Cerrato v. Solomon
2012 U.S. Dist. LEXIS 179132
D. Conn.2012Background
- Cerrato sued Solomon for FDCPA violations and Connecticut invasion of privacy by intrusion upon seclusion.
- Debt referred to Solomon by Citibank; accounts 58, 63, and 79 involved; multiple prior suits and collections on these accounts.
- Solomon called Cerrato repeatedly about account 58 starting in 2009, despite a September 12, 2009 cease-and-desist letter; six calls followed before stop.
- In August 2010, Solomon began contacting Cerrato about account 79; 117 calls occurred from August 16, 2010 to February 2, 2011.
- Cerrato faxed a February 2, 2011 notice demanding cessation of calls across all Citibank accounts; Solomon processed a cease-and-desist for account 92 only.
- Solomon’s computer system uses an ONTC code to mark accounts for cease communications; dispute exists whether ONTC was applied to all relevant accounts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether eight unanswered calls constitute a FDCPA communication | Cerrato argues calls display Solomon’s name/number and convey debt collection intent, constituting communications. | Solomon argues no information was conveyed since there was no spoken contact. | Eight calls constitute communications under FDCPA. |
| Whether there is an exception to communications after a cease and desist | Cerrato argues no exception applies; the letter referenced all accounts, not just one. | Solomon contends it could have informed about remedies under §1692c(c). | No evidence supporting the exception; improper logging of ONTC noted as issue of fact. |
| Whether Solomon is protected by the bona fide error defense | Cerrato asserts the defense does not apply given mishandling of accounts. | Solomon contends procedures were reasonable and an error occurred despite training. | Issues of material fact preclude summary judgment on bona fide error defense. |
Key Cases Cited
- Foti v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643 (S.D.N.Y. 2006) (broad interpretation of 'communication' under FDCPA; message can constitute communication)
- Reichert v. National Credit Systems, Inc., 531 F.3d 1002 (9th Cir. 2008) (two-step test for reasonableness of procedures under bona fide error defense)
- Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F. Supp. 2d 1104 (C.D. Cal. 2005) (discusses purpose of communications and relevance to FDCPA enforcement)