Isaac et al v. RMB Inc et al
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 7/17/2014. (MSN)
2014 Jul-18 AM 08:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALBERT J. ISAAC and
ROSETTA W. ISAAC,
RMB, INC., and
CLOUD & TIDWELL, LLC,
Case No. 2:12-cv-2030-TMP
Following a non-jury bench trial of the plaintiffs’ claims under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq., the court makes the following Findings of Fact and
Conclusions of Law. Much of the evidence was stipulated by the parties
I. Findings of Fact
1. The plaintiffs are husband and wife, residing together in their family home. They do
not know anyone named Elva Whitman or Elva Washington. They do not owe a debt for or on
behalf of anyone by those names.
2. Mr. Isaac suffers from diabetes, diagnosed in 2008, which he controls with diet,
exercise, and avoiding stress. Stress causes his blood glucose to rise, making his diabetes worse.
3. The defendant, Cloud & Tidwell, LLC, was, during the relevant time period, a law
firm specializing in debt collection. The principals in the firm were Brian Cloud and Jay
Tidwell. The firm employed a number of people to make debt collection calls and otherwise
manage collection of debts referred by clients. The firm received approximately 1,400 to 1,500
new collection accounts each month.
4. Cloud & Tidwell has employed a Director of Compliance since at least 2010 to
provide training to employees and to monitor their compliance with the Fair Debt Collection
Practices Act (‘FDCPA”).
Training involves a 90-minute video presentation as well as
Each employee must take and score 100% on a test of his or her
knowledge of the FDCPA before he or she is allowed to make collection calls. All employees
undergo retraining annually.
5. During July 2011, Cloud & Tidwell received a collection account from a creditor
client relating to a consumer debt owed by a person known as Elva Whitman or Elva
Washington. Although the information forwarded by the client included a telephone number
matching that of the plaintiffs, the name, address, and other information identifying the debtor
made no mention of the plaintiffs, and it is agreed by the parties that the plaintiffs have no
responsibility for the debt allegedly owed by Elva Whitman or Elva Washington.
6. As was its standard practice, Cloud & Tidwell forwarded the collection-account
information to an outside vendor to perform a “scrub,” which entails comparing the name,
address, telephone number, and Social Security number of the debtor (Elva Whitman or Elva
Washington) to several databases, looking for changes of address, a listing on the Social Security
Death Index, and any bankruptcy filings by the debtor. If no information is found, the vendor
mails a collection letter to the debtor at the address supplied by the client. In this case, a letter
was mailed to Elva Whitman at the address supplied by the client. Because the letter was sent to
the address of Elva Whitman, plaintiffs did not receive a copy of it.
7. Beginning on July 25, 2011, Cloud & Tidwell began making telephone calls to the
plaintiffs’ home telephone, believing it to be Elva Whitman’s number.
8. At that time, Cloud & Tidwell used a web-based automated dialer called Livevox.
The purpose of the dialer was to dial many numbers, in order to keep collection callers busy
talking to debtors. When an automated call was answered by a live person, the dialer connected
the call to a collection employee of Cloud & Tidwell to discuss payment of the debt owed. If the
automated dialer was answered by voice mail or an answering machine, it automatically
disconnected the call. The Livevox software determined whether a live person answered by how
long the answering party’s greeting lasted. If a pause did not follow a relatively short greeting,
the software was programmed to treat the call as if it had reached voice mail or an answering
machine and disconnect the call.
9. Although plaintiffs began receiving calls on July 25, 2011, they never spoke to a live
person. Mr. Isaac’s manner of answering the telephone – using a long greeting in which he
indicated that the call might be recorded – apparently (but unknown to Mr. Isaac) tricked the
Livevox software into determining that it had reached a recording machine or voice mail,
causing it to disconnect the call. As a result, the plaintiffs received a “hang-up” call almost
daily, first for a few days in late July 2011, and then again for several weeks from late January to
10. On July 29, 2011, the Isaacs wrote and mailed the following letter to Cloud &
TO WHOM IT MAY CONCERN:
Albert J. Isaac, and/or Rosetta W. Isaac do not owe any monies to Cloud
& Tidwell, LLC, or any client(s) of Cloud & Tidwell, LLC, nor do we have any
account. Cloud & Tidwell, LLC telephone calls, that causes our residential
telephone (205)836-3075 to ring, is very annoying, intrusive, and an invasion of
our privacy. Upon Cloud & Tidwell, LLC receipt of this cease communication
letter, we want Cloud & Tidwell, LLC to stop calling our residential telephone
Should Cloud & Tidwell, LLC continue to cause our residential telephone
to ring, hang up when the call is answered, contact us by telephone for
conversation, and/or leave us any voice mail messages. We will perceive these
acts to be hostile, with the intent to harass us.
Albert J. Isaac
Rosetta W. Isaac
(All as in original).
The letter was mailed by certified mail and received by Cloud & Tidwell on
August 1, 2011, as shown by Brian Cloud’s signature on the postal receipt. Cloud & Tidwell
stipulates that it received the letter on August 1, 2011.
12. Cloud & Tidwell processed the letter by attempting to match it to an account number
for a debtor in the firm’s system. 1 Because the letter did not refer to Elva Whitman or Elva
Washington or an account number (because plaintiffs’ were unaware of this information), it took
Cloud & Tidwell until August 4, 2011, to match it to the plaintiffs’ telephone number, which was
then put on a “do not call” list. Calls to the plaintiffs stopped on August 4, 2011.
13. In January 2012, the creditor client who originally sent the Elva Whitman account to
Cloud & Tidwell forwarded the same account to Cloud & Tidwell a second time. The collection
account sent to defendant in January was a duplicate of the account that had been sent the
previous July, having the same debt, debtor, address, and other identifying information. It was
part of a batch of 1,500 accounts sent to Cloud & Tidwell in the month of January 2012.
In reaching this finding, the court finds no credibility in the testimony of Brian Cloud.
Despite his trial testimony that the letter was received and processed, he filed an affidavit in
support of an earlier motion for summary judgment in which he testified that the letter was
“misplaced.” He has offered no credible explanation for these two very different versions of
14. Upon receipt, Cloud & Tidwell again sent the account for “scrubbing,” but because
the scrubbing process did not involve comparing telephone numbers to ones previously put on a
“do not call” list, the duplicate nature of the information was not detected. Again, the plaintiffs
received no collection letter because the account was not theirs and did not involve their address,
only their telephone number.
15. On January 24, 2012, collection calls to the plaintiffs began again. As before, these
calls were initiated by the Livevox automated dialer, which lacked any feature for comparing “do
not call” numbers to those associated with accounts. After this action was filed, Cloud &
Tidwell began using a different automated dialer (TCN software) which cross-references
telephone numbers on a “do not call” list to those supplied by creditors for potential debtors.
With this system, once a telephone number is identified as a “do not call” number, the automated
dialer will not dial the number even if it is re-programmed into the system as a contact for a
16. Between January 24 and April 16, 2012, when they stopped, plaintiffs received in
excess of 40 calls from Cloud & Tidwell, none of which resulted in the plaintiffs speaking to a
live caller. The vast majority were “hang up” calls, which were disconnected when answered by
the Isaacs, and there were four other calls involving inaudible voice messages.
17. On February 16, 2012, an employee of Cloud & Tidwell left the following voice
message on the plaintiffs’ answering machine:
Hello, this message is for Elva Whitman. Please return the call to Barry at the law
firm of Cloud & Tidwell in Birmingham. It is important that you do so. The
number is 866 728 2098, extension 124. Thank you.
Plaintiffs did not return the call, nor did they otherwise communicate to Cloud & Tidwell that
they did not know Elva Whitman or owe her debt.
18. During the timeframe from July 2011 to April 2012, Cloud & Tidwell placed over
110,000 collection calls on all accounts held for collection purposes. Of those, 6,000 calls were
for the client who placed the Elva Whitman account with Cloud & Tidwell for collection.
19. Prior to January 2014, 2 only two explicitly stated regulations or procedures of Cloud
& Tidwell existed for handling mis-identified or wrong telephone numbers or requests that calls
cease, and these were paragraphs 5 and 6 of the “House Rules,” as follows:
5) Wrong Numbers: Whenever advised that a number called is not the correct
number for the party we are looking for, collectors MUST remove that number
from the account or mark it invalid.
6) Do Not Call Requests (DNC’s): Whenever advised that a debtor does not
want to receive anymore calls, the account must be notated as such with the “Do
Not Call” warning enabled and statused appropriately.
(Plaintiff’s Exhibit 1, “Cloud & Tidwell Collections Policy and Procedures Guide,” revised May
II. Conclusions of Law
This case went to trial on two remaining claims by the plaintiffs: (1) that the defendant
continued to make collection calls to their home after being notified to cease, in violation of 15
U.S.C. § 1692c(c); and (2) that defendant placed a call to plaintiffs’ home and left a message
without disclosing that the call was being made by a debt collector for the purposes of debt
Part of Plaintiff’s Exhibit 1 also contains the “Cloud & Willis, LLC Omnibus Policies
and Procedures,” Version 2.1, revised January 2014. It is unclear what parts of this, if any, were
in existence in 2011 or 2012, but it would appear that these “Policies and Procedures” replaced
the “Cloud & Tidwell Collections Policy and Procedures Guide” sometime after the events
involving the Isaacs.
collection, in violation of 15 U.S.C. § 1692e(11). Defendant stipulated to the facts that calls
were made after it received notification to cease in the form of the plaintiffs’ July 29 letter, and
that an employee of the defendant left a voice mail or answering-machine message on the
plaintiffs’ telephone without making the required debt-collector disclosure. Defendant argued
two issues in defense: (1) that the plaintiffs do not have standing to assert a claim under the Fair
Debt Collection Practices Act because they are not “consumers” within the definition used in the
statute 3; and (2) the calls made to the plaintiffs were bona fide errors that occurred despite “the
maintenance of procedures reasonably adapted to avoid any such” errors, consistent with 15
U.S.C. § 1692k(3).
The defendant argues that, under 15 U.S.C. §§ 1692c(c) and 1692e(11), the plaintiffs are
not within the statutory definition of “consumers” and thus lack standing to bring this action.
The defendant further asserts that this lack of standing deprives the court of subject matter
jurisdiction. The argument was raised for the first time after the presentation of the plaintiffs’
evidence at trial. It was raised again after the conclusion of all evidence. Because defendant
asserts this standing argument as a challenge to the court’s subject-matter jurisdiction, it is
At the outset, the court notes that it appears that defendant did not preserve this argument
for trial. Although a nonspecific defense regarding standing was raised in the answer, and an
entirely different standing argument was raised in the motion for summary judgment, this
This defense was raised for the first time in the defendant’s motion for judgment as a
matter of law filed at the conclusion of the plaintiffs’ case in chief at trial. It was not argued in
defendant’s motion for summary judgment, nor was it preserved in the pretrial order.
Affirmative defense 21 in Cloud & Tidwell’s answer does assert that plaintiffs lack standing,
without any further explanation or basis for the defense. It does not explicitly assert that the
plaintiffs are not “consumers” within the meaning of the statute.
argument relating to the Isaacs= status as Aconsumers@ was presented for the first time during
trial. To the extent that the defendant argues standing other than as required for subject-matter
jurisdiction, the argument has not been preserved. It was not presented at the pretrial conference
or made part of the pretrial order (doc. 85). It is well settled that a failure to Aidentify the issue to
the court at the pretrial conference, regardless of whether the issue is a legal or factual one,@ may
result in waiver. Morro v. City of Birmingham, 117 F.3d 508, 516 (11th Cir. 1997) (noting that
having the plaintiff and the court Ablindsided@ or Aambushed@ is Aprecisely what the pretrial
conference and order are designed to avoid@).
The fact that the defendant failed to preserve for trial the issue of whether the plaintiffs
had standing as Aconsumers@ is further supported by the court=s Memorandum Opinion resolving
plaintiffs= and defendant’s motions for summary judgment, in which the court noted that Anone of
the parties dispute that Mr. and Mrs. Isaac are consumers and that RMB and Cloud & Tidwell
are debt collectors as defined in 15 U.S.C. '1692a(3) and (6).@ (Doc. 73, p. 12). Not only did
the defendant not argue this issue on summary judgment, it did not file any motion to reconsider
or otherwise attempt to object or preserve any error on that issue. Insofar as defendant raises the
argument to point out a defect in the merits of the plaintiffs’ case, it was not preserved for trial,
was waived by the defendant, and cannot now be asserted as a defense to the merits of the case.
Defendant argues that the standing question deprives the court of subject-matter
jurisdiction, which is an issue that can be raised at any time prior to judgment regardless of
whether it was preserved in earlier stages of the litigation. Here, the court addresses the standing
argument only as a subject-matter jurisdiction challenge.
The Supreme Court has designed a framework for resolving standing issues, which
involves both Aconstitutional@ and Aprudential@ requirements. Harris v. Evans, 20 F.3d 1118,
1121 (11th Cir. 1994), citing Warth v. Selden , 422 U.S. 490, 498B99, 95 S. Ct. 2197, 2205
(1975); Saladin v. City of Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987). To meet the
Airreducible minimum@ requirements of Article III constitutional standing, a plaintiff must
demonstrate: (1) that he has suffered an actual or threatened injury, (2) that the injury is fairly
traceable to the challenged conduct of the defendant, and (3) that the injury is likely to be
redressed by a favorable ruling. Harris, 20 F.3d at 1121, citing Warth, 422 U.S. at 498-99. By
demonstrating that the plaintiffs received debt collection calls from Cloud & Tidwell that
interrupted their meals or rests, and which caused Mr. Isaac’s blood glucose to rise, resulting in
his becoming anxious and angry, the plaintiffs have proven that they meet the irreducible
minimum requirements of constitutional standing. They suffered an actual injury fairly traceable
to the conduct of the defendant, which is redressable by an award of compensatory damages.
Beyond the constitutional requirements of standing, there are judicially developed
prudential standing considerations, which are intended to self-restrain the courts to a properly
limited role in a democratic society. The Eleventh Circuit Court of Appeals has described
prudential standing as a doctrine essential to preserving the American system of government:
In addition to these constitutional requirements, the court has fashioned three
principles of judicial restraint, which have come to be known as Aprudential@
considerations. These self-imposed constraints are intended to ensure the proper
role of the courts in our tripartite system of government by avoiding judicial
resolution of abstract questions that would be more appropriately addressed by
other governmental institutions. Warth, 422 U.S. at 500, 95 S. Ct. at 2205B06.
We have summarized the three prudential considerations as follows:
1) whether the plaintiff=s complaint falls within the zone of
interests protected by the statute or constitutional provision at
2) whether the complaint raises abstract questions amounting to
generalized grievances which are more appropriately resolved by
the legislative branches; and
3) whether the plaintiff is asserting his or her own legal rights and
interests rather than the legal rights and interests of third parties.
Harris, 20 F.3 at 1121 (quoting Saladin, 812 F.2d at 690). In this case, the issue raised --- to the
extent that the defendant argues a lack of prudential standing --- is whether the Isaacs fall Awithin
the zone of interests protected@ by the FDCPA. Defendant contends that because the Isaacs were
not a debtor Cloud & Tidwell was trying to find, they are not “consumers” within the protections
of the FDCPA, and, therefore, are not within the “zone of interests protected” by the statute. For
reasons discussed below, the court disagrees.
First, the court disagrees that the status of being a “consumer” as defined by § 1692a(3)
implicates the court’s jurisdiction. 4 Although there may be some question whether the Isaacs
can state a claim under some parts of the FDCPA, this does not mean that the court has no
jurisdiction in the case. Despite using the term “standing,” it is not a jurisdictional question.
Second, the court disagrees that the Isaacs were not “consumers” within the meaning of the
statute simply because they did not owe any debt that Cloud & Tidwell was trying to collect. It
is undisputed that the Isaacs were not the debtor Cloud & Tidwell was seeking (Elva Whitman
was), but it is undisputed also that Cloud & Tidwell believed the Isaacs’ telephone number was
somehow associated with Elva Whitman, as they called that number repeatedly looking for her.
In a very real way, Cloud & Tidwell “alleged” (mistakenly) that a person at the Isaacs’ telephone
number owed a debt to their client.
The purpose of the FDCPA is to Aeliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt collection
See 15 U.S.C. § 1692a(3), which defines the term consumer as “any natural person
obligated or allegedly obligated to pay any debt.”
practices are not competitively disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.@ 15 U.S.C. '1692(e). Section 1692a(3) defines as a
consumer covered under the protections of the Fair Debt Collection Practices Act Aany natural
person obligated or allegedly obligated to pay any debt.@ More broadly, the remedial provision
of the FDCPA that authorizes a civil action provides that Aany debt collector who fails to comply
with any provision of this subchapter with respect to any person is liable to such person....@
15 U.S.C. ' 1692k(a) (emphasis added); see Drossin v. National Action Financial Services, Inc.,
255 F.R.D. 608, 612 (S.D. Fla. 2009) (“[B]ecause the FDCPA is designed to protect consumers,
it is liberally construed to effect its purpose.”). The term “consumer” includes those who both
owe a debt and who are “alleged” to owe a debt. Here, plaintiffs received more than 50
telephone calls, all but one of which were inaudible or hang-up calls in which the plaintiffs never
spoke to anyone. It was only in the February 16, 2012, voice message that it became clear to the
Isaacs that defendant was looking for someone named Elva Whitman. Before that call, plaintiffs
had no way of knowing that Cloud & Tidwell did not allege that they owed a debt. Indeed, under
the “least sophisticated consumer” test, upon receiving dozens of telephone calls, they had every
reason to believe that defendant did allege that they owed a debt. Similar to the mistaken
identity calls involved in Drossin v. National Action Financial Services, supra, “[T]there was no
way for Plaintiff[s] to know that [calls were] not intended for [them], but rather [Elva Whitman].
Therefore, from the ‘least sophisticated consumer’ perspective, it is reasonable that Plaintiff[s]
thought [they were] the person who allegedly owed the debt and thus [were] the consumer.”
Drossin v. National Action Financial Services, Inc., 255 F.R.D. 608, 612 (S.D. Fla. 2009). The
plain language of the statute and a fair reading of its purpose compel the conclusion that the
Isaacs are within the zone of interests protected by the FDCPA B the statutory right to be free
from abusive debt collectors.
1. “Consumer” Definition in § 1692a(3) is not Jurisdictional
The crux of the defendant’s argument is that plaintiffs lack “standing” because they do
not meet the definition of being a “consumer” contained in § 1692a(3), and that this lack of
standing implicates the court’s subject-matter jurisdiction. This conclusion is important to the
defendant because challenges to subject-matter jurisdiction are not waivable or forfeitable. As
already noted above, defendant raised this argument for the first time in motions for judgment as
a matter of law at the conclusion of the plaintiffs’ case in chief; it was not clearly pleaded in the
answer and certainly was not preserved in the pretrial order. If, in fact, the issue is jurisdictional,
that does not matter; but if it is not jurisdictional, but simply an element of a particular claim by
the plaintiffs, the question is whether the defendant’s fairly raised the issue in the middle of trial.
In light of the Supreme Court’s recent emphasis on the distinction between jurisdictional
questions and questions merely about the merits or proof of a claim, the court does not believe
that fitting the definition of being a “consumer” under § 1692a(3) is jurisdictional, despite courts
having termed it as a “standing” issue. In Arbaugh v. Y&H Corporation, 546 U.S. 500, 126
S. Ct. 1235, 163 L. Ed. 2d 1097 (2006), the Court noted “the distinction between two sometimes
confused or conflated concepts: federal-court ‘subject-matter’ jurisdiction over a controversy;
and the essential ingredients of a federal claim for relief.” Id. at 503, 126 S. Ct. at 1238. In that
case, the issue was whether the 15-employee requirement of Title VII was jurisdictional or
merely an element of the claim that must be proven to prevail. The Court found it was the latter.
Noting that the jurisdictional provisions of Title VII make no reference of the employeenumerosity requirement, the Court expressed the following test:
If the Legislature clearly states that a threshold limitation on a statute's scope shall
count as jurisdictional, then courts and litigants will be duly instructed and will
not be left to wrestle with the issue…. But when Congress does not rank a
statutory limitation on coverage as jurisdictional, courts should treat the
restriction as nonjurisdictional in character. Applying that readily administrable
bright line to this case, we hold that the threshold number of employees for
application of Title VII is an element of a plaintiff's claim for relief, not a
Arbaugh v. Y&H Corporation, 546 U.S. 500, 515-16, 126 S. Ct. 1235, 1245, 163 L. Ed. 2d 1097
(2006) (internal citations and footnotes omitted).
A few years later, in Henderson ex rel. Henderson v. Shinseki, ___ U.S. ___, 131 S. Ct.
1197, 1202, 179 L. Ed. 2d 159 (2011), the Supreme Court again addressed whether a rule
imposing a time limit on appeals from the Veterans Administration is “jurisdictional,” and the
Because the consequences that attach to the jurisdictional label may be so drastic,
we have tried in recent cases to bring some discipline to the use of this term. We
have urged that a rule should not be referred to as jurisdictional unless it governs
a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction.
Reed Elsevier, supra, at ____, 130 S. Ct., at 1243–1244; 1203 Kontrick, supra, at
455, 124 S. Ct. 906. Other rules, even if important and mandatory, we have said,
should not be given the jurisdictional brand. See Union Pacific, 558 U.S., at ___,
130 S. Ct., at 596.
Henderson ex rel. Henderson v. Shinseki, ___ U.S. ___, 131 S. Ct. 1197, 1202-03, 179 L. Ed. 2d
159 (2011). The Court reiterated the rule in Arbaugh, that unless there is a clear indication that
Congress wanted a particular coverage limitation to be jurisdictional, it would be treated only as
a “claims-processing” rule or an element of the claim itself, not as affecting the court’s
fundamental adjudicatory capacity. Id. at ___, 131 S. Ct. at 1203.
Notwithstanding the use of the term “standing” and its connotations related to subject-
matter jurisdiction, the court does not believe that whether a particular plaintiff can meet the
definition of being a “consumer” under § 1692a(3) of the FDCPA is jurisdictional. First, the
express jurisdictional provision of the FDCPA, § 1692k(d), makes no reference whatsoever to
the requirement that only “consumer” may invoke the statute. It simply states that an action to
enforce liability under the Act can be brought in any appropriate United States District Court,
without regard to the amount in controversy. Thus, there is no clear indication from Congress
that the court’s jurisdiction to adjudicate a claim is conditioned upon the plaintiff meeting that
status. Second, courts have recognized that some parts of the Act simply do not refer to the
“consumer” definition as a condition of the right of action. For example, courts have held that
the provisions found at § 1692e apply regardless of whether the plaintiff is a “consumer.” See
footnote 5, infra. If being a “consumer” within the meaning of § 1692a(3) were jurisdictional, it
would condition the right of suit under the entire Act, not just parts of it. The court concludes,
therefore, that despite cases referring to § 1692a(3) as a “standing” provision, it should not be
understood as establishing a jurisdictional impediment to suit. To the extent that a plaintiff must
meet the definition, it is simply a part of the requirements of proof on the merits, similar to the
employee-numerosity requirement for an action under Title VII.
2. Alleged Failure to Prove an Element of the Claim
Defendant conflates the jurisdictional requirement of standing with the nonjurisdictional
requirement that the plaintiffs prove every element of their claim. As discussed supra, the
constitutional requirement of standing requires no more than that: (1) the plaintiff must have
suffered an actual or imminent injury, or a concrete Ainvasion of a legally protected interest@;
(2) that injury must have been caused by the defendant's complained-of actions; and (3) the
plaintiff's injury or threat of injury must likely be redressable by a favorable court decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560B61, 112 S. Ct. 2130, 119 L. Ed. 2d 351
(1992). This minimal requirement of standing is no doubt met here, where the FDCPA created a
legally protected interest to be free from abusive practices by debt collectors, and the defendant
debt collector admittedly called plaintiffs more than 40 times after receiving the cease-and-desist
letter and left a voice message without the required disclosures. In this case, the court has the
requisite subject-matter jurisdiction under 28 U.S.C. § 1331 that provides the power to adjudicate
these claims. As the Supreme Court reiterated:
Even though decisions since Tennessee Electric have been careful to use the terms
Acause of action@ and Astanding@ with more precision, the distinct concepts can be
difficult to keep separate. If, for instance, the person alleging injury is remote
from the zone of interests a statute protects, whether there is a legal injury at all
and whether the particular litigant is one who may assert it can involve similar
inquiries. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 96B97, and
n. 2, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) (noting that statutory standing and
the existence of a cause of action are Aclosely connected@ and Asometimes
Bond v. United States, ___ U.S. ___, 131 S. Ct. 2355, 2362, 180 L. Ed. 2d 269 (2011). Plainly,
the Isaacs were not “remote” from the zone of interests protected by the statute: they received
calls from a debt collector notwithstanding notifying the collector not to call. They suffered a
real and concrete injury, not a remote or hypothetical injury.
Defendant asserts that the Isaacs are not entitled to recover because they failed to meet
their burden of proving on the merits of their claim that they are Aconsumers@ within the
definition of the statute. The defendant argues that, because the Isaacs did not owe the debt that
Cloud & Tidwell was actually attempting to collect, they were not Aconsumers.@ This argument
is based on the perverse notion that people who actually owe a debt and are harassed by debt
collectors are protected by Congress=s legislation, but those who do not owe the debt B who are
called in error B and are harassed by debt collectors repeatedly dialing the wrong number have no
remedy under the FDCPA.
First, it must be noted that the claims at issue in the trial were that Cloud & Tidwell
violated 15 U.S.C. ' 1692c(c) by placing calls to the Isaacs after they had sent defendant a ceaseand-desist letter, and that the defendant violated 15 U.S.C. ' 1692e(11) by leaving a message on
the Isaacs= answering machine that did not include any disclosure that the caller was a debt
collector. 5 The Eleventh Circuit Court of Appeals has not squarely addressed whether a nondebtor can be considered a consumer under the FDCPA. However, a district court within the
circuit examined a similar issue when a non-debtor who received abusive phone calls sued under
15 U.S.C. 1692c(b) and 1692d. In Whatley v. Universal Collection Bureau, Inc., 525 F. Supp.
1204 (D.C. Ga. 1981), the court noted:
The second part of defendant's motion for partial summary judgment poses the
question whether only the Aconsumer,@ Russell W. Whatley, who is the person
The court notes here that a number of courts have concluded that actions under § 1692e
are not subject to any limitations regarding “consumers.” Although § 1692e(11) refers to written
and oral communications with “the consumer,” this does not limit the persons who may sue on
the basis of a misleading or deceptive debt collection practice. “Reading this provision in
conjunction with § 1692k(a), courts have properly interpreted § 1692e to mean that ‘any
aggrieved party’ may bring an action under the provision.” Rawlinson v. Law Office of William
M. Rudow, LLC, 460 F. App'x 254, 258 (4th Cir. 2012) citing Montgomery v. Huntington Bank,
346 F.3d 693, 697 (6th Cir. 2003) (quoting Wright v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647,
649–50 (6th Cir.1994)); see also Beck v. Maximus, Inc., 457 F.3d 291, 294 (3rd Cir. 2006)
(noting that the FDCPA “is intended to protect both debtors and non-debtors from misleading
and abusive debt-collection practices”). Thus, where Cloud & Tidwell were intending and
attempting mistakenly to make an oral communication with Elva Washington, the purported
debtor and “consumer,” any person aggrieved by the defendant’s failure to make the required
disclosure can bring an action. Here, the Isaacs were aggrieved because they received the
message that lacked the disclosure it was from a debt collector. Lacking the disclosure, they
were deceived as to the nature of the call asking them to telephone the Cloud & Tidwell law
firm. They could not know, and were not informed, whether it involved a debt-collection matter
or some other legitimate business or legal matter upon which a law firm might be calling them.
Aobligated or allegedly obligated@ to pay the debt, 15 U.S.C. § 1692a(3), has
standing to sue under the Act. This is a question of first impression. The Court
answers this question in the negative.
To answer the question, the Court need go no further than to examine the words
and plain meaning of the statute. Plaintiffs, Russell Whatley and his parents,
allege that one of defendant's agents threatened them over the phone in
connection with defendant collection agency's attempts to recover Russell
Whatley's debt to defendant J.C. Penney Company, Inc. If proven, the threat
would violate, at a minimum, 15 U.S.C. § 1692c(b) and 15 U.S.C. § 1692d. See
plaintiffs' complaint, P 7. The threat was allegedly left on the home recording
device of the Whatley family residence.
The civil liability portion of the Act provides that Aany debt collector who fails to
comply with any provision of this subchapter with respect to any person is liable
to such person...@ 15 U.S.C. § 1692k(a) (emphasis added). The liability section is
couched in the broadest possible language; the statute is not limited to
Aconsumers.@ Moreover, a number of violations proscribed by the Act harm
persons other than consumers. Defendants' contention that plaintiff parents lack
standing to sue under the Act leads to the absurd conclusion that Congress created
a piece of consumer protection legislation with a >private attorneys general=
enforcement mechanism, and then failed to provide persons harmed by unfair debt
collection practices with a cause of action. The argument is untenable. There are
certainly no policy reasons consistent with the Act that support the argument.
Accordingly, this Court holds that Aany person,@ as used in 15 U.S.C. § 1692k(a)
includes persons, such as Dorothy and William Whatley, who claim they are
harmed by proscribed debt collection practices directed to the collection of
another person's debt.
525 F. Supp. at 1205-06 (footnotes omitted). But see Kaniewski v. National Action Financial
Services, 678 F. Supp. 2d 541 (E.D. Mich. 2009) (barring recovery by one who knows he does
not owe the debt). 6 Although the decision in Whatley has been criticized in other circuits, the
court finds that the reasoning behind that decision remains sound and should apply to § 1692c(c)
The Kaniewski decision can be distinguished from the instant case because the Isaacs
did not know they did not owe an alleged debt. They did not know why Cloud & Tidwell was
calling, or that, at the very least, Cloud & Tidwell did not allege that they owed a debt.
At least four other circuits have concluded that the FDCPA provides protection to nondebtors mistakenly dunned by a debt collector. See Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d
355, 362 (6th Cir. 2012); Dunham v. Portfolio Recovery Associates, LLC, 663 F.3d 997, 1001
(8th Cir. 2011); Beck v. Maximus, Inc., 457 F.3d 291, 293 (3d Cir. 2006); see also Todd v.
Collecto, Inc., 731 F.3d 734 (7th Cir. 2013). For example, in Dunham, a debt collector, by
mistake, attempted to collect debt not owed by the plaintiff but by someone with a similar name.
The debt collector argued that because Dunham was not the actual debtor, he was not a
“consumer” within the meaning of the FDCPA. The Eighth Circuit rejected this argument,
Simply put, a mistaken allegation is an allegation nonetheless. Thus, we read
§ 1692a(3) to include individuals who are mistakenly dunned by debt collectors.
The Federal Trade Commission (FTC) Commentary supports this conclusion. In
its Staff Commentary, the FTC states that “[a] debt collector must verify a
disputed debt even if he has included proof of the debt with the first
communication, because the section is intended to assist the consumer when a
debt collector inadvertently contacts the wrong consumer at the start of his
collection efforts.” FTC Staff Commentary, 53 Fed. Reg. 50097–02, 50106
(Dec. 13, 1988) (emphasis added).
Dunham v. Portfolio Recovery Associates, LLC, 663 F.3d 997, 1002 (8th Cir. 2011). Likewise,
in Beck, a debt collector, confusing the plaintiff with another woman with a similar name who
was the true debtor, sent an employment verification request to plaintiff’s employer, indicating
that she owed a debt. Even though plaintiff did not owe any debt to the collector, the Fourth
Circuit found she was protected by the act also. The court reasoned that the debt collector
“alleged,” even if mistakenly, that plaintiff owed a debt by seeking employment information
from her employer, and that was sufficient to meet the definition of consumer in § 1692a(3).
Defendant urges this court to follow the reasoning in another case decided in the
Northern District of Alabama, which limited the definition of Aconsumer@ strictly to persons who
actually owed the debt being collected. Stinson v. Receivables Management Bureau, Inc., 2013
WL 1278966 (N.D. Ala. March 26, 2013). The plaintiff in Stinson filed an action against a debt
collector who had called his home more than 100 times to collect a debt owed to St. Vincent=s
Hospital by another person who had stayed in Stinson=s house briefly and had provided Stinson=s
phone number on his hospital records. Stinson was seeking a remedy under 15 U.S.C. '1692d(5)
for intentional harassment, and under '1692c(b) 7 for Aconveying information regarding a debt
directly or indirectly to any person.@ 2013 WL 1278966 at *6. In that case, arising under
different provisions of the FDCPA than this case, Stinson had never notified the debt collector
that he was not the debtor, nor had he told the debt collector to stop calling him.
The court correctly noted that the FDCPA provision cited by plaintiff was a definition,
and not a claim, but also recognized that, to the extent that the count stated a claim under
'1692g(a), the plaintiff did not have standing because he was not a consumer. Plaintiff may
have been attempting to raise a claim that the debt collector violated § 1692c(b) by
communicating with a third party about the debts of another, recovery for which logically is
limited to the debtor, who debt information is conveyed to another, and not the third party who
simply receives the information. This is the situation that arose in another case relied upon by
Cloud & Tidwell. See Meadows v. Franklin Collection Serv. Inc., 2010 WL 2605048 *3 (N.D.
Ala. June 25, 2010), reversed on other grounds by Meadows v. Franklin Collection Serv. Inc.,
414 Fed. Appx. 230 (11th Cir. 2011). Similarly, defendant cites Deuel v. Santander Consumer
USA, Inc., 700 F. Supp. 2d 1306 (S.D. Fla. 2010), for the proposition that a person who does not
owe the debt has no standing. Again, however, the defendant relies upon a case in which the
person who received the calls about a debt sought remedy under § 1692c(b) for communicating
debt information to a third party. Another case relied upon by defendant, Frazer v. IPM Corp. of
Brevard, Inc., 767 F. Supp. 2d 1369, also is unpersuasive in that it was premised on violations of
§ 1692c(a)(2), complaining that the debt collector contacted her directly instead of through her
attorney. In Frazer, the plaintiff was not the consumer because she was not allegedly obligated
to pay the debt incurred by the company she owned; furthermore, the debt was not a consumer
debt covered by the FDCPA because it was a commercial debt. None of the cases cited by the
defendant hold that a plaintiff who writes a cease-and-desist letter, but is repeatedly called
thereafter, does not have standing to bring a claim pursuant to § 1692c(c).
In this case, brought pursuant to §§ 1692c(c) and 1692e(11), the Isaacs had informed the
defendant that they did not owe the debt and had written a letter asking that the defendant cease
and desist calling them. Notwithstanding that notification, Cloud & Tidwell resumed calling the
plaintiffs’ telephone. Unlike the court in Stinson, this court does not believe that the definition
of “consumer” is limited only to those actually owing a debt. By the statute’s plain language, it
also extends to those “alleged” to owe a debt, even if, in fact, they owe nothing. It is not
unreasonable for a person, who continues to receive calls after notifying a debt collector that he
does not owe the debt, to conclude that the debt collector alleges that he owes a debt, therefore
meeting the definition of “consumer” in the statute. This court, like others examining the
purpose of the FDCPA, finds that the intent of the law compels a more liberal application of its
protections to the public. In McDermott v. Randall S. Miller & Assocs. P.C., 835 F. Supp. 362
(E.D. Mich. 2011), the court noted:
In addition, the Court concludes that not extending [the Kaniewski] line of cases
to claims under ' 1692d and ' 1692g is supported by the FDCPA's broad purpose
of eliminating abusive debt collection practices and the legislative history of the
FDCPA. H.R. Rep. No. 131, 95th Cong. 1st Sess. 8 (AThis bill also protects
people who do not owe money at all. In the collector's zeal, collection effort[s] are
often aimed at the wrong person either because of mistaken identity or mistaken
facts. This bill will make collectors behave responsibly towards people with
whom they deal ...@).
835 F. Supp. at 372-73.
A decision reached by another court within the Eleventh Circuit
provided a remedy for a Florida couple who brought an FDCPA claim pursuant to § 1692c(c),
finding they were Aconsumers@ even though the debt collector had called them about a debt owed
to a dentist they had never seen and who practiced in a state where they had never lived. Bishop
v. I.C. System, Inc., 713 F. Supp. 2d 1361 (M.D. Fla. 2010). Although the debt collector in
Bishop did not dispute that both plaintiffs were Aconsumers,@ the defendant argued a hyper20
technical application of the statue, arguing that the Bishops’ letter did not literally tell the debt
collector to Acease further communication.@ 713 F. Supp. 2d at 1368. The plaintiffs in Bishop
informed the debt collector that they had paid Aevery penny that [they] legitimately owe[d],
which is nothing.@ 713 F. Supp. 2d at 1368. The court had no problem finding that the Bishops
were “consumers” under the statute.
Defining the term Aconsumer@ broadly, and interpreting the statute liberally to provide
safeguards to those mistakenly targeted by a debt collector, more adequately serves the stated
congressional purpose of the FDCPA, to Aprotect the public.@ See Bishop, 713 F. Supp. 2d at
Providing a remedy to those wrongly contacted about a debt also serves the plain
language of the FDCPA=s definition of a “consumer” as one who is obligated or Aallegedly
obligated@ to pay a debt. 15 U.S.C. ' 1692a(3). A person can logically presume, when hounded
by a debt collector, that the debt collector is alleging that he is obligated to pay the debt. As
defendant=s witness Brian Cloud testified, it would be a waste of time and resources for a debt
collector to call someone from whom they did not think they could collect payment. 8
The court finds that the plaintiffs meet the definition of being “consumers” for purposes
of both § 1692c(c) and § 1692e(11) because, notwithstanding successfully notifying Cloud &
Tidwell that they did not owe any debt to any client of Cloud & Tidwell, the defendant’s
resumed calling them at a telephone number the defendant knew (had received notice of)
belonged to the Isaacs. The resumption of calls to them, after they notified defendant they did
not owe anything, unmistakably communicated to them that Cloud & Tidwell believed and
The court finds unconvincing the suggestion that receiving phone calls that violate the
letter and the spirit of the FDCPA is simply not bothersome if the person receiving the calls
knows he or she does not owe the debt. As the court in Bishop observed, it is even more
frustrating and harassing to be called and accused of owing a debt one does not owe.
alleged that their telephone number was the debtor’s correct contact number. 9 Being alleged to
owe a debt is enough to be a consumer under the FDCPA.
Because the FDCPA is broadly designed to provide a remedy to Aany person@ who is
harmed by a violation of the Act, and because Cloud & Tidwell proceeded as if they alleged that
the Isaacs were obligated to pay, the Isaacs have demonstrated that they fall within the definition
of Aconsumers@ entitled to a remedy under the FDCPA. Accordingly, the court finds that the
Isaacs have standing to raise the FDCPA claims asserted here and that they have not failed to
prove that element of their claims. The motions for judgment as a matter of law (docs. 107, 108)
are due to be denied.
B. Prima Facie Case
Whether the plaintiffs have established a prima facie showing of liability under
§ 1692c(c) and § 1692e(11) is not disputed. Indeed, the defendant stipulated that it called the
plaintiffs’ home more than forty times after receiving the Isaacs’ cease-and-desist letter on
August 1, 2011, and that the voice message left on their telephone on February 16, 2012, failed
to include the required disclosure that it was from a debt collector for debt collection purposes.
Even without the stipulation, the court has found these facts as described above based on the
evidence submitted by the parties. The defense of the case on its merits centers not on a lack of
proof by the plaintiffs, but on the assertion that these events were bona fide errors excused by
§ 1692k(c). The burden of proof on this defense lies with the defendant.
Although it is true that defendant never explicitly alleged that the persons known as
“Albert and Rosetta Isaac” owed a debt, the key fact is that defendant resumed calling the Isaacs’
telephone after being informed that the Isaacs owed nothing. The fact that Cloud & Tidwell
resumed calling the Isaacs’ telephone number, after it was told that the number did not belong to
the debtor it sought but to the Isaacs, implies that Cloud & Tidwell alleged that the Isaacs owed a
debt. Cloud & Tidwell would have had no reason to call a number it knew belonged to the
Isaacs, unless it alleged that they were obligated to pay a debt. The court will address the bona
fide error argument below.
C. Bona Fide Error Defense
Section 1692k(c) states:
The debt collector may not be held liable in any action brought under this
subchapter if the debt collector shows by a preponderance of the evidence that the
violation was not intentional and resulted from a bona fide error notwithstanding
the maintenance of procedures reasonably adapted to avoid any such error.
Courts have construed this provision to require three elements of proof the defendant debt
collector must show by a preponderance of the evidence: (1) that the act constituting a violation
of the FDCPA was not intentional, (2) that it resulted from a bona fide error, and (3) that there
existed procedures reasonably adapted to prevent the error that failed to do so. See Owen v. I.C.
Sys., Inc., 629 F.3d 1263, 1271 (11th Cir. 2011), quoting Edwards v. Niagara Credit Solutions,
Inc., 584 F.3d 1350, 1352-53 (11th Cir. 2009).
The court addressed Cloud & Tidwell=s assertion of the Abona fide error@ defense at
length in its Memorandum Opinion denying summary judgment, finding that the undisputed
evidence viewed favorably to the plaintiffs failed to demonstrate that the defendant=s procedures
were Areasonably adapted@ to prevent the mistakes of leaving a message without identification as
a debt collector and calling after receiving a cease-and-desist letter. At trial, Cloud & Tidwell=s
story simply changed from Athe letter was misplaced@ to Athe creditor made me do it.@ In an
affidavit supporting summary judgment, Brian Cloud testified that the Isaacs’ cease-and-desist
letter was received by him, but inadvertently misplaced by an employee. At trial, however,
Cloud testified that calls to the plaintiffs resumed because the creditor sent a duplicate collection
account to Cloud & Tidwell, who failed to detect that the telephone number for the debtor was
the same one identified in the Isaacs’ letter received on August 1, 2011. There is no explanation
for the change in the testimony of Brian Cloud, and the court is left to conclude that Cloud filed a
summary judgment affidavit based on mere speculation, which he later discovered was not
The evidence at trial does not persuade the court that Cloud & Tidwell is entitled to
prevail on the bona fide error defense. Although the court finds that Cloud & Tidwell did not
intend to contact the Isaacs when the calls resumed in January 2012 (defendant believed it was
attempting to contact Elva Whitman), and that the calls occurred due to an error in tracking the
telephone number the Isaacs had notified the defendant not to call, the defendant did not prove
by a preponderance of the evidence that its procedures for tracking numbers previously placed on
a “do not call” list were reasonably adapted to prevent the error of such a number being placed in
the system as part of a duplicate account. Defendant admitted that the automated dialer used at
the time did not have a readily available way of cross-checking telephone numbers against a list
of “do not call” numbers, although that capability did exist and is now used by defendant in a
different automated dialer system.
The evidence at trial established that Cloud & Tidwell used an automated dialer knows as
Livevox. When new collection accounts came into the firm, the accounts were “scrubbed” by a
mail vendor to determine whether the contact information associated with the account matched
public databases dealing with forwarding addresses, deaths, and bankruptcy filings. After being
“scrubbed,” the mail vendor mailed an initial debt collection letter to the debtor, directing the
debtor to contact the defendant. Hence, in this case, in July 2011, the collection account for Elva
Whitman was “scrubbed” to determine whether there were any forwarding addresses associated
with the address in the account, whether Elva Whitman was listed as deceased by the Social
Security Administration, and whether Elva Whitman had filed any bankruptcy petitions.
The only alternative explanation is that Cloud decided simply to change his testimony
after concluding that the “lost letter” explanation would not work.
Thereafter, the mail vendor mailed a letter addressed to Elva Whitman at the address associated
with the account. This letter, of course, did not go the Isaacs. The telephone numbers associated
with Elva Whitman (supplied by the creditor) were programmed into Cloud & Tidwell’s
automated dialer to begin making calls to Elva Whitman. One of those numbers belonged to the
The Issacs began receiving automated calls in late July 2011. For whatever reason, 11 the
automated dialer invariably terminated the calls made to the Isaacs, never connecting Mr. or Mrs.
Isaac to a live collection caller. On July 29, 2011, the Isaacs wrote a letter to Cloud & Tidwell
notifying defendant that they did not owe a debt to defendant or its clients and instructing
defendant not to call their telephone number.
Defendant admits it received the letter on
August 1, and that no more calls were made to the Isaacs after August 4, when their number was
added to a “do not call” list maintained by Cloud & Tidwell.
Defendant’s procedures for avoiding calling wrong numbers or mistaken numbers were
reasonable to this point. Cloud & Tidwell had no way of knowing that the telephone number
supplied by the creditor belonged to the Isaacs until it received their letter on August 1.
Thereafter, Cloud & Tidwell promptly placed the number on a “do not call” list and calls to the
Isaacs ceased on August 4. Because defendant had procedures reasonably adapted to deal with
Cloud & Tidwell contends that the hang-up calls were caused by Mr. Isaac’s unusual
way of answering the telephone, which caused the automated dialer to conclude that it had
reached an answering machine or voice mail. The automated dialer software was programmed to
look for a short greeting (such as “Hello”) followed by a pause. If the pause did not occur
quickly, the software associated a longer greeting with voice mail or answering machine
instructions for leaving a message, causing the dialer to terminate the call. Defendant contends
that Mr. Isaac used a longer than usual greeting, saying something like, “This call is being
recorded. How may I help you?,” which the automated dialer took to be a voice mail or
answering machine greeting.
wrong numbers, any calls made through August 4 were nothing more than bona fide errors
corrected as soon as discovered.
In January 2012, however, the creditor that forwarded the Elva Whitman collection
account to defendant in July 2011, forwarded the same collection account to Cloud & Tidwell a
second time. The collection account on Elva Whitman received in January 2012 was an exact
duplicate of the account received and scrubbed in July 2011 --- the same creditor, the same
debtor, the same debt, and the same contact information. The January account underwent the
same “scrubbing” as it had in July 2011, but the telephone numbers associated with the account
were not cross-checked against the “do not call” list on which the Isaacs’ number had been
placed. There also is no evidence of any procedure by which Cloud & Tidwell would attempt to
determine whether collection accounts received by it were mere duplicates of accounts received
earlier. If defendant had attempted to cross-check the January account against earlier collection
accounts, it would have discovered that the January account was an exact duplicate of the earlier
July account on which Cloud & Tidwell had received the cease-and-desist letter from the Isaacs.
That did not occur.
Defendant admits that software technology was and is available through which an
automated dialer can cross-check programmed telephone numbers against a “do not call” list, in
order to prevent the dialer from calling the numbers on the “do not call” list. The automated
dialer used by defendant in 2011 and 2012 (Livevox) did not have ready access to such a
feature. 12 As a result, Cloud & Tidwell resumed making calls to the Isaacs’ telephone number
even though it had received their letter and had properly and promptly processed it by placing
It is unclear to the court whether Cloud & Tidwell’s evidence on this point was that
Livebox did not have the cross-checking feature, or that the feature existed but was difficult to
access. In either event, it was not used and Cloud & Tidwell acknowledged that other automated
dialers had the feature and, in fact, defendant now uses a different dialer with the feature.
their number on a “do not call” list. Unfortunately, when the Isaacs’ number was included in the
duplicate collection account for Elva Whitman months later, defendant had no procedures in
place to detect that a telephone number in the account was already on a “do not call” list. Hence,
the defendant has not shown that it maintained procedures “reasonably adapted” to prevent the
error of calling a telephone number it was on notice not to call. A simple computerized crosscheck of telephone numbers in a collection account against numbers already on a “do not call”
list would have prevented the erroneous resumption of calls to the Isaacs, or at least would have
prompted further investigation.
The court reaches the same conclusion with respect to the voice message left on the
Isaacs’ answering machine on February 16, 2012. Although Cloud & Tidwell offered evidence
that it trains its employees thoroughly on their obligations under the FDCPA, it is undisputed that
an employee left a voice mail or answering machine message at the Isaacs’ telephone number
without making the required debt collector disclosures under § 1692e(11). Plainly, the employee
leaving the message did so intentionally in the sense that he knew he was leaving a message and
that it did not contain the disclosures. Cloud & Tidwell argue that the message was a bona fide
error because the FDCPA has conflicting provisions which, on the one hand, require a debt
collector to disclose that he is a debt collector, but, on the other, preclude disclosing to thirdparties that a consumer owes a debt. Defendant contends that it could not leave the message
without violating one or the other of these provisions.
The Eleventh Circuit had already rejected this argument at the time of the events in this
case. The court of appeals examined the requirements of § 1692e(11) in the context of a
message left on an answering machines in Edwards v. Niagara Credit Solutions, Inc., 584 F.3d
1350 (11th Cir. 2009). In Edwards, a debt collector seeking the safety of the bona fide error
exception argued that it intentionally left out of its message that it was a debt collector seeking to
collect a debt because the message might be heard by a third party, which would run afoul of
another section of the FDCPA. 584 F.3d at 1351, citing 15 U.S.C. ' 1692c(b). Nothing in the
FDCPA, the court of appeals explained, gives a debt collector the right to leave a voicemail
message, or exempts a debt collector from making the requisite disclosures if a message is left.
584 F.3d at 1354. Other courts have examined whether telephone calls from a debt collector
were intended to harass or deceive the consumer when the debt collector chose not to leave a
message when an answering machine is reached, and have found nothing Aharassing, oppressive,
or abusive@ about the practice. Udell v. Kansas Counselors, Inc., 313 F. Supp. 2d 1135, 1143-44
(D. Kan. 2004). Thus, when a debt collector’s call is answered by an answering machine or
voice mail, the collector can elect to leave no message at all, see Udell, supra, or leave a message
with the required disclosures, see Edwards, supra. He may not leave a message lacking the
In any event, the argument that conflicting provisions of the FDCPA created an error
raises nothing more than an error of law, a misinterpretation of the law, which is not an error that
can excuse an apparent violation of the Act. The Supreme Court has held unambiguously that
“the bona fide error defense in § 1692k(c) does not apply to a violation of the FDCPA resulting
from a debt collector's incorrect interpretation of the requirements of that statute.” Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 604-05, 130 S. Ct. 1605, 1624,
176 L. Ed. 2d 519 (2010). Mistakes of law, as opposed to mistakes of fact, cannot constitute a
bona fide error under § 1692k(c). Consequently, the bona fide error defense does not apply to
the defendant’s confusion over whether voice messages without the required disclosures are
Having concluded that the plaintiffs are entitled to recover from the defendant for two
violations of the FDCPA, the court must determine the damages to which they are entitled. As
applicable to this case, 15 U.S.C. § 1692k(a) provides for the recovery of damages by a
successful plaintiff as follows:
Except as otherwise provided by this section, any debt collector who fails
to comply with any provision of this subchapter with respect to any person is
liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2)(A) in the case of any action by an individual, such additional damages
as the court may allow, but not exceeding $1,000; or ….
15 U.S.C. § 1692k(a) (inapplicable provisions omitted). Actual damages under the statute
include emotional distress. “Actual damages under the FDCPA include damages for emotional
distress.” Minnifield v. Johnson & Freedman, LLC, 448 F. App'x 914, 916-17 (11th Cir. 2011),
citing Johnson v. Eaton, 80 F.3d 148, 152 (5th Cir.1996) (noting that the FDCPA not only
requires that the debt collector compensate the debtor for any monetary damages, but also for
“emotional distress or other injury that the debtors can prove the debt collector caused.”).
Statutory “additional damages” in the amount of $1,000.00 is capped in that amount for each
“action,” not each violation. See Harper v. Better Business Services, Inc., 961 F.2d 1561, 1563
(11th Cir. 1992); Latimore v. Gateway Retrieval, LLC, 2013 WL 791258 (N.D. Ga. Feb. 1,
2013) report and recommendation adopted, 2013 WL 791308 (N.D. Ga. Mar. 4, 2013). Punitive
damages, if appropriate, are included in the additional statutory damages and are also capped at
$1,000.00. See Latimore, supra, *13 note 8 (“To the extent that Plaintiff may be seeking
punitive damages pursuant to the FDCPA, such damages fall within the statutory damages to be
awarded and are capped at $1,000.”); see also Thomas v. Pierce, Hamilton, and Stern, Inc., 967
F.Supp. 507, 512 (N.D.Ga.1997) (“the court [found] that punitive damages in excess of
$1,000.00 are not recoverable under the [FDCPA]”); accord Lee v. Security Check, LLC, 2009
WL 2044687, *2 (M.D. Fla. July 10, 2009).
The evidence at trial established that Mr. Isaac suffers from diabetes and that the stress
and anger caused by the telephone calls from the defendant, particularly because they were
almost always hang-up calls, caused his blood sugar to rise above healthy levels. This required
him to exercise more to calm himself and restore a proper blood-glucose balance. Although
there is no evidence that Mr. Isaac suffered any permanent injury, his emotional upset at
receiving the calls exacerbated his diabetes, making him temporarily ill. The actual damages
also include emotional injury manifested in the frustration he experienced. Despite having
informed the defendant that he did not owe them anything and not to call his telephone, the calls
kept coming. Therefore, because Mr. Isaac suffered both emotional distress and physical illness
caused by the calls made to his home after he told the defendant to cease calling, he suffered
actual damages for which he is entitled to recover monetary damages. Balancing the physical
and emotional nature of the injury and the relatively short of period of time it lasted, the court
finds that Mr. Isaac is entitled to recover $2,500.00 in actual damages.
The court also finds that the plaintiffs jointly are entitled to recover statutory “additional
damages” of $1,000.00. Although both Mr. and Mrs. Isaac have sued, the court concludes that
there is only one action with a maximum statutory-damage recovery of $1,000.00 for both
plaintiffs. Under § 1692c(d), the “term ‘consumer’ includes the consumer’s spouse….” Thus, a
husband and wife are regarded as one “consumer” for purposes of recovery of the statutory
maximum. Because the plaintiffs filed and prosecuted this action pro se, they are not entitled to
recover any attorney’s fees, but they are entitled to “the costs of the action.”
In sum, therefore, the plaintiffs are entitled to recover from the defendant a total of
$3,500.00 in actual and statutory damages, plus the costs of the action. A separate judgment will
DATED this 17th day of July, 2014.
T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE
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