990 F. Supp. 2d 59
D.N.H.2014Background
- Himes allegedly owes a Target debt and sues multiple defendants for FDCPA, UDUCPA, CPA, TCPA, and related violations.
- Client Services sent a collection letter to Himes on March 15, 2012; Himes disputed the debt and sought validation, and asked no telephone contact.
- Schiff thereafter sent a May 19, 2012 letter demanding $1,089.95 and providing a CN number; it warned of debt collection and offered validation options.
- Himes demanded validation on May 23, 2012 and received, on June 4, 2012, a statement showing a May 8, 2012 balance of $1,089.95 with a $35 late fee; the state court later issued a judgment against Himes.
- Himes alleges two autodialed calls to her cell in August 2012; defendants deny making any calls.
- A New Hampshire circuit court judgment in February 2013 found the Target account belonged to Himes; Himes then filed a federal complaint in August 2012 that was amended in 2012 and later narrowed after discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| UDUCPA enforcement of debt collection | Himes claims misrepresentations and improper collection | No misrepresentations; amounts properly tracked | Count I granted in favor of defendants (UDUCPA claim failed) |
| CPA viability after UDUCPA failure | UDUCPA violations imply CPA violations | If UDUCPA fails, CPA fails too | Count II granted for defendants (CPA claim failed) |
| FDCPA misrepresentation and collection practices | Defendants misrepresented or used deceptive means | No deceptive conduct; validation adequate | Count III granted for defendants (FDCPA claims fail) |
| TCPA autodialer calls and consent | Autodialed calls to cell without consent; TCPA violation | Either no calls or exempted under TCPA; consent not proven | Count IV denied summary judgment; TCPA claim remains viable against Schiff |
Key Cases Cited
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir.2013) (cell-phone TCPA exemptions; no blanket debt-collection exemption for autodialed calls)
- Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir.1999) (validation standards under FDCPA)
- Smith v. Transworld Sys., Inc., 953 F.2d 1025 (6th Cir.1992) (FDCPA validation and debt collection procedures)