United States District Court, N.D. Illinois, Western Division
PHILIP G. REINHARD, District Judge.
For the reasons stated below, defendant's motion  for summary judgment is granted. This case is terminated.
Plaintiff, Stephen Michaelson, brings this action against defendant, CBE Group, Inc. asserting, in Count I of his complaint, claims for violation of 15 U.S.C. §§ 1692d and 1692f which are provisions of the Fair Debt Collection Practices Act ("FDCPA"). Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1367(a). Defendant moves  for summary judgment.
Originally, plaintiff also sought to recover in Count I on FDCPA claims pursuant to 15 U.S.C. §§ 1692d(5) and 1692g(a). In Count II, he sought to recover on claims under the Illinois Collection Agency Act, 225 ILCS 425/1 et seq. ("ICAA") In Count III he claimed a violation of provisions of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (TCPA). In his brief in opposition to defendant's motion for summary judgment, plaintiff abandons all of his ICAA and TCPA claims and his FDCPA claims based on 15 U.S.C. §§ 1692d(5) and 1692g(a). Accordingly, defendant is entitled to summary judgment on those claims.
Plaintiff's remaining claims are for violations of 15 U.S.C. §§ 1692d and 1692f. Section 1692d provides "[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section." This language is followed by a list of specific conduct which is deemed a violation. Section 1692f provides "[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section." This language is followed by a list of specific conduct which is deemed a violation. Plaintiff does not claim defendant engaged in any of the specific violations listed in either section.
Plaintiff opened an account with ComEd, used services provided by ComEd, and incurred a financial obligation to ComEd. When he established his account with ComEd, plaintiff gave ComEd his cell phone number as his contact number. Plaintiff understood that number would be used to contact him if he did not pay his ComEd bill. When plaintiff's account with ComEd became delinquent, ComEd retained defendant to collect plaintiff's debt to ComEd.
The conduct of defendant plaintiff claims was unlawful is the same for his claims under both section 1692d and section 1692f. In his brief, plaintiff says that from June 13 to June 25, 2013 defendant called him on his cell phone at least 14 times over the course of 12 days with as many as 3 calls in one day. He answered these calls on at least 10 occasions. When plaintiff answered defendant's calls, he heard silence or static-like noise for 10 to 20 seconds before the call would drop or plaintiff would hang-up. During these calls no representative of defendant ever came on the line nor did the caller identify himself. He maintains defendant repeatedly called him "with no actual ability to connect the answered call with its debt collector." Plaintiff contends defendant's calls were irritating, annoying and disruptive to plaintiff, had the "natural consequence to harass, " and were unfair or unconscionable.
Plaintiff was asked in his deposition "what was the communication going on in those 10 to 12 calls before you asked them to stop calling you?" He responded "[t]he number would ring on my cell phone. I would see the number, not recognize the number. I would answer the phone, thinking that perhaps somebody was inquiring to do business with me. I would answer the phone, because I always answered all calls, and I would hear nothing, or I would hear what I considered to be like computer staticky noise, which was familiar to me as the kind of noise you would hear in a call center waiting to be connected to somebody. So that is what made me think, this is probably a bill collector. This is probably an auto dialer. I just don't know who it is. And this happened on the 10, 12, maybe 15 times where I would see the same number, I would answer, hear nothing, not hear a representative come on, have a feeling that it was a bill collector, I have a feeling that it was an auto dialer, and then I would hang up, or the line would drop. They themselves would drop the call. There was never a physical representative who would come on to talk to me." (Pl. Ex. A., p. 54-55.)
In addition to these calls, four calls were placed by defendant's representatives to plaintiff which resulted in conversations. Plaintiff is not claiming any of the calls resulting in conversations were violations of the FDCPA.
The issue is whether defendant's use of a predictive dialing system to place calls to plaintiff on his cell phone (at the number plaintiff had provided to the creditor for whom defendant was collecting), where the calls did not promptly connect plaintiff to a human when plaintiff answered - leaving him listening to dead air for a period of time - violates 15 U.S.C. § 1692d or § 1692f, where the calls were not placed with intent to annoy, abuse, or harass the plaintiff.
"Summary judgment is appropriate where the admissible evidence reveals no genuine issue of any material fact." Hess v. Bresney, No. 14-1921, 2015 WL 1963483, *4 (7th Cir. May 4, 2015). "An issue of material fact is genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id . (internal quotation marks and citation omitted.) In applying section 1692d, the question whether conduct harasses, oppresses, or abuses will ordinarily be a question for the jury, but summary judgment or dismissal is appropriate where, as a matter of law, the facts presented "do not have the natural consequence of harassing or abusing a debtor." Harvey v. Great Seneca Financial Corp., 453 F.3d 324, 330 (6th Cir. 2006). Similarly, in applying section 1692f, "[w]hether a particular collection practice other than those specified in §1692f qualifies as unfair or unconscionable is assessed objectively and is a question for the jury unless reasonable jurors could not find that the practice described rose to that level." Todd v. Collecto, Inc., 731 F.3d 734, 739 (7th Cir. 2013).
As noted above, plaintiff does not contend defendant placed these calls with the intent to harass, oppress or abuse plaintiff. In fact, he has expressly abandoned his section 1692d (5) claim. Section 1692d (5) makes "[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" a violation of section 1692d's prohibition on engaging "in any 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 (5) (emphasis added). Plaintiff argues that defendant's placing these calls, which left him on the line with silence on the other end, were violations because they had the natural consequence of annoying, abusing, or harassing. He contends defendant did not have to have the intent to annoy, abuse, or harass, 1692d (5) notwithstanding, because 1692d (5) does not limit the general application of the statute's general prohibition of conduct that has "the natural consequence" to "harass, oppress, or abuse."
There do not appear to be any decided cases involving section 1692d or 1692f of the FDCPA and this factual scenario (calls, placed by a debt collector using some type of predictive dialer, where the calls do not promptly connect the person answering the call to a human, leaving the answerer listening to dead air but not claimed to have been placed with intent to annoy, abuse, or harass, where the number called was supplied to a creditor by the person answering the call). Plaintiff cites Hicks v. America's Recovery Solutions, LLC, 816 F.Supp.2d 509 (N.D. Ohio 2011), Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492 (D. Md. 2004), Sussman v. I.C. Sys., Inc., 928 F.Supp.2d 784 (S.D. N.Y. 2013), and Carmen v. CBE Group, Inc., 782 F.Supp.2d 1223 (D. Kan. 2011) in support of his claims. However, Hicks was a section 1692d(5) (calling repeatedly or continuously with intent to annoy) case where there was evidence in the record of intent (calling on a daily ...