See the insideARM FDCPA Resources page and the FDCPA Case law grid (updated on a monthly basis thanks to Joann Needleman of the Clark Hill law firm) for links to other cases featuring positive results for the ARM industry and insideARM articles about issues like this.