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STOP Collector Blog From the law firm of Lemberg & Associates

Court Builds on Foti Ruling in Cerrato v. Solomon & Solomon

In Cerrato v. Solomon & Solomon (3:11-cv-623 (JCH)), the U.S. District Court, District of Connecticut, built on the landmark Foti decision in ruling that autodialed calls not answered by the consumer constitute “communication” under the Fair Debt Collection Practices Act. Ms. Cerrato is represented by Lemberg & Associates.

The circumstances of the case are that, over a period of 21 months, Citibank turned three of Ms. Cerrato’s debts over to Solomon & Solomon for collection. After receiving debt collection calls for the first account, Ms. Cerrato sent Solomon & Solomon a cease and desist letter. After receiving the letter, Solomon & Solomon made six more calls to Ms. Cerrato. Ten months later, the debt collection agency began calling her in reference to the third debt, and called her 117 times over the course of six months. Ms. Cerrato faxed the debt collector a cease and desist letter, together with a copy of her previous cease and desist letter.

The Solomon & Solomon clerk who processed the letter noted that communication should stop for the third account, but not the other two. Still, using an autodialer, the debt collection agency called Ms. Cerrato eight more times after Solomon & Solomon received the letter. Ms. Cerrato says that she chose not to answer the calls after her caller ID indicated that they were from the debt collector. The debt collection agency argues that the eight unanswered telephone calls aren’t “communications” under the Fair Debt Collection Practices Act, and thus can’t be held liable for communicating with Ms. Cerrato after receiving a cease and desist letter. Solomon & Solomon argues that “an unanswered telephone call does not constitute a communication because no information was conveyed; Cerrato never spoke to a Solomon representative.”

In an order denying summary judgment, the court rejected Solomon & Solomon’s citation of Wilfong v. Persolve, LLC, and instead looked at Foti v. NCO Financial Systems, Inc. In that case, “the court held that a prerecorded voice message that did not specifically reference a debt still constituted a communication under the FDCPA.” In this opinion, the court looked to the rationale behind the Foti decision, namely that the statute should be construed broadly. Further, in the Foti case, that court noted that simply stating that the call was from NCO Financial Systems was enough to communicate that it concerned a debt. In this case, the court noted that Foti received one telephone message after one letter from NCO, while Ms. Cerrato had received 117 calls prior to the eight unanswered calls. In other words, Ms. Cerrato knew that it was a debt collector calling. The court also drew parallels to the Foti calls that attempted to entice a return phone call: “In Foti, the court found that the debt collector provided enough information to ‘entice’ a return call by providing its name and return phone number and be referencing a matter that required immediate attention. Solomon provided similar information to Cerrato. Its name and telephone number appeared on Cerrato’s caller ID display, and by calling eight times within one month, it is hard to imagine how Cerrato could not realize that Solomon wanted her immediate attention.” The court went on to write that Solomon & Solomon’s argument would mean that “debt collectors could call consumers however often they wish as long as the consumer does not pick up or the debt collector hangs up before reaching the consumer.”

The judge goes on to cite the Merriam-Webster definition of “communication,” noting that it does not require a two-way exchange or any response from the recipient of the communication.

Solomon & Solomon offered contingency arguments, which were also rejected by the court. One argument said that the eight unanswered calls could fall under the FDCPA approved exceptions, namely to notify Ms. Cerrato that Solomon & Solomon would no longer try and collect the debt, or to tell her that they were going to invoke a specific remedy (such as a lawsuit). The court wrote that, because the calls stopped once the debt collection agency noted Ms. Cerrato’s cease and desist letter on all of her accounts, that argument doesn’t hold water.

Solomon & Solomon’s other contingency argument was that even if the calls constituted communications under the FDCPA, it was a bona fide error and the firm doesn’t have any liability.

Apparently, Solomon & Solomon’s computer system has a field that can be used for a code indicating that a consumer has sent a cease and desist letter. The debt collection agency says employees are trained to enter that code into the account. However, they are not trained to put the code on all of the consumer’s accounts. The debt collection agency says that the cease and desist letter listed only one account, while Ms. Cerrato says that her letter referenced all accounts.

The court found that, since Solomon & Solomon had called Ms. Cerrato six times after she had sent a previous cease and desist letter, “there are issues of material fact as to whether Solomon committed a bona fide error,” as well as whether the debt collection agency had developed reasonable procedures to prevent such a mistake to happen.

Solomon & Solomon says that it has procedures in place to train employees on provisions of the Fair Debt Collection Practices Act, and says that it specifically trains and tests employees about the meaning and importance of a cease and desist letter. Ms. Cerrato disputes this, saying that the debt collection agency’s “testing and literature merely states that employees are allowed to contact a debtor one more time after receiving a cease and desist letter.”

Because the motions for summary judgment were denied, the case will proceed.

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Author
Sergei Lemberg

Sergei Lemberg is the principal at Lemberg & Associates, a consumer law firm that defends consumer rights in the areas of fair debt collection law, fair credit law, and lemon law, among others. He is regularly labeled by the debt collection industry as one of the “most active consumer attorneys” in the U.S.

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