In a case defended by Avanti Bakane at Gordon Rees, a District Court judge in California has granted a defendant’s motion for judgment on the pleadings in a Fair Debt Collection Practices Act case over whether the plaintiff informed the defendant that its calls were being made at an inconvenient time.
The Background: The defendant called the plaintiff first on October 24 of last year. The plaintiff claims he told the representative that he would contact them at a later time. The defendant then called on November 15, during which the plaintiff claimed it was an inconvenient time to talk because he was recovering from brain surgery and struggling with his speech and being able to effectively communicate. The defendant then called on December 7. During that call, the plaintiff allegedly said, “you ‘all keep contacting me after I previously informed you that I was recovering from brain surgery” and that the calls were interfering with his recovery.
- The plaintiff filed suit, accusing the defendant of violating Section 1692c(a)(1) of the FDCPA by attempting to communicate with a consumer at a time or place known or which should be known to be inconvenient to the consumer.
The Ruling: While he may have indicated that the calls were inconvenient at the time they were placed, the plaintiff was not explicit enough in either requesting that the defendant stop contacting him altogether or informing the defendant of the times that its calls would be inconvenient, ruled Judge Robert S. Huie of the District Court for the Southern District of California. For example, according to a recording submitted by the defendant, the plaintiff indicated during one of the calls that it was inconvenient “right now.”
Plaintiff: You kind of got me at the wrong time. I’m like —
Defendant: OK.
Plaintiff: I mean it’s the wrong time right now, so I’ll give you guys a call back.
Defendant: Yeah, absolutely. Apologize for the bad call, bad time.
Similarly, during the second call, the plaintiff said, “Yeah, you know, I can’t talk right now. I gotta – I cannot speak today right now because I had brain surgery on the 2nd, so I can’t talk right now because my head hurts too much.”
