A federal judge ruled in favor of an Indianapolis attorney involved in a class-action suit alleging he violated the Fair Debt Collection Practices Act. The judge granted summary judgment to the attorney after finding the class representative fell outside the class definition.

Mark R. Rayl sued Merrill Scooter Moores in May 2009 alleging Moores’ form of initial debt collection communication violated the FDCPA. Moore had been hired to collect past-due homeowner's association fees. The notice of claims filed with the small claims court in each action and served upon the homeowners listed a number to call to reach Moores. Depending on when it was called, it went to one of two voicemail messages regarding the actions. The messages said Moores would only discuss the homeowner’s case at their court date.  

Class certification of the suit was denied in February but was later granted by the U.S. District Court in the Southern District of Indiana’s Indianapolis Division in June. The class consisted of “All natural persons sued by Merrill Moores in the name of Wildcat Run Homeowner’s Association on a consumer debt who called the contact telephone number referenced on the Small Claims complaint and heard a voice mail message recorded by defendant Merrill Moores within one year prior to May 1, 2009.” Rayl was made class representative after Moores didn’t contest class certification and Rayl argued he could prove his claim that he did hear the voicemail.

Both parties filed motions for summary judgment.

It turns out that based on the evidence in the summary judgment record, none of the class members actually had heard either voicemail, or that if they did, Moores had any written communication with them within five days after they called. Rayl couldn’t establish that the voicemails violated the FDCPA provisions regarding initial communications because he was unable to prove he called the voicemail line.

Judge Jane Magnus-Stinson removed Rayl as class representative Oct. 28 and postponed ruling on the merits of the other class members’ claims until a suitable class representative appears in the action. The attorneys for the class have 30 days to locate a new class representative.

Judge Magnus-Stinson denied Rayl’s motion for summary judgment as class representative but didn’t rule at the time as to his individual claim.