Powell v. WEST ASSET MANAGEMENT, INC.
773 F. Supp. 2d 761
N.D. Ill.2011Background
- Powell sued West Asset Management, alleging TCPA and FDCPA violations.
- Defendant allegedly called Powell’s cellular phone 25 times to collect Charmaine Hunter’s debt.
- Powell never had any relationship with AT&T or the Hunter account ending 5555.
- Defendant used an automated dialing system, Guaranteed Contacts, to place the calls.
- Defendant asserted a failure-to-mitigate defense to the TCPA claim; a bona fide error defense to FDCPA was moot by settlement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is failure-to-mitigate a valid TCPA defense? | Powell argues no duty to mitigate under TCPA. | West Asset asserts a damages-deduction defense if damages exist. | Knowledge that mitigation is not required; defense insufficient as a matter of law. |
| Does TCPA impose a duty to mitigate damages? | No duty to mitigate damages under TCPA. | TCPA requires mitigation where applicable. | Court adopts no duty to mitigate under TCPA; defense granted. |
Key Cases Cited
- Holster v. Gatco, 130 S. Ct. 1575 (2010) (grant of certiorari not authority for mitigation defense)
- State ex rel. Charvat v. Frye, 114 Ohio St. 3d 76, 868 N.E.2d 270 (Ohio 2007) (no duty to mitigate TCPA damages recognized by Ohio court)