Southern District of California Says Unanswered Calls are Not a Communication

On May 10, 2021, not only did the District Court in the Southern District of California grant summary judgment in favor of the defendant debt collector, it did so on its own motion. Yes- you read that right- the court entered a judgment in favor of the debt collector where the debt collector had not even asked for it to do so.

In the case of Pearson v. Apria HealthCare Group, Et al. (3:19-cv-02400 S.D. CA), a consumer alleged the defendant debt collector violated the Fair Debt Collection Practices Act (FDCPA) and the Rosenthal Fair Debt Collection Practices Act (RFDCPA).  According to the undisputed facts, the entirety of the case centered around three calls that the consumer did not answer. The consumer did not learn that the calls came from a collection agency until she called the number back, and asked for all calls to stop. The debt collector honored the consumer's request and did not make any additional calls or collection attempts. Based on these undisputed facts, the consumer moved for summary judgment on the FDCPA claims.

In reaching its conclusion, the court analyzed the word “communication” as it is defined in the FDCPA. In case anyone needs a refresher (and hasn’t been obsessing over this word since April 21^st when the Hunstein decision came out), the FDCPA defines ‘communication’ as “the conveying of information regarding a debt directly or indirectly to any person through any medium.”  In holding that unanswered calls are not a communication, the court noted that no “information regarding a debt” was conveyed directly or indirectly to the consumer by her receipt of unanswered calls.   Interestingly, in discussing the FDCPA generally and the harms it was meant to prevent, the court noted that the FDCPA was not designed to deter mere information gathering or message delivery. Also of note- the consumer claimed, and the debt collector disputed that the calls were made before 8 am; however, the court deemed that such dispute was irrelevant.

In another interesting twist to this case, although it was the consumer who filed the motion for summary judgment, and the debt collector did not file a cross-motion on the FDCPA claims, the court on its own motion, granted summary judgment in favor of the debt collector on all three FDCPA claims filed by the consumer.   The court found that the facts were undisputed, and since the consumer had a full and fair opportunity to prove her case and failed to do so, it was appropriate to grant summary judgment in favor of the debt collector.

insideARM Perspective:

This decision, of course, does not mean that debt collectors can make as many calls to consumers as they wish as long as they hang up.  Reg F, anyone? That said, anyone who has spent any time in the litigation department of an accounts receivable entity knows that consumer attorneys have filed lawsuits for far less.  For that reason, decisions like this are good to note and keep on hand; you never know when you need a quick way to combat a frivolous case.

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