A district court in the Northern District of California recently denied in part a motion for judgment on the pleadings in a case alleging violations of the Telephone Consumer Protection Act (TCPA), Fair Debt Collection Practices Act (FDCPA), and California’s Rosenthal Act involving collection texts sent to a consumer.
In Ronald Cupp v. First National Collection Bureau, Inc. (First National), First National allegedly sent fifteen debt collection text messages to the plaintiff in the span of a month. The plaintiff claimed he was not the debtor and filed a complaint alleging violation of the TCPA, several sections of the FDCPA, and California’s Rosenthal Act.
The court found that although the plaintiff’s complaint did not allege facts explaining how First National’s text messaging system functions, it was plausible that fifteen messages sent within one month could be sent by an automatic system. The court held that the plaintiff did not need to allege the evidentiary facts in support of his claim, it was enough that the plaintiff asserted a statement showing he could be entitled to relief. The court did not consider First National’s averments about its dialing system because the court held it was not appropriate to do so at the pleadings stage. As a result, the court denied First National’s motion on the plaintiff’s TCPA claim because of the existence of material questions of fact about how First National’s dialing system functioned.
The plaintiff also alleged seven violations of the FDCPA, only one of which survived. The plaintiff claimed that although he called and texted First National to dispute the debt and mailed a “notice of intention to commence action,” the text messages continued. The court held those allegations raised a plausible inference that First National intended to harass the plaintiff in violation of § 1692d(5). The court further noted there is no bright-line rule for the threshold of harassment and intent can be inferred from circumstantial evidence like the nature, pattern, and frequency of calls. In the court’s view, fifteen texts sent within one month was sufficiently similar to other cases finding a claim for relief was stated, and therefore, sufficient to survive First National’s motion. The plaintiff’s Rosenthal Act claim also survived because § 1788.11(d) is similar to § 1692d(5) in the FDCPA.
However, the court found that the plaintiff failed to provide any facts to support his other FDCPA claims and granted First National’s motion as to those claims. The court reasoned that the mere statement that First National violated those provisions, without more, did not demonstrate a violation, and in some of the claims, the facts the plaintiff did provide weighed against finding a violation.
Notably, the court allowed the plaintiff to seek leave to amend his complaint, but advised that if the plaintiff did so, he should be sure to include facts related to his research on the system First National uses to send texts messages, admonishing him to plead his best case.
Our Take:
This case, which may be contrary to the Ninth Circuit’s recent decision in Borden v. eFinancial, reminds us that it can be difficult to defeat a TCPA claim at the pleadings stage and debt collectors may be better served developing facts for a summary judgment motion demonstrating their calling/texting system does not constitute an automatic dialing system under the TCPA. However, when a plaintiff merely alleges a violation under the FDCPA, without alleging facts to support the alleged violation, an early motion to dismiss or for judgment on the pleadings may narrow the issues for summary judgment.