Hicks v. America's Recovery Solutions, LLC, 816 F. Supp. 2d 509

ARS regularly collects debts and placed calls to Plaintiff Albert Hicks but not to Mary Hicks.
Caller IDs often show UNKNOWN and ARS sometimes hangs up without leaving a message.
Plaintiffs allege ARS did not disclose it was a debt collector in messages.
Defendant’s records show 21 calls between August 6, 2009 and November 13, 2009; Plaintiffs allege daily, multiple daily calls over two weeks.
Plaintiffs filed suit on November 12, 2009 alleging FDCPA violations; Defendant moved for summary judgment on September 28, 2010.
The court grants in part and denies in part the motion, leaving §1692d(5) and §1692e(ll) claims intact.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether hanging up without a voicemail violates §1692e(10).	Hicks alleges concealment could mislead the least sophisticated consumer.	No case supports actionable deception from hanging up or not leaving a message.	Summary judgment denied for §1692e(10); not dispositive beyond that provision.
Whether voicemails must disclose debt-collector status under §1692e(11).	Hossein zad eh requires identification in voicemails; Mary Hicks also protected as consumer or household member.	Disclosures in voicemails could create third-party disclosure issues; Hosseinzadeh flawed for broad application.	Summary judgment denied on §1692e(ll); voicemail disclosure required; Mary Hicks protection cited.
Whether the call frequency supports §1692d(5) harassment.	Daily, near-daily calls, including twice daily, show intent to harass.	Volume alone is not dispositive; intent must be shown with context; lower call count here.	Genuine dispute of material fact; summary judgment denied on §1692d(5).
Whether failure to leave messages supports §1692d(6) harassment.	Not leaving messages constitutes harassment by evading meaningful disclosure.	Requiring messages would be more harassing and FDCPA-compliant practice; no material dispute.	Summary judgment for §1692d(6) granted to Defendant.

Hosseinzadeh v. M.R.S. Assoc., Inc., 387 F.Supp.2d 1104 (C.D. Cal. 2005) (voicemail communications can be actionable under FDCPA)
Sanchez v. Client Services, 520 F.Supp.2d 1149 (N.D. Cal. 2007) (54 calls over six months can support §1692d(5))
Tucker v. The CBE Group, Inc., 710 F.Supp.2d 1301 (M.D. Fla. 2010) (fact-specific; raises or defeats inference of intent based on calls)
Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492 (D. Md. 2004) (intent a jury question depending on number of calls)
Harvey v. Great Seneca Financial Corp., 453 F.3d 324 (6th Cir. 2006) (objective standard for FDCPA claims; credibility not considered at summary judgment)
S.D. v. v. v. Adickes v. S.H. Kress & Co., 398 U.S. 144 (U.S. 1970) (summary judgment standard and burden-shifting framework)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (burden of production on movant in summary judgment)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (material fact disputes require trial unless fully resolved)
White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941 (6th Cir.1990) (summary judgment standard; credibility not weighed on motion)