Neal Moore and Gaby Atkisson, working alongside John K. Rossman of Rossman Kirk, recently had their client’s Motion to Dismiss Plaintiff’s claims for violations of 15 U.S.C. § 1692d and 15 U.S.C. § 1692e granted due to the Plaintiff’s failure to state a claim.
The Plaintiff alleged that the Defendant, a debt collector, violated the Fair Debt Collection Practice Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and Regulation F by engaging in harassing, abusive, and oppressive conduct in connection with debt collection and by making false and deceptive representations in its communications with the Plaintiff. In an increasingly common practice among seemingly unrepresented debtors, the Plaintiff sent an email stating, among other things, that she no longer wished to receive phone calls about her debt—only email or regular mail. Nonetheless, she received three more phone calls, which she alleged caused her “statutory and actual damages.” The Court was unpersuaded and, even after an allowed amendment, found the Plaintiff’s claim entirely deficient to state a claim.
Her alleged violation of 15 U.S.C. § 1692d failed due to common sense and legally sound reasoning that three phone calls over three months, despite Plaintiff’s request, were simply not harassing, oppressive, or abusive. It was not even alleged that Plaintiff answered any of the calls. There was nothing to support an inference that the phone calls “manifested a tone of intimidation” or were otherwise coercive or invasive. Rather, Plaintiff’s allegations were entirely conclusory.
As for the alleged violation of 15 U.S.C. § 1692e, the Plaintiff claimed the three calls falsely, deceptively, or misleadingly made her believe she could not control how debt collectors communicated with her about the debt. She relied on specific language in an administrative rule contained in Regulation F, indicating consumers could choose the medium of communication. However, the Court correctly noted that Regulation F is not the FDCPA; it is a regulation implementing the FDCPA. See 12 C.F.R. § 1006.1(a); 15 U.S.C. § 1692l(d). To the extent that Regulation F allowed the Plaintiff to make this election, Regulation F is not a statute, and a violation of an administrative rule is not an automatic violation of the FDCPA. Placing a call, even after the debtor (probably arbitrarily) said she wanted no more, is not in and of itself false, deceptive, or misleading.
The FDCPA was written, in our view, to facilitate honest and professional communication between debtors and those collecting their valid debts. This decision furthers that goal by reminding the Plaintiffs of precisely that fact. Thank you again to John Rossman and his firm Rossman Kirk for the chance to work with them here in Alabama.
Neal D. Moore has spent his career defending and trying cases involving personal injury and death. He specializes in complex product liability matters, working closely with professionals in industrial and commercial enterprises to defend claims of allegedly defective devices and equipment. He has defended hotels and restaurants from Mobile to Huntsville involved in personal injury and food poisoning cases. His work as a young lawyer on automobile liability matters led to his current work (as a not-so-young lawyer) on behalf of commercial carriers. In addition to his personal injury work, Neal specializes in the financial regulations governing lenders and debt collectors.
Gaby Ruiz Atkisson is an associate in the firm’s Birmingham office and focuses her practice on insurance defense, including premises liability matters, automobile accidents, and commercial trucking litigation. She has experience representing insurance carriers in both first- and third-party claims, and has represented businesses regarding claims of FDCPA violations, FCRA violations, and contract disputes.
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