A District Court judge in Arizona has granted a defendant’s motion to dismiss claims it violated the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act, leading the plaintiffs to file a second amended complaint further detailing the alleged infractions committed by the defendant, a financial institution.
The background: The plaintiffs, Arizona residents, alleged that a financial institution violated both the FDCPA and TCPA after they sent a cease-and-desist letter on April 26, 2022, regarding an alleged debt. Although the institution acknowledged receipt of the letter, the plaintiffs claimed it continued its collection efforts by sending a collection notice on May 10, 2022, and placing 27 unsolicited phone calls between September 16 and October 4, 2024.
- In their first amended complaint, the plaintiffs claimed these communications caused them emotional distress, anxiety, and disrupted their lives. They sought redress under the FDCPA for alleged harassment and under the TCPA for receiving phone calls allegedly made using an autodialer or prerecorded voice.
The ruling: Judge Diane J. Humetewa of the District Court for the District of Arizona dismissed the complaint for failing to state a claim, but granted the plaintiffs leave to amend. She found that the plaintiffs had not sufficiently alleged that the financial institution met the statutory definition of a “debt collector” under the FDCPA. While the plaintiffs later argued the bank used the name “Card Member Services,” this was not included in the filed complaint and thus could not be considered.
- Regarding the TCPA claim, the judge ruled the plaintiffs failed to allege that the calls involved either an automatic telephone dialing system (ATDS) or an artificial/prerecorded voice, as required by the statute.
- Judge Humetewa also denied three additional motions filed by the plaintiffs: motions for sanctions, to strike, and for reconsideration, labeling them improper and moot.
The second amended complaint: Filed on July 11, the second amended complaint attempts to correct the deficiencies identified in the dismissal order. It now includes specific allegations that the defendant used the name “Card Member Services” during collection efforts, which the plaintiffs argue constitutes using a name other than the creditor’s own, potentially satisfying the FDCPA’s “debt collector” definition.
- For the TCPA claims, the amended pleading alleges that the calls were made using “an artificial or prerecorded voice” and were directed to the plaintiffs’ personal cell phones without consent—two elements that had been missing previously. The plaintiffs also allege that some of the calls began with a pause before speaking or played a recorded message, supporting the assertion that an autodialing system or prerecorded voice was used.
Read the ruling. Read the second amended complaint.
