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Ashlund v. I.C. System, Inc.

United States District Court, D. Connecticut

July 17, 2018

ROBERT ASHLUND, Plaintiff,
v.
I.C. SYSTEM, INC., Defendant.

          RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Janet Bond Arterton, U.S.D.J.

         Plaintiff Robert Ashlund alleges in his Second Amended Complaint ("Am. Compl.") that Defendant I.C. System, Inc. ("ICS") violated Sections 1692d and 1692d(5) of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (Count One), as well as Section 1692f of the FDCPA (Count Two). Defendant now moves [Doc. # 73] for summary judgment on both Counts, while Plaintiff moves [Doc. # 69] for summary judgment on Count One only. Oral argument was held June 26, 2018. For the following reasons, Plaintiffs Motion is denied and Defendant's Motion is granted.

         I. Background

         On January 13, 2016, creditor Eversource Energy ("Eversource") (formerly known as Connecticut Light & Power) assigned a delinquent account under the name of Mary Ashlund to Defendant for collection. (Def.'s Loc. R. 56(a) 1 Stmt. ¶¶ 3-4; Pl.'s Loc. R. 56(a)2 Stmt. ¶¶ 3-4.) A skip trace vendor, FirstData, provided telephone number (XXX) XXX-2424 to Defendant in connection with Mary Ashlund's account. (Id. ¶ 5.) Thereafter, Defendant began making calls to the phone number ending in 2424 in an effort to collect the debt owed by Mary Ashlund, placing 62 calls between January 14, 2016 and April 11, 2016. (Id. ¶¶ 6-9.)

         Plaintiff claims these calls "came in bursts" with fifteen calls between January 16, 2016 and January 29, 2016, twenty calls between February 2, 2016 and February 29, 2016, and thirteen calls in the period between March 1, 2016 and March 17, 2016. (See Ex. H (Def.'s Call Log) to Pl.'s Mot. for Summ. J. at ICS 6-13.) In fact, there were slightly fewer calls in total because Defendant's call log includes several erroneously-made duplicate entries, a fact which Plaintiff admits-and while there were indeed thirteen calls between March 1 and March 17, from the period between January 16 and 29, there were thirteen, not fifteen calls, and from February 2 to February 29 there were nineteen, rather than twenty calls.[1] (Def.'s Loc. R. 56(a) 1 Stmt. ¶ 10; Pl.'s Loc. R. 56(a)2 Stmt. ¶ 10.) Defendant called twice a day on eight occasions: January 18, 2016, January 22, 2016, January 25, 2016, January 26, 2016, March 17, 2016, March 21, 2016, March 22, 2016, and March 24, 2016. (Pl.'s Loc. R. 56(a) 1 Stmt. ¶ 13; Def.'s Loc. R. 56(a)2 Stmt. ¶ 13.)

         As it turns out, the 2424 number was not Mary Ashlund's phone number, but the cellular telephone of her adult son, Plaintiff. (Ex. A (Pl.'s Aff.) to Pl.'s Opp'n ¶¶ 2-3.) Shortly after the calls started, Plaintiff claims to have answered a call on his cell phone during which a representative stated he was calling from Defendant to collect a debt. Plaintiff asserts that he told Defendant he did not owe any debts, to stop calling, and then hung up. (Ex. C (Pl.'s Dep.) to Pl.'s Opp'n at 24:2-10.) According to Plaintiff, this was a very brief conversation and Defendant did not identify the specific debt or the debtor's name. (Id. at 23:21-24:1.) Defendant denies this conversation occurred, contending that only four of ICS' calls to Plaintiff were even connected and of those four, none of ICS' calls resulted in a conversation with Plaintiff." (Def.'s Loc. R. 56(a) 1 Stmt. ¶¶ 11-17.)

         Plaintiff retained Kimmel & Silverman, P.C. for representation in response to the calls. This law firm mailed Defendant a letter demanding that Defendant ""IMMEDIATELY CEASE AND DESIST" contacting Plaintiff, that "there ... be absolutely no calls, letters, or other communications whatsoever by any debt collector [, ]" and advising Defendant not to "contact our client at home, at work, by cellular phone, by mail, or otherwise." (Exhibit E (Attorney Cease and Desist Letter) to Pl.'s Mot. for Summ.}.) Defendant received this letter on January 18, 2016. (Ex. F (Certified Mail Receipt for Cease and Desist Letter) to Pl.'s Mot. for Summ. J.; Ex. G (Def.'s Dep.) to id. at 40:19-21, 41:8-10, 42:8-13, 45:16-25, and 46:1-5.) Unfortunately, however, Plaintiff Counsel's January 18, 2016, letter gave no telephone number or account number to enable Defendant to comply with the cease demand, particularly since Defendant did not have any collection account associated with Plaintiffs name or address. (Def.'s Loc. R. 56(a) 1 Stmt ¶¶ 28-29; Pl.'s Loc. R. 56(a)2 Stmt. ¶¶ 28-29.) The letter also failed to set forth Plaintiffs claim that he did not owe the debt Defendant sought to collect. (Exhibit E to Pl.'s Mot. for Summ. J.)

         Plaintiff maintains that ICS left several voicemails on his cell phone, but he has no record of the voicemails. (Def.'s Loc. R. 56(a) 1 Stmt. ¶ 30; Pl.'s Loc. R. 56(a)2 Stmt. ¶ 30.) Plaintiff also claims to have blocked Defendant's calls to his phone number ending in 2424, but has no record of blocking the calls either. (Def.'s Loc. R. 56(a) 1 Stmt. ¶ 32; Pl.'s Loc. R 56(a)2 Stmt. ¶ 32.)[2]

         II. Discussion[3]

         The FDCPA applies to debt collection attempts by any person or company that is a "debt collector" and which is acting to collect a debt owed or alleged to be owed for family, household, or personal purposes. See 15 U.S.C. § 1692a(5)-(6). There is no dispute that the FDCPA applies here.[4]

         A. Plaintiffs Sections 1692d and 1692d(5) Claims

         The FDCPA prohibits "conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. Section 1692d then lists nonexclusive examples of the type of conduct prohibited by the Act, including: "[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." Id. § 1692d(5). Plaintiff asserts two separate claims under 1692d: that Defendant's repeated phone calls violate Section 1692d(5), and that Defendant violated Section 1692d's general provision by continuing to call Plaintiff despite Plaintiffs oral and written requests that Defendant stop.[5]

         The question of whether a plaintiff has put forth sufficient evidence that he told a debt-collector to stop calling bears on both of Plaintiff s 1692d claims. That Plaintiff made such requests forms the basis for his claim that "the natural consequence" of Defendant's conduct was to "harass, oppress, or abuse" him under Section 1692d, and courts have often considered a plaintiffs evidence of a request when deciding whether a defendant acted with intent to annoy, abuse, or harass under Section 1692d(5), see e.g., Conover v. BYL Collection Servs., LLC, No. 11-CV-6244P, 2012 WL 4363740, at *6 (W.D.N.Y. Sept. 21, 2012); Chavious v. CBE Grp., Inc., No. 10-CV-1293 JS ARL, 2012 WL 113509, at *3 (E.D.N.Y. Jan. 13, 2012). Therefore, the Court first addresses whether Plaintiff has proffered sufficient evidence that he requested that Defendant cease calling his phone number. Defendant maintains that, despite Plaintiffs testimony to the contrary, its call records indisputably show that Plaintiff never spoke to an operator on any of the phone calls, and therefore could not have made any oral request that Defendant stop calling. Furthermore, Defendant urges that the letter sent by Plaintiffs counsel on January 18, 2016 did not effectively communicate Plaintiffs demand that Defendant cease calling him.

         With respect to Plaintiffs claim that he answered the phone and spoke with a representative of Defendant, asking that Defendant refrain from continuing to call his phone, Defendant's internal Call Log generated from its computer records for all calls to Plaintiffs telephone number show that at no point was Plaintiff ever connected to an operator. All but four of the calls reached Plaintiffs voicemail, at which point Defendant hung up. (See Ex. C. (Call Log Summary) to Def.'s Mot. for Summary Judgment.) Defendant's records reveal three phone calls reflecting "Hung up in Opening," and one "Operator Transfer (Caller Abandoned Before Connect") both of which indicate that although the call was initially connected, it was disconnected before an ICS customer service representative came on the line. (See id.; Ex. F (Selbitschka Affidavit) ΒΆ 26.) And while Plaintiff produces a several hundred page T-Mobile record (Ex. B to Pl.'s ...


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