Kayyal v. Enhanced Recovery Company, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAMAR KAYYAL, )

)

Plaintiff, )

)

v. ) No. 17 CV 2718

)

ENHANCED RECOVERY Judge John J. Tharp, Jr.

)

COMPANY, LLC,

)

)

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Samar Kayyal asserts that the defendant, Enhanced Recovery Company (“ERC”),

violated provisions of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et

seq., by repeatedly calling her in an attempt to collect a debt. It is undisputed that Kayyal did not

owe the debt; the dispute centers around whether ERC’s calls—some 40 calls over a three-month

period—violated the FDCPA’s prohibitions on harassing or deceptive conduct. ERC says it did

not and has filed a motion for summary judgment. There are material fact disputes relevant to these

questions that require a jury’s resolution, however, so ERC’s motion for summary judgment is

denied.

BACKGROUND1

ERC is a debt collector; it services debts on behalf of its clients. In December 2016, ERC

was retained by AT&T to service a debt that a third party (unidentified in the record) had incurred

to AT&T. ERC was provided with information such as the name of the debtor and the amount of

the debt owed. Through one of its vendors, a company named TLO, ERC conducted a telephone

1 Except as indicated, the facts are undisputed. Where there is a dispute, however, the Court

is required to credit Kayyal’s version, as she is the non-movant.

number “scrub,” which is a process by which it attempts to find telephone numbers associated with

a particular person. According to ERC, the “scrub” results revealed that there was a “high

probability” that a particular telephone number was associated with the debtor. Id. ¶ 11.

Notwithstanding this optimistic assessment, however, the number belonged not to the debtor but

to Kayyal.

From sometime in December 2016 through March 7, 2017, ERC made approximately forty

calls to Kayyal’s cell phone in an effort to contact the debtor.2 During this period, ERC generally

made no more than one call in a day, but on four or possibly five days, it called Kayyal’s number

twice. Kayyal sometimes answered the calls; on at least some occasions the caller referred to ERC

and Kayyal told the caller to stop calling and/or that they had the wrong number. On other

occasions, Kayyal simply hung up. When Kayyal did not answer, ERC left no voice mail message.

Kayyal learned that the calls were from a debt collector by Googling ERC’s name. No one calling

from ERC, however, told her that she owed a debt until the final call she received.

That call was made on March 7, 2017. On that date, an ERC employee, Christine Wilcox,

asked to speak with the debtor. Kayyal, who picked up the phone, asked why she was being called;

the caller told her that she owed a debt. Kayyal told ERC to “stop calling” and to “take me off your

phone list.” She also said that she was going to call her attorneys. ERC did not place any further

calls to Kayyal’s telephone number after that occasion. This was the only call in which Kayyal had

any conversation with someone calling on ERC’s behalf. As to all of the other calls Kayyal

received, either she or the caller hung up after Kayyal answered and told the caller to “stop calling”

2 The parties dispute the exact number of calls: ERC says it was forty, while Kayyal

contends that it was at least forty-two. The difference is not material.

or that they were calling the wrong number. Kayyal contends that she informed ERC at least 20

times that ERC had the wrong number and asked ERC to stop calling her.

Based on ERC’s repeated calls, Kayyal filed this suit in April 2017, alleging violations of

the FDCPA and the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the

Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”), 815 ILCS 505/1 et seq. ERC has

moved for summary judgment.

DISCUSSION

A court shall grant summary judgment “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A factual dispute is genuine if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). In reviewing a motion for summary judgment, the Court “construe[s] all facts in the light

most favorable to . . . the nonmoving party, who must point to specific facts showing that there is

a genuine issue for trial, and inferences relying on mere speculation or conjecture will not suffice.”

DiPerna v. Chicago Sch. of Prof. Psych., 893 F.3d 1000, 1006 (7th Cir. 2018) (internal quotations

omitted).

I. Plaintiff's Withdrawal of Certain Legal Theories

In her complaint, Kayyal invoked a range of legal theories, contending that she was entitled

to relief under the TCPA, the ICFA, and various provisions of the FDCPA. In response to ERC’s

motion for summary judgment, Kayyal purports to withdraw several "claims," but what she is

really doing is abandoning legal theories rather than dismissing claims. The complaint in this case

asserts only one claim for relief, that arising from the series of phone calls made to her by ERC,

but it also asserts multiple legal theories as to why the facts of her claim entitle her to relief from

ECR. But asserting multiple legal theories does not proliferate the number of claims a complaint

sets forth. A “claim is the aggregate of operative facts which give rise to a right enforceable in the

courts. One claim supported by multiple theories does not somehow become multiple claims."

Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 399 (7th Cir. 2012); see also NAACP v. Am. Family

Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir.1992) (“One set of facts producing one injury creates

one claim for relief, no matter how many laws the deeds violate.”).

With that understanding, I construe Kayyal’s withdrawal of claims as a waiver of any right

to legal relief premised on violations of the TCPA, the ICFA, or §§ 1692f and 1692e(11) of the

FDCPA. In that regard, it is immaterial whether the theories are expressly withdrawn "with

prejudice" or without; Kayyal has made no argument that any of these legal theories entitle her to

relief, and so has surrendered any claim for relief predicated on these theories in the context of this

case or any other. The only legal theories that Kayyal is continuing to advance are those under 15

U.S.C. § 1692d and § 1692e, both of which are part of the FDCPA, and it is to those theories that

I now turn.

II. The Remaining FDCPA Theories

A. Claims under FDCPA §§ 1692d and 1692d(5)

Distilled to its essence, the parties disagree about whether ERC called Kayyal after being

told it had the wrong number and to stop calling, violating FDCPA §§ 1692d and 1692d(5). Section

1692d states “[a] debt collector may not engage in any conduct the natural consequence of which

is to harass, oppress, or abuse any person in connection with the collection of a debt.” Among the

specific examples of prohibited conduct set forth in the statute is “[c]ausing a telephone to ring or

engaging any person in telephone conversation repeatedly or continuously with intent to annoy,

abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). When assessing whether

a defendant’s phone calls were harassing under § 1692d(5), “there are two types of evidence . . . .

First, where a plaintiff has shown that he asked the collection agency to stop calling . . . and the

collection agency nevertheless continued to call the plaintiff . . . . Second, the volume and pattern

of the calls may themselves evidence an intent to harass.” Kube v. Creditors Collection Bureau,

Inc., No. 10 C 7416, 2012 WL 3848300, at *2 (N.D. Ill. Aug. 30, 2012).

Kayyal contends that she told ERC “over 20” times, beginning in December 2016, that it

had the wrong number and to stop calling her. PSOAF ¶ 8. ERC maintains that the first and only

time they were told to stop calling was on March 7, 2017. Def.’s Response to PSOAF ¶ 8. This

dispute presents a credibility determination that a jury, not this Court, must resolve. ERC’s

argument that there is no dispute about when Kayyal told ERC to stop calling is based on an

untenable reading of Kayyal’s deposition testimony. While Kayyal conceded that the March 7 call

was the first and only call during which she had a conversation with anyone calling from ERC, it

is clear from the balance of her testimony that she means that was the only call in which there was

any significant, two-way, dialog with the caller. Kayyal’s testimony is unequivocal that she told

the ERC caller(s) many times before that date (and as early as the first call that she received in

December) that they should stop calling her and/or that they had the wrong number, and that either

she or the caller hung up without a response from the caller. See Ex. C, Pl’s Resp. to Def’s

Statement of Facts, Kayyal Dep. Tr. at 21:1-8; 22:15-20; 24:5-9; 30:16 – 31:13; 31:14 – 32:7;

32:15-21.

Recognizing the problem, ERC also argues that “[a]lthough Plaintiff alleges that she told

ERC that it was calling the wrong number on many occasions, Plaintiff cannot point to a specific

time or date of any of the alleged calls,” and that “[t]he only “evidence” cited by Plaintiff are

Plaintiff’s unsubstantiated, and contradictory “estimates” offered in her deposition.” Def.’s Reply

in Supp. of Summ. J. at 6 (quotations in original).

That is true but of no import. The Seventh Circuit has repeatedly stated that self-serving

testimony by the plaintiff is enough to create a genuine dispute of a material fact and that it is best

left to the jury to determine the credibility of the testimony. See Marr v. Bank of Am., N.A., 662

F.3d 963, 968 (7th Cir. 2011) (“'uncorroborated, self-serving testimony, if based on personal

knowledge or firsthand experience, may prevent summary judgment against the non-moving party,

as such testimony can be evidence of disputed material facts.'“) (quoting Montgomery v. Am.

Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010); see also Brown v. I.C. Sys., Inc., No. 16 C 9784,

2019 WL 1281972 (N.D. Ill. Mar. 20, 2019) (“[t]he fact that plaintiff’s claims rely on self-serving

deposition testimony is no defect at the summary judgment stage”) (internal quotations omitted).

Further, when deciding whether to grant summary judgment, the Court can only make

determinations on matters of law, not determinations of witness credibility. See Omnicare, Inc. v.

UnitedHealth Grp., Inc., 629 F.3d 697, 705 (7th Cir. 2011) (“district courts presiding over

summary judgment may not weigh conflicting evidence . . . or make credibility determinations . .

. both of which are the province of the jury.”) (internal citations and quotations omitted).

There are other material fact disputes a jury must resolve as well. The parties' phone

records, for example, do not agree as to the number and dates of calls from ERC to Kayyal. The

frequency, timing, and pattern of the calls is material to a determination of whether the calls were

harassing or otherwise violative of § 1692d, and therefore presents another question that a jury

could reasonably resolve in Kayyal's favor. See, e.g., Losch v. Advanced Call Ctr. Techs., LLC,

No. 15 C 6644, 2017 WL 1344524, at *3 (N.D. Ill. Apr. 12, 2017) (“As a general rule, whether the

volume and pattern of a debt collector’s calls violates the FDCPA is a jury question.”). In addition,

were a jury to conclude that ERC’s records are no more accurate than Kayyal's memory and

records, they would also be entitled to question the credibility of ERC's claim that it stopped calling

Kayyal the first time she asked them to do so. See, e.g., Brown, 2019 WL 1281972, at *8 (finding

a jury could determine the defendant may have made other mistakes after the initial phone records

produced were inaccurate).

In Brown, the court found that the parties' dispute over whether the plaintiff told the

defendant to stop calling and the number of times that she was called was “material because twenty

calls over two months are not so few and far between that they cannot constitute a violation of §

1692(d)(5) . . . .” 2019 WL 1281972, at *9. Specifically, the Court stated that if the plaintiff “told

defendant that she was not the person defendant was trying to reach and that defendant should stop

calling, [a jury] could interpret twenty calls . . . as evidence . . . of an intent to annoy or harass.”

Id. See also Decker v. Receivables Performance Management, LLC, No. 17 CV 4152, 2019 WL

1112256, at *12 (N.D. Ill. Mar. 11, 2019) (finding a jury could conclude the plaintiff asked the

defendants to stopped calling but continued to call resulting in a violation of § 1692d(5)).

The same is true here. A jury is entitled to credit Kayyal’s version of events, and if they

do, they could reach the conclusion that the calls were made with an intent to cause harassment or

abuse resulting in a violation of § 1692d(5). Accordingly, ERC’s motion for summary judgment

as to 15 U.S.C. §§ 1692d is denied.

B. Claim under FDCPA § 1692e(2)

FDCPA § 1692e states “[a] debt collector may not use any false, deceptive, or misleading

representation or means in connection with the collection of any debt,” while subsection (2) states

that the following conduct violates § 1692e: “[t]he false representation of — (A) the character,

amount, or legal status of any debt; or (B) any services rendered or compensation which may be

lawfully received by any debt collector for the collection of a debt.”

Kayyal has not explicitly invoked subsection (A) of § 1692e(2), but the language in the

complaint aligns with the language in that section rather than subsection (B). Compl. ¶ 52

(“Defendant violated §1692e(2) when it falsely misrepresented the character, amount, or legal

status of the alleged debt.”). The Seventh Circuit has stated that the “test for determining whether

a debt collector violated § 1692e is objective, turning not on the question of what the debt collector

knew but on whether the debt collector's communication would deceive or mislead an

unsophisticated, but reasonable, consumer.” Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991,

995 (7th Cir. 2003); see also Williams v. OSI Educ. Servs., Inc., 505 F.3d 675, 678 (7th Cir. 2007)

(“[t]he unsophisticated consumer is ‘uninformed, naive, [and] trusting,’ but possesses

‘rudimentary knowledge about the financial world, . . . possesses “reasonable intelligence,” and is

capable of making basic logical deductions and inferences.’”) (alteration in original) (quoting

Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 2000)). For

summary judgment to be appropriate, the inquiry is thus: Has Kayyal pointed to a genuine dispute

of material fact about whether ERC falsely represented the character, amount, or legal status of a

debt that would deceive or mislead an unsophisticated, but reasonable, consumer?

In her response to the motion for summary judgment, Kayyal cites numerous cases where

an attempt to collect a debt from a non-debtor constituted a false representation in violation of

§ 1692e. ERC maintains that the cases are distinguishable because they involved conduct by debt

collectors involving affirmative misrepresentations about a debt owed by the putative debtor, such

as sending misleading letters, telling the non-debtor they owe the debt, and trying to persuade the

non-debtor they owe a family member’s debt. See, e.g., Velazquez v. NCO Fin. Sys., Inc., No.

2:11–CV–00263, 2011 WL 2135633 (E.D. Pa. May 31, 2011) (finding plaintiff’s allegation that

defendant addressed and sent a debt collection letter to her stated a claim upon which relief may

be granted under § 1692e). But there is no requirement to show an affirmative misrepresentation

to establish liability under § 1692e; that provision seeks to protect consumers against conduct that

falls short of an affirmative misstatement; it also applies, expressly, to conduct that is misleading

or deceptive for any reason.

ERC argues that Kayyal has not pointed to anything indicating a “genuine issue for trial”

as to how ERC attempted to deceive or mislead her into believing she owed the debt apart from

stating “ERC continued placing calls . . . attempting to collect a debt owed to a third-party.”

PSOAF ¶ 7. This ignores Kayyal’s testimony that during the March 7, 2017 call, ERC’s

representative told her that she owed a debt. Ex. C, Pl’s Resp. at 26:5-8. But even putting that

aside, “merely dunning a person who is not legally obligated to pay the debt” constitutes a false,

misleading, or deceptive representation about the character and status of the debt. Owens v. Howe,

No. 1:04-CV-152, 2004 WL 6070565, *11 (Nov. 8, 2004). “District courts have found that an

attempt to collect a debt from a non-debtor constitutes a false representation as to the character or

status of the debt in violation of 1692e.” Bodur v. Palisades Collection, LLC, 829 F. Supp. 2d 246,

254 (S.D.N.Y. 2011) (collecting cases). The plain import of ERC’s continuing calls over a span of

three months was that Kayyal owed a debt; the Court cannot say that a jury would be unreasonable

in concluding that an unsophisticated consumer could construe a series of 40-plus phone calls from

a debt collector as an assertion that the consumer owed a debt.3 It is true enough that Kayyal

concedes that she only learned of ERC’s status as a debt collector by Googling its name after she

began receiving calls, but that minimal inquiry is not beyond the ken of an unsophisticated

3 It is undisputed that Kayyal was not misled or deceived by ERC’s calls; there is no

evidence that she ever believed that she owed any consumer debt. But Kayyal’s subjective

understanding is irrelevant. The applicable standard is not subjective—whether the consumer

actually believed that the caller was asserting that a debt was owed—but objective: whether an

unsophisticated consumer would be misled or deceived into thinking that she owed a debt. I

therefore respectfully part company with Judge Dow’s ruling in Hayes v. Receivables Performance

Management, LLC, No. 17-cv-1239, 2018 WL 4616309, at *6 (N.D. Ill. Sept. 26, 2018), which

was premised on a lack of evidence that the plaintiff was actually mislead into believing that he

owed a debt.

consumer; it would not be unreasonable for a jury to conclude that even an unsophisticated

consumer, receiving a barrage of calls from the same company, would make some attempt to

discern the caller’s identity. Whether ERC made an affirmative representation that it was seeking

to collect a debt from Kayyal, an unsophisticated consumer may well have come to that conclusion.

And that is enough to create an issue of fact that a jury must resolve.

Accordingly, ERC’s motion for summary judgment as to 15 U.S.C. § 1692e(2) is also

denied.

x x x

For the reasons set forth above, ERC’s motion for summary judgment is denied.

fet By

Dated: September 23, 2019 John J. Tharp, Jr.

United States District Judge

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