Plaintiff’s Unsupported Recollection Can Mean No Genuine Issue of Material Fact Exists in FDCPA Claim

Defense Digest, Vol. 23, No. 3, September 2017

By Michael E. Fitzgerald, Esq.*

District Courts in the Third Circuit have determined that no genuine issue of material fact exists where a plaintiff’s unsupported recollections differ from the evidence presented by the defendant. Self-serving testimony cannot salvage a plaintiff’s case on summary judgment in a case arising under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (FDCPA).

In Chisholm v. AFNI, 2016 U.S. Dist. LEXIS 162303 (D.N.J. Nov. 22, 2016), the plaintiff brought an action against AFNI, alleging violations of FDCPA arising from the volume and frequency of telephone calls placed in connection with AFNI’s efforts to collect a consumer debt. Chisholm was unable to present any evidence that disputed AFNI’s evidence. AFNI’s account notes showed 18 calls to the plaintiff’s cell phone over a two-week period. AFNI also presented evidence that the plaintiff provided his cell phone number to the original creditor and that AFNI ceased communication upon request. AFNI’s evidence was corroborated by the plaintiff’s cell phone records produced by his carrier. Despite this, the plaintiff’s recollection differed, maintaining that he received calls from AFNI “that were not recorded in its records.” The court granted summary judgment for AFNI on the FDCPA claims, explaining that “[t]he standard for deciding when conduct is harassing, oppressive, or abusive is an objective one, turning on the ‘natural consequences’ of a debt collector’s conduct” and not on how the collector’s actions made the consumer feel. In drawing this conclusion, the court recognized that self-serving testimony does not create a question of fact, precluding summary judgment.

In Turner v. McCarthy, Burgess & Wolf, 2016 U.S. Dist. LEXIS 179295 (W.D. Pa. Dec. 27, 2016), the defendant prevailed on a motion for summary judgment. Turner argued that MBW violated the FDCPA by contacting her continuously and repeatedly, on an average of four to five times a day, from December 2014 through May 2015. She also alleged that MBW called her after she made a cease request and that she disputed the debt. Finally, she alleged that she received threats of wage garnishment and legal action.

Turner was unable to present any evidence to create a genuine issue of material fact. The account was not placed with MBW until May of 2015. MBW’s records showed only that four calls were made to the plaintiff. The plaintiff did not know the employer of the two individuals with whom she spoke, and she was unable to secure her cell phone records. She testified that a male collector threatened to garnish her wages, but she did not know who his employer was. MBW produced an affidavit demonstrating that no male collector called her. The court, citing Chisholm v. AFNI, held, “Plaintiff’s vague post-hoc recollections raise only a metaphysical doubt as to the number of calls placed by defendants, which is simply not enough to create a genuine issue of material fact.”

Finally, Reed v. IC Sys., 2017 U.S. Dist. LEXIS 3239 (W.D. Pa. Jan. 10, 2017) drew the same conclusion. The plaintiff brought an action similar to the Turner facts. The defendant’s account notes reflected that it attempted to call the plaintiff’s cell phone 125 times over a span of 135 days, with multiple calls on 38 of those days. Neither side produced evidence that the defendant communicated directly with the plaintiff. On a motion for summary judgment, the court noted that, although the volume of calls seemed relatively high, the plaintiff failed to produce evidence of the defendant’s egregious conduct, including evidence that she disputed the debt or that she made a request to cease contact. Accordingly, the court determined that, because the plaintiff failed to produce such evidence, she failed “[t]o raise a triable issue of fact regarding defendant’s intent to ‘annoy, abuse, or harass.’” In other words, aside from the plaintiff’s self-serving testimony, there was no event that triggered liability under Sections 1692d and 1692d(5) of the FDCPA and that call volume alone was not sufficient to overcome the motion for summary judgment.

*Michael is an associate in our Philadelphia, Pennsylvania office. He can be reached at 215.575.3567 or mefitzgerald@mdwcg.com.

_{Defense Digest, Vol. 23, No. 3, September 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}