Judge Grants MSJ in FDCPA Case Over Call Volume, Use of Local Number

A District Court judge in North Carolina has granted a defendant’s motion for summary judgment in a Fair Debt Collection Practices Act case, ruling the use of a local phone number from a collection agency based in another state and that 14 phone calls placed during a one-month period — even though 13 of those calls were made outside of the actionable period — did not violate the statute.

A copy of the ruling in the case of Brayton v. Alltran Financial can be accessed by clicking here.

The plaintiff filed his lawsuit on October 18, 2021, alleging the defendant violated the FDCPA and state law in North Carolina. The defendant sent an initial collection notice to the plaintiff on September 23, 2020. Between September 28 and October 19, 2020, the defendant made 14 phone calls to the plaintiff’s number, none of which were answered. The defendant called again on October 20, when the plaintiff answered the phone. On October 21, the account was placed in “cease collection” status.

The plaintiff filed suit, alleging the defendant violated Section 1692d(5) and 1692e(10) of the FDCPA.

The 1692d(5) claim was based on the volume of calls made to the plaintiff, but, as Judge Max O. Cogburn Jr. of the District Court for the Western District of North Carolina noted, only one call was made during the one-year period preceding the filing of the suit, which covers the statute of limitations on FDCPA claims. Even if he looked at all of the calls that were made, Judge Cogburn said that they would not “demonstrate an intent to harass,” he wrote. “No reasonable jury could find that the intent of Defendant’s calls was to harass, oppress, or abuse Plaintiff. Rather, the frequency and volume of calls reflect only the Defendant was attempting to reach Plaintiff to collect a debt.”

The 1692e(10) claim was based on the allegation that the plaintiff was misled or deceived because the defendant used a phone number with an area code local to the plaintiff’s area, even though the calls allegedly originated from a contact center in Texas. Again, Judge Cogburn noted that courts have “overwhelmingly held” that using a local number is not materially misleading under the FDCPA. “Because the decision-making process could not begin until a consumer actually answers the phone, the use of a local number cannot be a material misrepresentation — if it is a misrepresentation at all,” he wrote.