Fourth Circuit Affirms Grant of Summary Judgment in Debt Collector’s Favor
On November 14, 2012, the United States Court of Appeals for the Fourth Circuit affirmed the District of Maryland’s grant of summary judgment in favor of Defendant Accounts Receivable Management, Inc. (“ARM”) on a non-debtor’s claim that ARM contacted him to collect the debt of another in violation of the Fair Debt Collection Practices Act (“FDCPA”) and Telephone Consumer Protection Act (“TCPA”).
Significantly, the Court held that a debt collector may use an automated, pre-recorded messaging system to repeatedly contact a non-debtor to obtain location information for the debtor where the debt collector reasonably believes that a previous response from the non-debtor was incomplete. Further, the Court held that the Maryland TCPA cannot create a private right of action where none exists under the same provision of the federal TCPA.
Plaintiff, a well known consumer protection attorney acting pro per, filed a Complaint against ARM for violations of the FDCPA, TCPA, and Maryland TCPA. Plaintiff’s claims arise out of ten (10) debt collection calls allegedly placed to his residence that played a prerecorded message seeking to speak to someone other than the Plaintiff. Both parties moved for summary judgment and the United States District Court for the District of Maryland granted summary judgment in Defendant ARM’s favor, dismissing Plaintiff’s Complaint in its entirety.
Plaintiff appealed grant of summary judgment in favor of ARM as to Plaintiff’s FDCPA and Maryland TCPA claims on the grounds that ARM failed to comply with the location safe harbor provision under the FDCPA and failed to identify itself in its prerecorded message in violation of the Maryland TCPA.
After briefing and oral argument, the Fourth Circuit affirmed grant of summary judgment in favor of ARM. The Court held that ARM contacted Plaintiff to obtain location information for the debtor and reasonably believed that Plaintiff’s conduct in pressing “2” to indicate he was not the debtor, but hanging up before hearing all options or speaking with a live representative, was incomplete. Further, the Court found that ARM reasonably believed Plaintiff had information on the debtor’s location because a Lexis Nexus scrub revealed his number as a possible contact number for the debtor. Thus, the Court held “§ 1692b(3) allowed ARM to continue calling [Plaintiff] until it reasonably believed that it had received a complete response, so ARM’s additional phone calls did not violate the statute [the FDCPA].”
Finally, the Court, following an opinion from the Maryland Court of Special Appeals, held that the Maryland TCPA does not create a cause of action separate from those available under the federal TCPA. Thus, since there is no private right of action under 47 C.F.R. § 64.1200(b) of the federal TCPA, there is likewise no such cause of action under the Maryland TCPA.
A copy of the Court’s memorandum opinion and order is attached here. Worsham v. Account Receivables Management, Inc., No. 11-2390 (4th Cir. Nov. 14, 2012).
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