Debtor Wins Action Against Debt Collector for Illegal Debt Collection Practices

by Mike Mintz on July 12, 2012 · 0 comments

in martindale.com

A recent Illinois ruling in a case between a debtor and debt collectors scored one for the little guy.  On debtor-plaintiff’s summary judgment motion, the court found that the debt collector’s conduct, which included leaving numerous voice mail messages without providing the requisite disclosures, violated the Federal Fair Debt Collection Practices Act (“FDCPA” or the “Act”).  Pawelczak v. Nations Recovery Center, Inc., No. 11-3700 N.D. Ill. 2012).

When the Nations Recovery Center (“NRC”) employees called plaintiff-Pawelczak and left her voice mail messages, they failed to disclose that they were calling to collect a debt and that they would use any information to collect the debt.  The court concluded that NRC’s failure to make the requisite disclosures violated Section 1692e(11) of the Act. The voice mail messages merely left a callback number, requesting that plaintiff call them back soon.

The court rejected NRC’s argument that a voice mail message is not a communication under the debt collection act. NRC also argued unsuccessfully that leaving the necessary information on the voice mail messages exposed it to liability under 15 USC section 1692c(b) of the Act.

The court rejected NRC’s argument out of hand for two reasons.  A debtor’s voice mail service is not a “third party” under the Act. Also, its argument that it should not be penalized for protecting plaintiff’s privacy was contradicted by its internal memo in which NRC disclosed that it had implemented certain procedures in order to insure that the voice mail messages it leaves for debtors comply with the Act’s requirements.  Last the court pointed out that if NRC was not sure whether its voice mail messages complied with the Act,  they could have simply avoided the problem by not leaving any voice mail messages for the plaintiff.

Plaintiff also prevailed on her claim under section 1692d(6) of the Act which, as noted before, requires debt collectors to provide meaningful disclosures. NRC failed to disclose their identity in their voicemail messages, and the messages failed to disclose that the purpose of the call was to collect a debt.

The judge also denied NRC’s “bona fide error” defense because NRC’s procedures were not “reasonably adapted to prevent the FDCPA violations of which Pawelczak now complains. Nor do we find that a triable issue of fact exists, as any claim that NRC’s procedures were reasonably adapted to prevent its employees from leaving non-FDCPA compliant voice mail messages is foreclosed by the fact that Pawelczak received eight illegal calls from four different NRC employees in little over two months.”

The court further found that NRC’s procedures regarding its dialing system were not reasonably adapted to avoid violations under the Act.  NRC did not provide any admissible evidence that substantiated this claim.

The court granted Pawelczak’s summary judgment motion and denied NRC’s cross-motion for summary judgment.

 

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