After already granting a motion to dismiss on one claim that a collector violated the Fair Debt Collection Practices Act when it contacted a plaintiff seeking to collect on a debt that was actually owed by her granddaughter, a District Court judge in Florida has granted the defendant’s motion for summary judgment on the remaining state and federal claims as well.
A copy of the ruling in the case of O’Guin v. Webcollex can be accessed by clicking here.
The case centers around six calls that the defendant placed to the plaintiff, attempting to collect on a debt that was owed by the plaintiff’s granddaughter. The plaintiff informed the defendant during the first call that granddaughter did not live with her and that the defendant would not be able to reach the granddaughter using that phone number. Nonetheless, the defendant made five more calls to the plaintiff, after which the plaintiff sued, alleging the defendant violated Sections 1692d, 1692c(a)(1), and 1692e of the FDCPA as well as the Florida Consumer Collections Practices Act. Last August, Judge Kathryn Kimball Mizelle of the District Court for the Middle District of Florida dismissed the 1692d count, ruling that six calls did not constitute a pattern of harassing behavior.
Looking now to the other counts, Judge Mizelle first ruled that the plaintiff could not bring a claim alleging a violation of Section 1692c(a)(1) because the plaintiff does not meet the definition of a “consumer” under the FDCPA. Section 1692c(a)(1) says a debt collector violates the provision when it contacts a “consumer” — the person who actually owes the debt.
The plaintiff also failed to provide any evidence that the defendant violated Section 1692e by making false, deceptive, or misleading representations when attempting to collect on the debt. At no point would a least sophisticated consumer have been deceived into thinking the defendant was attempting to collect from that person, Judge Mizelle wrote.
“A reasonable jury could not conclude from this record that the least sophisticated consumer would have been misled to believe that the purpose of the phone calls was to attempt to collect a debt from O’Guin,” Judge Mizelle wrote. “The evidence supports that Webcollex called O’Guin looking for O’Guin’s granddaughter, O’Guin told Webcollex that her granddaughter did not live with her, that she could not be reached through O’Guin’s phone number, and, despite O’Guin’s request that Webcollex cease calling, it called five more times. A plaintiff with ‘a rudimentary amount of information about the world and a willingness to’ treat communications from a debt collector ‘with some care,’ would not conclude from these interactions that Webcollex was seeking to collect the debt from her.”
