Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ill.: Debtor denied summary judgment on TCPA claims against debt collector, (Oct 23, 2013)

By Edward L. Puzzo, J.D.

Summary judgment was not available to a debtor alleging that a collection agency violated the Telephone Consumer Protection Act, where the number and intended recipient of the calls in question remained in dispute, the federal district court in Chicago has ruled (Holt v. MRS BPO, LLC, October 21, 2013, Durkin, T.).

Municipalities contracted with debt collector MRS BPO to collect outstanding fines and parking ticket fees from consumers. Plaintiff Michelle Holt alleged that MRS called her cell phone 19 times during a four-month period without her consent, in violation of the Telephone Consumer Protection Act (TCPA). MRS responded that it could not find any records of manually or automatically dialed calls to Holt’s cell phone number, nor was that number linked to any of its collection accounts.

The relevant portion of the TCPA, 47 USC Sec 227(b)(1)(A)(iii), requires Holt to prove that a call was made to a cell phone (or other service for which the recipient may be charged for the call), using an automatic telephone dialing system, without the prior express consent of the recipient, the court explained.

Evidence of calls. Holt’s evidence for the 19 calls complained of consisted of her handwritten list, allegedly updated each time she received a call, plus her sister’s screenshots of the phone’s caller ID. However, the court noted, call records from her cell phone carrier confirmed only five of those calls, and only two calls appeared on all three sources (the handwritten list, the caller ID screenshots, and the phone carrier’s records), so the factual record remained in dispute.

Holt was able to present a plausible technical explanation for the carrier’s lack of records of certain calls, having to do with the carrier’s use of a gateway for calls where cell site information is not retained. However, the carrier’s technical explanation also raised the possibility that some of the calls could have reached Holt’s cell phone indirectly by being routed from other numbers, the court noted. This raised the possibility that MRS may not have initially dialed a cell phone number, in which case a violation of the TCPA may not have occurred.

Since these factual issues were not yet resolved and required a trier of fact to resolve them, Holt’s motion for summary judgment on her TCPA claims was denied.

The case is No. 12 C 2571.

Attorneys: Alexander D. Weisberg (Weisberg & Meyers, LLC) and David Weiss Lipschutz for Michelle Holt. John E. Brigandi (The Salvo Law Firm, PC) and Cory D. Anderson (Rock Fusco & Connelly, LLC) for MRS BPO, LLC

Companies: MRS BPO, LLC

Cases: Privacy IllinoisNews