CHICAGO – A federal judge has refused to dismiss a lawsuit brought against a debt collector, saying the plaintiff could continue with the action accusing the collector of wrongly placing collection calls to him, even after he had sent a fax telling them he was represented by a lawyer.
The judge also said she would likely rule later on the question of whether the plaintiff effectively waived his prior express consent to receive such calls when he sent the fax.
U.S. District Judge Sara Ellis issued a five-page ruling on Oct. 30, rejecting State Collection Service Inc.'s motion for judgment on the pleadings in the class action lawsuit filed by Matthew Bahr over the allegation SCS violated federal law.
Bahr alleged SCS violated federal law when it sent him a letter directing him to speak to one of its representatives after the company was told that Bahr had legal representation. He also claimed SCS violated telecommunications law by calling his number using an automated system without his previous consent.
SCS filed the pleadings motion stating, per the ruling, that Bahr "failed to plead a lack of prior express consent and that he did not effectively revoke his prior express consent to phone calls under the TCPA."
The company is attempting to collect an alleged debt from Bahr, who allegedly owes money to original creditor Advocate Lutheran General.
"From November 2017 to February 2018, SCS sent Bahr a series of collection letters informing Bahr of the debt he owed," Ellis wrote in the ruling. "However, the letters made inconsistent assertions regarding both the account number and the amount owed."
Bahr consulted with an attorney about discrepancies and whether he owed the alleged debt. He faxed a letter to SCS stating that he had an attorney in February, the ruling states, but SCS sent another letter stating that Bahr "would need to contact SCS if he wanted SCS to discuss the account with a third party."
Bahr did not respond, and the company then started calling him via an automated calling system, according to the ruling.
"Having determined that Bahr’s complaint does not conclusively demonstrate consent so as to require dismissal ... the court need not reach SCS’ argument that Bahr’s counsel’s fax did not effectively revoke any prior consent," Ellis wrote. "The court leaves this determination to a later motion for summary judgment upon a more fully developed record."
Bahr is represented by attorney Stacy M. Bardo, of Bardo Law P.C., of Chicago, and attorneys from Chicago Consumer Law Center P.C., of Chicago.
SCS is represented by attorneys from the firm of Bassford Remele, of Minneapolis.
U.S. District Court for the Northern District of Illinois case number 1:18-cv-02910