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Kayyal v. Enhanced Recovery Co., LLC

United States District Court, N.D. Illinois, Eastern Division

September 23, 2019

SAMAR KAYYAL, Plaintiff,



         Plaintiff Samar Kayyal asserts that the defendant, Enhanced Recovery Company (“ERC”), violated provisions of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., by repeatedly calling her in an attempt to collect a debt. It is undisputed that Kayyal did not owe the debt; the dispute centers around whether ERC’s calls-some 40 calls over a three-month period-violated the FDCPA’s prohibitions on harassing or deceptive conduct. ERC says it did not and has filed a motion for summary judgment. There are material fact disputes relevant to these questions that require a jury’s resolution, however, so ERC’s motion for summary judgment is denied.

         BACKGROUND [1]

         ERC is a debt collector; it services debts on behalf of its clients. In December 2016, ERC was retained by AT&T to service a debt that a third party (unidentified in the record) had incurred to AT&T. ERC was provided with information such as the name of the debtor and the amount of the debt owed. Through one of its vendors, a company named TLO, ERC conducted a telephone number “scrub, ” which is a process by which it attempts to find telephone numbers associated with a particular person. According to ERC, the “scrub” results revealed that there was a “high probability” that a particular telephone number was associated with the debtor. Id. ¶ 11. Notwithstanding this optimistic assessment, however, the number belonged not to the debtor but to Kayyal.

         From sometime in December 2016 through March 7, 2017, ERC made approximately forty calls to Kayyal’s cell phone in an effort to contact the debtor.[2] During this period, ERC generally made no more than one call in a day, but on four or possibly five days, it called Kayyal’s number twice. Kayyal sometimes answered the calls; on at least some occasions the caller referred to ERC and Kayyal told the caller to stop calling and/or that they had the wrong number. On other occasions, Kayyal simply hung up. When Kayyal did not answer, ERC left no voice mail message. Kayyal learned that the calls were from a debt collector by Googling ERC’s name. No. one calling from ERC, however, told her that she owed a debt until the final call she received.

         That call was made on March 7, 2017. On that date, an ERC employee, Christine Wilcox, asked to speak with the debtor. Kayyal, who picked up the phone, asked why she was being called; the caller told her that she owed a debt. Kayyal told ERC to “stop calling” and to “take me off your phone list.” She also said that she was going to call her attorneys. ERC did not place any further calls to Kayyal’s telephone number after that occasion. This was the only call in which Kayyal had any conversation with someone calling on ERC’s behalf. As to all of the other calls Kayyal received, either she or the caller hung up after Kayyal answered and told the caller to “stop calling” or that they were calling the wrong number. Kayyal contends that she informed ERC at least 20 times that ERC had the wrong number and asked ERC to stop calling her.

         Based on ERC’s repeated calls, Kayyal filed this suit in April 2017, alleging violations of the FDCPA and the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”), 815 ILCS 505/1 et seq. ERC has moved for summary judgment.


         A court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing a motion for summary judgment, the Court “construe[s] all facts in the light most favorable to . . . the nonmoving party, who must point to specific facts showing that there is a genuine issue for trial, and inferences relying on mere speculation or conjecture will not suffice.” DiPerna v. Chicago Sch. of Prof. Psych., 893 F.3d 1000, 1006 (7th Cir. 2018) (internal quotations omitted).

         I. Plaintiff's Withdrawal of Certain Legal Theories

         In her complaint, Kayyal invoked a range of legal theories, contending that she was entitled to relief under the TCPA, the ICFA, and various provisions of the FDCPA. In response to ERC’s motion for summary judgment, Kayyal purports to withdraw several "claims, " but what she is really doing is abandoning legal theories rather than dismissing claims. The complaint in this case asserts only one claim for relief, that arising from the series of phone calls made to her by ERC, but it also asserts multiple legal theories as to why the facts of her claim entitle her to relief from ECR. But asserting multiple legal theories does not proliferate the number of claims a complaint sets forth. A “claim is the aggregate of operative facts which give rise to a right enforceable in the courts. One claim supported by multiple theories does not somehow become multiple claims." Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 399 (7th Cir. 2012); see also NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir.1992) (“One set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate.”).

         With that understanding, I construe Kayyal’s withdrawal of claims as a waiver of any right to legal relief premised on violations of the TCPA, the ICFA, or §§ 1692f and 1692e(11) of the FDCPA. In that regard, it is immaterial whether the theories are expressly withdrawn "with prejudice" or without; Kayyal has made no argument that any of these legal theories entitle her to relief, and so has surrendered any claim for relief predicated on these theories in the context of this case or any other. The only legal theories that Kayyal is continuing to advance are those under 15 U.S.C. § 1692d and § 1692e, both of which are part of the FDCPA, and it is to those theories that I now turn.

         II. The Remaining FDCPA Theories

         A. Claims under FDCPA ...

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