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Jones v. Enhanced Recovery Co.

United States District Court, S.D. Indiana, New Albany Division

September 17, 2019

TONYA JONES, Plaintiff,
v.
ENHANCED RECOVERY COMPANY, Defendant.

          ENTRY ON ENHANCED RECOVERY COMPANY'S MOTION FOR SUMMARY JUDGMENT

          RICHARD L. YOUNG, JUDGE

         If Tonya Jones is to be believed, Enhanced Recovery Company called her at least 170 times over the course of 168 days to collect an outstanding debt. Jones requested that ERC stop calling her at least fifty times, and she informed ERC on at least one occasion that she was homeless and could not pay the debt. To make matters worse, during one of these conversations, an ERC representative directed an expletive at Jones after she told ERC to stop calling her. Now, that might not be what actually happened, but at summary judgment, the court construes the evidence in the light most favorable to Jones. And on that evidence, a jury could find that ERC violated the Fair Debt Collection Practice Act's proscription against harassment and abusive conduct. See 15 U.S.C. § 1692d.

         I. Background

         Some point in 2013 or 2014, Jones fell behind on payments for her T-Mobile account. (Filing No. 49-1, Deposition of Tonya Jones (“Jones Dep.”) at 17:13 - 18; 20:4 - 6). Several years later, on May 23, 2017, T-Mobile retained ERC to collect the delinquent debt from Jones's account. (Id. at 23:9 - 20; see also Filing No. 44-1, Declaration of Rocky Landoll (“Landoll Dec.”) ¶ 6). ERC is a debt collection company. (Landoll Dec. ¶ 2).

         From May 24, 2017 through November 8, 2017, ERC called Jones to collect the debt from her T-Mobile account. (Id. ¶ 11; see also Filing No. 44-2, ERC Account Notes at 3 - 6). ERC placed at least 170 calls[1] to Jones's cell phone over the course of 168 days. (ERC Account Notes 3 - 6; see also Jones Dep. 28:15 - 21). Jones spoke with ERC representatives over fifty times and told them each time to place her on the do-not-call list. (Jones Dep. 29:1 - 5). Jones remembers one time speaking with an ERC representative and getting called an expletive because she told him she could not pay the debt. (Id. at 50:16 - 51:3). She recalls another time being confused because the representative identified ERC as “account receivable” when Jones asked who was calling. (Id. at 71:25 - 73:12). Jones felt harassed by ERC's collection efforts-particularly when Jones informed ERC she was homeless, yet ERC continued collection efforts a few days later. (Id. at 18:15 - 19:1; 37:3 - 13).

         Jones filed a complaint on December 13, 2017. (Filing No. 1). She alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. After Jones dismissed her TCPA claims with prejudice, ERC filed a motion for summary judgment on her remaining FDCPA claims. (Filing Nos. 40, 43). The motion is fully briefed and ripe for a decision.

         II. Legal Standard

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Burton v. Kohn Law Firm, S.C., 934 F.3d 572, 578 (7th Cir. 2019). The court views and draws all reasonable inferences from the evidence in the non-moving party's favor. Lavallee v. Med-1 Solutions, LLC, 932 F.3d 1049, 1054 (7th Cir. 2019). A genuine dispute over the facts exists where a jury could return a verdict for the non-moving party. Burton, 934 F.3d at 579.

         III. Discussion

         ERC moves for summary judgment on all of Jones's claims under the FDCPA. Jones concedes that summary judgment is appropriate on her claims under Sections 1692c(a)(1), 1692f, and 1692f(1), and so the court grants summary judgment to ERC on those claims. (See Filing No. 49, Jones's Response at 1). Jones disputes, however, whether summary judgment is appropriate on the rest of her claims.

         A. FDCPA Generally

         Congress passed the FDCPA to “eliminate the many evils associated with debt collection.” Bentrud v. Bowman, Heintz, Boscia & Vician, P.C., 794 F.3d 871, 874 (7th Cir. 2015). Among these are harassment and misleading communications. See 15 U.S.C. §§ 1692d (harassment generally); 1692d(2) (obscene language); 1692d(5) (harassing communications); and 1692d(6) (telephone calls without meaningful disclosures). The FDCPA is a remedial statute, and so the court construes it broadly in favor of consumer and debtors. See Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (citation omitted) (FDCPA is remedial statute and should be construed broadly); Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002) (FDCPA should be construed liberally in favor of consumers).

         B. Harassment Claims

         Section 1692d generally forbids debt collectors from engaging in harassing or abusive behavior when collecting a debt. See 15 U.S.C. § 1692d; see also Horkey v. J.V.D.B. & Associates, Inc., 333 F.3d 769, 773 (7th Cir. 2003). Section 1692d also specifically identifies certain conduct that amounts to harassment or abuse:

(2) The use of obscene or profane language or language the natural consequence of which is to abuse the ...

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