3:13-cv-05098
W.D. Mo.Dec 8, 2014Background
- Plaintiff Nidia Lopez sued Mid‑America Accounts Control Bureau, Inc. under the FDCPA, alleging a voicemail failed to disclose it was from a debt collector.
- Undisputed facts: on May 8, 2013 plaintiff spoke with collector Amy Thomas, who identified herself as a debt collector and obtained plaintiff’s permission to leave a voicemail. The call was recorded.
- Plaintiff said she would call back on May 9 but did not. On May 10 Thomas left a voicemail: “This is Amy Thomas with Mid‑America Collections. I need you to give me a call back at 417‑627‑7990.”
- Plaintiff’s sole legal claim was that the May 10 voicemail failed to state the call was placed by a debt collector in an attempt to collect a debt (15 U.S.C. § 1692e(10) and (11)).
- The parties filed cross motions for summary judgment; the court considered the undisputed record and applied the “unsophisticated consumer” standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the May 10 voicemail violated §1692e(11) or was otherwise false, deceptive, or misleading under §1692e when it did not use the word “debt” or explicitly say “debt collector.” | Lopez: the voicemail failed to disclose the call was from a debt collector and was therefore deceptive. | Mid‑America: the initial oral communication on May 8 fully disclosed the debt‑collection purpose; plaintiff consented to a voicemail from the same representative; voicemail naming Mid‑America Collections would not mislead an unsophisticated consumer. | Court granted summary judgment to defendant: no genuine issue of material fact; under the unsophisticated consumer standard, plaintiff could not have been deceived by the May 10 voicemail. |
Key Cases Cited
- Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051 (8th Cir. 2002) (explains FDCPA purpose and the unsophisticated consumer standard for §1692(e) claims)
- Pace v. Portfolio Recovery Assoc., LLC, 872 F. Supp. 2d 861 (W.D. Mo. 2012) (applied unsophisticated consumer standard to voicemail/call disclosure; granted summary judgment to defendant)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct. 1986) (summary judgment standard — moving party’s burden)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct. 1986) (standard for genuine dispute of material fact under summary judgment)