Earl V. Baker v. I.C. System, Inc. (2009)

MEMORANDUM OF DECISION

The plaintiff Earl V. Baker brings this action against the defendant I.C. System, Inc., for violation of certain provisions of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.   The plaintiff claims that the defendant debt collection agency contacted certain third parties and disclosed to them that it was attempting to collect a debt from the plaintiff.   In addition to damages for a violation of the federal statute, the plaintiff claims damages for intentional infliction of emotional distress.

The defendant denies the plaintiff's claims.

THE FACTS

The plaintiff is retired.   He worked for the Stanley Works for thirty-five years.   During his retirement, he has worked as a courtesy driver for a local Buick dealership and as a school bus driver.   The plaintiff always paid all his bills on time.

In 2007, he had a dispute with AT & T. The plaintiff had switched his calling plan with AT & T to a less expensive plan, but AT & T continued for some months to charge him the monthly fee for the more expensive plan.   Despite several phone calls during which AT & T assured the plaintiff that his account would be credited for the overcharge, AT & T refused or was unable to properly manage the plaintiff's account, and the higher charges continued to appear.   Understandably frustrated, the plaintiff cancelled his AT & T account altogether, which he was entitled to do.¹  This was the only account of the plaintiff during this time frame that was arguably in default or otherwise disputed by him.

Following the plaintiff's cancellation of his AT & T service, not only did AT & T fail to adjust the plaintiff's account and credit him the proper amounts;  AT & T turned the account over to the defendant for collection.   Communications from the defendant started with collection letters, one mailed in March and one in April 2007.   The defendant made its first phone call to attempt to collect this debt on June 5, 2007.   The number was invalid, however, because that was the very phone line that the plaintiff had caused to be disconnected by AT & T because of AT & T's unprofessional billing practices.

On July 6, 2007, the defendant placed a call to the home of the plaintiff's sister.²  A message was relayed to the plaintiff who called the defendant back the same day.   The plaintiff spoke to an agent of the defendant.   During that call, the plaintiff gave the defendant the plaintiff's correct contact information.

Despite having received updated contact information from the plaintiff-in particular that the plaintiff's home was in Connecticut and that he was on social security that he received at his New Britain home address-the defendant began to make calls to third parties in other states in an effort to collect this debt.

On July 26 or 27, 2007, the defendant placed a call to the 843 area code and spoke to Bernie Sneed, an old friend of the plaintiff who was living in South Carolina.   The defendant told Sneed that it was looking for the plaintiff in an attempt to collect a debt.   Sneed told the caller that the plaintiff did not live at the South Carolina address.   Then Sneed immediately called the plaintiff to let the plaintiff know of the contact.   The plaintiff had not given the defendant permission to call Sneed, or to call anyone else, about the debt.

After hearing from Sneed, the plaintiff once again called the defendant on July 29, 2007, and spoke to one of the defendant's debt collectors.   The plaintiff once again verified his Connecticut address, and told the defendant that he was not going to pay the debt unless he was told to do so by a judge.

Notwithstanding this recent contact with the plaintiff himself on August 9, 2007, the defendant called the 304 area code in West Virginia and contacted the plaintiff's adult son Frankie David Smith concerning this debt.

At no time did this plaintiff ever give the defendant permission to contact any third party concerning the collection matter.

THE FEDERAL LAW OF REGARDING FAIR DEBT COLLECTION

The allegations in the plaintiff's complaint that are supported by the above facts are that the defendant contacted third parties without having the plaintiff's permission to do so and that the defendant used as an excuse that it did not have location information for the plaintiff.   The relevant portion of the Fair Debt Collection Practices Act reads:

15 U.S.C. § 1692c(b)-Communication with third parties:  Except as provided in section 1692b 3 of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

The plaintiff's complaint alleges that the defendant contacted third parties without having the plaintiff's permission to do so.⁴  The evidence amply supports that the defendant violated this section of the Act. Given the chronology of events and the fact that the defendant made a contemporaneous record of the two voluntary contacts initiated in July by the plaintiff, the court finds that the violation was not the result of a bona fide error, but rather that the violation was intentional.

REMEDY

Taking into account the factors specified in 15 U.S.C. § 1692k(b)(1), this court finds that the plaintiff is entitled to damages in the amount of $1,000.   The court also finds that the plaintiff is entitled to attorney fees under 15 U.S.C. § 1692k(a)(3).

CONCLUSION

On the First Count, the court finds for the plaintiff and against the defendant and awards the sum of $1,000, plus a reasonable attorneys fee in the amount of $19,580.   On the Second Count, the court finds for the defendant.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. This was not a telephone contract for a specific duration nor one that had an early termination penalty clause..  FN1. This was not a telephone contract for a specific duration nor one that had an early termination penalty clause.

FN2. The plaintiff's sister did not testify in this case, so the court makes no findings about the legality of this first phone call to that residence..  FN2. The plaintiff's sister did not testify in this case, so the court makes no findings about the legality of this first phone call to that residence.

FN3. 15 U.S.C. § 1692b permits contact with third parties only to obtain location information.   Of the calls to third parties, only the defendant's call to the plaintiff's sister on July 6, 2007, arguably falls into this category..  FN3. 15 U.S.C. § 1692b permits contact with third parties only to obtain location information.   Of the calls to third parties, only the defendant's call to the plaintiff's sister on July 6, 2007, arguably falls into this category.

FN4. The complaint also alleges that the defendant made unlawful disclosures or misleading statements in some of these calls, although the evidence only supports an unlawful disclosure-that the plaintiff owed a debt-in the call with the plaintiff's friend Bernie Sneed.   Unfortunately for the plaintiff, the complaint contains no allegation at all about the substance of the Bernie Sneed phone call, so the court finds no separate statutory violation of 15 U.S.C. § 1692b(2) [debt collector may not state that the consumer owes a debt] as to that call..  FN4. The complaint also alleges that the defendant made unlawful disclosures or misleading statements in some of these calls, although the evidence only supports an unlawful disclosure-that the plaintiff owed a debt-in the call with the plaintiff's friend Bernie Sneed.   Unfortunately for the plaintiff, the complaint contains no allegation at all about the substance of the Bernie Sneed phone call, so the court finds no separate statutory violation of 15 U.S.C. § 1692b(2) [debt collector may not state that the consumer owes a debt] as to that call.

Pittman, Patty Jenkins, J.