Antitrust Law Daily Wrap Up, PRIVACY—M.D. Fla.: Consumers failed to show debt collector’s calls linked to an alleged debt, (Aug 7, 2015)

By Michael Menzhuber, J.D., LL.M.

In an action by a couple against a debt collection agency arising from automatic dialing system phone calls made to their cellular telephones without their prior permission, the plaintiffs failed to allege sufficient facts to show that they were “consumers” obligated to pay the defendant agency money, the federal district court in Fort Meyers, Florida has held (Lutman v. Harvard Collection Services, Inc., August 6, 2015, Chappell, S.).

Background. Harvard Collection Services, Inc. (HCS), a debt collection company, allegedly called Michael and Deborah Lutman’s cellular telephones, without the couple’s prior permission, no less than sixty-two times using an automatic dialing system. The couple filed a nine-count complaint, asserting claims for violations of the Telephone Consumer Protection Act (TCPA), Fair Debt Collection Practices Act (FDCPA), Florida Consumer Collection Practices Act (FCCPA), and a request for injunctive relief. The plaintiffs claimed that the defendant repeatedly harassed them in an attempt to collect a nonexistent debt. HCS answered the TCPA count but separately moved to dismiss the remaining counts, including the request for injunctive relief.

FDCPA and FCCPA. The court noted that to recover a debt under both the FDCPA and FCCPA, there must be a threshold showing that the money being collected qualifies as a “debt”. Both the FDCPA and FCCPA defined “debt” to mean “an obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” The court determined that the couple’s complaint did not allege sufficient facts to support their FDCPA and FCCPA claims because there was no allegation: (1) that the couple were “consumers” obligated to pay HCS money; or (2) of a business deal between the parties to create an alleged debt.

Injunctive Relief. HCS moved to dismiss the couple’s request for injunctive relief because they did not allege a claim under the FCCPA. Since the couple’s FCCPA claims were dismissed, the court agreed that the couple was not entitled to injunctive relief.

The case is No. 2:15-cv-257-FtM-38CM

Attorneys: Abbas Kazerounian (Kazerouni Law Group, APC) for Michael N. Lutman. Jodi Goldberg Barrett (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP) for Harvard Collection Services, Inc.

Companies: Harvard Collection Services, Inc.

Cases: ConsumerProtection Privacy FloridaNews