Brown v. Hosto & Buchan, PLLC
2010 U.S. Dist. LEXIS 116759
W.D. Tenn.2010Background
- Brown owes a consumer debt to a creditor other than Hosto & Buchan, PLLC.
- Hosto is a debt collector engaged in collecting debts and allegedly contacted Brown using an automatic dialing system.
- Brown alleges Hosto called her cellular number seventeen times in one month and after learning she was represented by counsel, contacted her directly without permission.
- Brown is represented by counsel and Brown alleges the communications violated FDCPA and TCPA provisions.
- Hosto moves to dismiss arguing failure to state a claim, lack of TCPA jurisdiction, and entitlement to attorney’s fees; Brown requests leave to amend if needed.
- The court analyzes FDCPA claims under 15 U.S.C. § 1692d(5) and § 1692c(a)(2) and the TCPA claim under 47 U.S.C. § 227(b)(1)(A)(iii), determining jurisdiction and the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA § 1692d(5) applicability | Brown asserts repeated calls show harassment under § 1692d(5). | Hosto contends the allegations fail to show intent to harass and are insufficient. | Denied; plausible frequency/pattern supports harassment. |
| FDCPA § 1692c(a)(2) pleading sufficiency | Brown alleges contact occurred after counsel notified and without consent. | Hosto argues pleadings recite language of the statute and are conclusory. | Granted without prejudice; pleading found insufficient to state a claim. |
| TCPA private claim jurisdiction and merits | Brown seeks TCPA relief; claims arise from same calls as FDCPA claim. | Hosto argues lack of federal question jurisdiction over TCPA; seeks dismissal or remand. | Court exercises supplemental jurisdiction over TCPA claim and denies motion to dismiss on the merits. |
Key Cases Cited
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605 (U.S. 2010) (FDCPA broad purpose and interpretation)
- Harvey v. Great Seneca Fin. Corp., 453 F.3d 324 (6th Cir. 2006) (least sophisticated consumer standard for § 1692d)
- Gottlieb v. Carnival Corp., 436 F.3d 335 (2d Cir. 2006) (federal authority to hear private TCPA claims and supplemental jurisdiction)
- Charvat v. GVN Mich., Inc., 561 F.3d 623 (6th Cir. 2009) (supplemental jurisdiction over TCPA claims affirmed)
- City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156 (U.S. 1997) (judicial economy and discretion in supplementing jurisdiction)