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How Often Can Debt Collectors Call?

HOW OFTEN CAN DEBT COLLECTORS CALL?  A SURVEY OF 35 YEARS OF FDCPA “CALL FREQUENCY” CLAIMS

How often debt collectors can call you without violating the Fair Debt Collection Practices Act (“FDCPA”)?  There is no express limit — the number of times a debt collector can call depends upon at least fourteen  factors which tend to prove whether the debt collector intended to harass, annoy, or abuse the person called by calling frequently.  The answer to how many times a debt collector can call also depends upon the relevant time period.   Did the calls occur during weeks, months, or even years?  Or did the debt collector call multiple times during one day?  This article extensively examines the outcome of call frequency cases which occurred during brief and long time periods, describes many of the cases, and illustrates the outcomes for comparative purposes in fourteen graphs.  This article also describes cases where the consumers alleged that the debt collector called anywhere from twice a day to twelve times during one day.  Florida FDCPA attorney, Donald E. Petersen, surveyed  over 200 opinions issued by federal trial courts from throughout the United States between 1981 and 2017 and identified at least fourteen facts that influence the outcome of FDCPA call frequency cases.  After extensively analyzing and comparing the facts and outcomes in over 150 of the FDCPA call frequency cases which indicated the number of calls and the duration of the calls, Mr. Petersen concluded that the results are sometimes predictable if one carefully examines the facts of each case besides the total number of calls and the associated time period.  But, the call frequency cases are very difficult to reconcile based solely upon the total number of telephone calls and the duration of the calls.  This article includes fourteen graphs to assist readers in  visualizing the outcomes of cases based upon some of the facts (typically the number of calls and duration of the calls) and identify any patterns in the courts’ decisions.  Two of the charts illustrate the amounts of monetary relief granted to plaintiffs who pursue FDCPA call frequency claims and compares their recovery for any intertwined TCPA claims.

This article discusses four general topics : (1) how many calls does it usually take for a person’s FDCPA call frequency lawsuit to proceed to trial when a “Wrong Person”  (a “Wrong Person” is a person who is not the alleged consumer borrower)  sues a debt collector under the FDCPA for calling too frequently about a stranger’s debt; (2) when can a “Wrong Person” sue a debt collector for violating the FDCPA by calling too frequently while attempting to collect a debt from a spouse, relative, friend, or other person who the “Wrong Person” knows; (3) when can Wrong Persons and consumers sue a debt collector or creditor for violating the Telephone Consumer Protection Act of 1991 (“TCPA”) by “robo-dialing” their cell phone and how the TCPA affords cell phone users much better protection than the FDCPA if the debt collector or a creditor is calling their cell phone; and (4) when Consumers can sue debt collectors for calling too frequently and what what facts the courts are likely to consider in such cases and what weight the courts usually give to such facts.  The discussion of consumers’ call frequency claims includes “call pattern” cases based upon the number of calls received in one day and cases where the debt collector called back after the consumer terminated their conversation by hanging up on the debt collector.

This article concludes by examining the value of FDCPA call frequency claims by describing and comparing the facts of cases where the court awarded damages to the consumer when the defendant defaulted or after the consumer prevailed at trial.  This article also compares the statutory damages obtained by prevailing consumers for their FDCPA call frequency claims with the statutory damages that some of these consumer plaintiffs obtained against the debt collectors who violated the Telephone Consumer Protection Act (“TCPA”) by robo-dialing the consumer’s cell phone.  (Statutory damages under the FDCPA are capped at $ 1,000 per case; the TCPA provides for statutory damages of at least $ 500 per call and up to $ 1,500 per call if the violations were willful.)

 This is an extensive survey of FDCPA call frequency cases.  Not all of the information may apply to your case.  If you want to “jump” to a chapter that interests you, just click on the Chapter Number in the left hand column of the main menu that appears immediately below.  Of course, consumers and “Wrong Persons” are always welcome to contact Mr. Petersen for a free FDCPA or TCPA case evaluation.

 

CHAPTER                                   TITLE
1 Introduction To The FDCPA Call Frequency Survey
2 Debt Collectors Calling A “Wrong Person” About A Stranger’s Debt
3 Debt Collectors Calling About A Person Who The Plaintiff Knows
4 How The Telephone Consumer Protection Act (“TCPA”) Protects Cell Phone Users
5 Debt Collectors’ Calls To Consumers Who Allegedly Owe The Debt May Violate The FDCPA
6 How Much Are FDCPA Call Frequency Claims Worth?
7 Contact Attorney Donald E. Petersen For A Free Consultation About Your FDCPA Or TCPA Case

 

If you want to “jump” to a Section that interests you, just click on the Section Number in the left hand column of the menu that appears at the beginning of each chapter.

CHAPTER 1 : INTRODUCTION TO THE FDCPA CALL FREQUENCY CASE SURVEY

1 . 0 CHAPTER 1 : INTRODUCTION TO THE FDCPA CALL FREQUENCY SURVEY
1 . 1 The FDCPA Prohibits Debt Collectors From Calling Too Frequently
1 . 2 What Facts — Other Than The Number Of Calls And Duration Of The Calls – Do Courts Consider In FDCPA Call Frequency Cases?
       

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THE FDCPA PROHIBITS DEBT COLLECTORS FROM CALLING TOO FREQUENTLY 

 The Fair Debt Collection Practices Act (“FDCPA”)  § 1692d(5) prohibits debt collectors from :

“Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.”

15 U.S.C. § 1692d(5) (2018).  

The Fair Debt Collection Practices Act (“FDCPA”) does not provide specific limits (“bright line “ limits) to how often a debt collector can call a consumer attempting to collect a debt.

Nor do the courts consistently apply the standards when determining whether the frequency and duration of calls plausibly proves that the debt collector intended to harass the consumer with phone calls.  A couple of facts are very helpful if present.

WHAT FACTORS — OTHER THAN THE NUMBER OF CALLS AND DURATION OF THE CALLS — DO COURTS CONSIDER IN FDCPA CALL FREQUENCY CASES?

Most courts consider the call frequency, pattern, and duration of the calls and may find sufficient evidence of harassment based solely on these factors. Some other courts require additional factors to be present before the court will draw the inference that the call frequency and pattern evidences that the debt collector intended to annoy, abuse, or harass the consumer.

In many FDCPA cases alleging that the debt collector called too often, the frequency and pattern of the calls is a “close call” (pun intended) and the court examines whether there is also additional evidence of harassment (“Other Factors”) besides the frequency, pattern and duration of the calls.

Some of the “Other Factors” are very helpful in predicting the outcome of a FDCPA call frequency case when the evidence is presented in opposition to a debt collector’s motion for summary judgment.

The frequently recited lists of Other Factors does not mention the two most predictive facts in a call harassment case : (1) whether the person who receives the call (a) is the consumer debtor the caller intended to reach (b) even knows the debtor (such as a spouse, friend, co-worker, etc.) or (c) is a total stranger to the person who the debt collector intended to call (a “Wrong Person”); and (2) whether the person who received the calls answered at least one of the calls. (In some situations, courts also consider the number of calls that the consumer  answered.)   Courts also examine many Other Factors when determining whether the call frequency may evidence a debt collector’s intent to harass the person called.

Two highly predictive “Other Factors” are often included in the courts’ lists of fact patterns they consider in call frequency cases.   Both of these fall in the

Evaluating FDCPA call frequency cases — how many times a debt collector can call — typically requires more than counting the number of calls and even the number of days during which the calls occurred.

category of “call pattern” cases : (3) whether the debt collector called back on the same day after the consumer (or Wrong Person) terminated a conversation by hanging up on the debt collector; and  (4) how many times the debt collector called during one day.  In appropriate cases, courts sometimes consider : (5)  the number of messages that the debt collector left on the plaintiff’s voice mail.

Some of the Other Factors frequently applied by the federal trial courts consist of conduct which violates a consumer’s rights (but not necessarily a Wrong Person’s rights) under other sections of the FDCPA.   Such violations include cases where the debt collector : (6) falsely accused the consumer of committing a crime; (7) falsely threatened to sue the consumer or claiming the right to exercise a legal remedy it is not entitled to exercise; (8) called at an impermissible time (i.e., between 9:00 p.m. and 8:00 a.m.); (9) continued to call at the consumer’s workplace after being told to stop;  (10) continued to call the consumer after the consumer sends a cease communication letter; (11) continued to call the consumer after the consumer notifies the debt collector that the consumer is represented by counsel.   In these cases, the consumers’ stronger claim is usually the claim based upon the conduct described in this paragraph and not on the call frequency cause of action.   This article discusses how the presence of these independent violations influence the courts’ decisions regarding whether the debt collector’s call frequency also violated the FDCPA.

Courts also find evidence that the debt collector called the plaintiff frequently with the intent to harass, annoy, or abuse consumers based upon Other Factors which may not arise to an independent violation but may provide additional evidence of the debt collectors intent where the debt collector : (12) continues to call after the consumer (truthfully) tells the debt collector that the account was already paid or not owed; (13) continues to call the consumer after the consumer truthfully explains that the consumer is unable to pay due to extenuating but permanent circumstances such as disability, illness, or long term unemployment.

Court also often consider whether the consumer or Wrong Person : (14) told the debt collector to stop calling and, if so, whether the debt collector complied.   Telling a debt collector to “Stop Calling” may approach  a necessary fact in some cases before many judges in FDCPA call frequency cases, doing so does not assure a successful FDCPA call frequency case.   Nevertheless, consumers who receive calls on their cell phones and tell the debt collector to “Stop Calling” often develop TCPA cases which are worth between $ 500 to $ 1,500 per call.

The judicial opinions concerning call frequency and pattern cases are inconsistent about whether many of the “Other Factors” listed above apply in call frequency cases.   Although there appears to be a consensus that courts should consider these factors when evaluating whether the frequency of the calls indicates that the debt collector may have intended to harass the person they called, some courts issue “outlier” opinions holding that a given factor does not count.  Ironically, the courts that tend to maintain a very limited list of Other Factors they will consider tend to be the same courts that require the plaintiff to present evidence of Other Factors regardless of the frequency of the calls.

Many federal district courts apply lists of Other Factors which differs from this list. Many courts appear to treat this list as exclusive while many other courts evaluate other facts which may rise to the level of the Other Factors specifically listed.

The lists of “Other Factors” frequently recited by the courts do not mention the two most predictive facts in a call harassment case : (1) whether the person who receives the call is the consumer debtor or knows the debtor (such as a spouse, friend, co-worker, etc.) or the person that the debt collector is calling is a total stranger to the person who the debt collector intended to call; and (2) whether the person who received the calls answered the calls and, if so, how many calls he or she answered.

This article discusses four general topics : (1) when “Wrong Persons” may sue a debt collector under the FDCPA for calling too frequently about a stranger’s debt; (2) when “Wrong Persons” may sue a debt collector under the FDCPA for calling too frequently while attempting to collect a debt from a spouse, relative, friend, or other person who they know; (3) when Wrong Persons and consumers can sue the debt collector under the Telephone Consumer Protection Act of 1991 (“TCPA”) and how the TCPA affords cell phone users much better protection than the FDCPA if the debt collector or a creditor is calling their cell phone; and (4) when Consumers can sue debt collectors for calling too frequently and what what facts the courts are likely to consider in such cases.  This article also briefly discusses some of the other provisions of the FDCPA which protect consumers from certain types of telephone harassment and often provide the consumer independent grounds to sue the debt collector in addition to pursuing their claims based upon the frequency of the calls.  Finally, this article discusses the cases where the court awarded the consumer damages in FDCPA cases which included call frequency claims after the defendant defaulted on the FDCPA lawsuit or after the consumer prevailed at trial.

CHAPTER 2 : DEBT COLLECTORS CALLING A WRONG PERSON ABOUT A STRANGER’S DEBT 

You can jump directly to the chapter or topic that you are interested in by clicking on the link in the Table of Contents immediately below.

2 . 0 CHAPTER 2 : DEBT COLLECTORS CALLING A “WRONG PERSON” ABOUT A STRANGER’S DEBT
2 . 1 Debt Collectors Often Call People Who Do Not Even Know The Consumer Who Allegedly Owes The Debt
2 . 2 What Are The Differences In The Number Of Calls Required In Order For A FDCPA Call Frequency Case To Survive A Motion To Dismiss And A Motion For Summary Judgment?
2 . 3 Even Wrong Persons May Loose Their FDCPA Call Frequency Case If They Never Spoke With The Debt Collector
2 . 4 Wrong Persons Often Have Potential FDCP Call Frequency Claims
2 . 4 . 1 Give ‘Em Enough Rope (Case Selection & Development)
2 . 5 What Is The Bona Fide Error (“BFE”) Defense? When Does The Bona Fide Error Defense Apply To FDCPA Call Frequency Cases?
2 . 6 Facts Which Might Outweigh Other Evidence Of Intent To Harass
2 . 6 . 1 Debt Collectors Who Are Calling To Collect Multiple Accounts
2 . 6 . 2 The Bizarre Case Of The Errant Call Forwarding
2 . 7 Can I Sue A Creditor For Calling My Home (Landline) Phone About Someone Else’s Debt?

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CHAPTER 2 : DEBT COLLECTORS CALLING A “WRONG PERSON” ABOUT A STRANGER’S DEBT

DEBT COLLECTORS OFTEN CALL PEOPLE WHO DO NOT KNOW THE CONSUMER WHO ALLEGEDLY OWES THE DEBT

For convenience, this article refers to people who receive calls from debt collectors about debts allegedly owed by people that the person who receives the call does not know as a “Wrong Person”.

The courts tend to scrutinize the debt collector’s conduct more carefully when the person that receives the calls does not owe the debt and does not know the consumer who allegedly owes the debt.

Calls made to Wrong Persons are obviously far less excusable than frequent calls to consumers who allegedly owe the debt which the caller is attempting to collect.  The limited data provided through the limited number of opinions arising from Wrong Person cases supports this observation.

Chart Number 1 compares the outcome of : (1) cases where the person who received the debt collection calls was a Wrong Person (indicated by the Green Diamonds); with (2) cases where the person who received the debt collection calls was the person who allegedly owed the debt (indicated by the Blue Circles). (For convenience, this article refers to persons who are allegedly obligated to pay the subject consumer debt as the “Consumer” or the “Debtor”.)

CHART # 1 Shows the FDCPA Call Frequency Cases Filed By Consumers and “Wrong Persons” Where The Court Issued Orders Which Described The Call Frequency Regardless Of Outcome In The Case.

One of the surprising results of this survey was the number of  cases (several) where the Defendant filed a motion for summary judgment attempting to escape liability for calling too frequently where the plaintiff had answered at least one of the calls yet the debt collector called for at least one year.  Fortunately, the courts usually view such cases as at least creating triable issues of fact and allow the case to proceed to a jury to decide whether the debt collector intended to harass, annoy, or abuse the consumer or the person called.

Chart Number 1 also indicates that some plaintiffs filed FDCPA cases which included (if not relied primarily upon) facts which indicate that they received very few calls during brief or even extended time periods.   The closer the Blue Circle is to the X (the horizontal) axis, the lower the total number of calls.

Chart Number 2 is the same as Chart Number 1 except Chart Number 2 focuses on the cases where the duration of the calls was less than 180 days.  By limiting the time period, it’s possible to display the data with somewhat better scale for viewing and comparing the results of these cases.

CHART # 2 Shows The Number Of Calls And Days In Cases Filed By Consumers And “Wrong Persons” Where The Duration Of The Calls Was 180 Days Or Less Regardless Of The Outcome Of The Case.

 

If you are unable to resolve the inconsistencies in the results, you have plenty of company — the courts can not either.   For example, a court in the Central District of California noted “[i]n determining liability under § 1692d(5), courts often consider the volume and pattern of calls made to the debtor.  ***  There is, however, some disagreement among district courts as to the specific volume and pattern of calls that will allow a plaintiff to raise a triable issue of fact of the defendant’s intent to annoy or harass.”   Krapf v. Nationwide Credit, Inc.  (C.D. Calif. 2010) 

This article attempts to resolve some of the facial inconsistencies in the facts of the FDCPA call frequency cases.  But, many of the outcomes are inconsistent.  Intent to harass can be different depending upon the judge who decides the case.

WHAT ARE THE DIFFERENCES IN THE NUMBER OF CALLS REQUIRED FOR A FDCPA CALL FREQUENCY CASE TO SURVIVE A DEBT COLLECTOR’S MOTION TO DISMISS AND A MOTION FOR SUMMARY JUDGMENT ?

A third critical factor is at what stage is the court examining the call frequency claim?

Defendant debt collectors often file a motion to dismiss a FDCPA complaint in order to test whether the plaintiff’s allegations, if proven to be true, are sufficient to make it plausible that the debt collector violated the FDCPA).

The courts allow the consumers and other people who sue debt collectors more leeway at the motion to dismiss stage than when opposing a debt collector’s motion for summary judgment.

The distinction between motions to dismiss and motions for summary judgment  makes sense because the courts consider motions to dismiss at the beginning of the case typically before the plaintiff has had the opportunity to conduct any discovery.   A typical discovery plan includes obtaining the debt collector’s call records and the plaintiff’s telephone carrier.  The defendant’s records often evidence many calls that the plaintiff failed to log and therefore often do not appear in the plaintiff’s call logs.

After discovery is complete, the parties are allowed to file motions for summary judgment which, in effect, ask the court to grant a final judgment to the moving party based upon the evidence submitted with their motion.  The party opposing the motion for summary judgment may submit evidence and argument in opposition to the motion for summary judgment.  If the evidence conflicts on the dispositive issues, the court will allow the case to proceed to trial.  If, on the other hand, the evidence fails to raise a question of fact on a dispositive issue, the court will grant the motion for summary judgment and the judgment has the same effect as if the non-moving party lost at trial.

The call frequency cases reviewed in this study produced results which generally illustrate the differences between rulings arising at the motion to dismiss stage and the motion for summary judgment stage.

Chart Number 3 consists of data in call frequency cases brought by consumers against debt collectors where the debt collector filed either a motion to dismiss or a motion for summary judgment.   Cases involving Wrong Persons are excluded from this data in order to better illustrate the differences in outcomes depending upon the stage of the litigation by limiting the data to cases arising from a common fact pattern (only consumer cases).

In Chart Number 3, the cases where (1) the consumer defeated a motion to dismiss are shown in Green Circles; (2) the court granted the debt collector’s motion to dismiss are shown in Red Circles; (3) the consumer defeated a debt collector’s motion for summary judgment are shown in Green Diamonds; and (4) the court granted a debt collector’s motion for summary judgment are shown in Red Diamonds.

CHART # 3 shows the outcome of call frequency cases filed by consumers when debt collector moved to dismiss or for summary judgment.

 

The Green Diamonds in the lower left hand corner represent cases where the Consumer’s claims survived a motion to dismiss where the consumer alleged  a fairly modest number of calls during a short duration.  Unless discovery produces evidence of calls which the consumer did not recall, debt collectors are likely to target cases such as these for a motion for summary judgment after discovery if the parties are unable to negotiate an amiable settlement.   The consumer may also have other more potent FDCPA claims that he or she is primarily relying upon to obtain a favorable outcome.

The discussions in this article focus on cases where the courts ruled on motions for summary judgment concerning the call frequency claims because the parties have presented evidence and the court discusses the facts of the case.

EVEN WRONG PERSONS MAY LOOSE THEIR FDCPA CALL FREQUENCY CASE IF THEY NEVER SPOKE WITH THE DEBT COLLECTOR

Whether the debt collector ever makes contact with the consumer is an important factor in all cases, even in Wrong Person cases. Once the debt collector knows they are calling a Wrong Person, what legitimate reason would have for continuing to call the Wrong Person? Debt collectors often continue to call the Wrong Person in an attempt to harass them into paying a stranger’s debt but that is not a legitimate collection tactic.

One can assume that if a Wrong Person answers a debt collection call, he or she will promptly (and emphatically) inform the debt collector that they are making a mistake and tell the debt collector not to call. Therefore, the correlation between calls placed to Wrong Persons and whether the person who received the call informed the debt collector of their mistake are probably not independent.

Courts generally agree about harassment in Wrong Person cases. Once the person who receives the debt collection calls answers or returns the debt collector’s call and informs the debt collector “not me” and answers reasonable questions that the debt collector asks in order to confirm that they are calling the Wrong Person, such cases are more likely to survive the higher scrutiny required to survive a defendant’s motion for summary judgment than cases filed by consumers who allegedly owe the debt and who receive a similar number of calls.  If the debt collector stops calling promptly after the Wrong Person tells them they are calling a Wrong Person, then the person who received the calls can enjoy their privacy and seclusion but will not have grounds for a FDCPA lawsuit based upon the frequency of the calls made before the plaintiff notified the debt collector of its mistake.

The case survey produced only one case where a court addressed a debt collector’s motion for summary judgment where a Wrong Person failed to answer or return at least one of the calls and inform the debt collector that they were calling someone other than their intended prey.   The court granted the debt collector’s motion for summary judgment although the debt collector called the Wrong Person 100 times during a 180 day period.   Stinson v. Receivables Management Bureau Inc.  (N.D. Ala. 2013).    Although one case is hardly an adequate sample, Stinson serves as a warning beacon to consumers who are considering pursuing such thin claims as their primary cause of action.

The courts have issued many more opinions deciding whether to grant debt collectors’ motions for summary judgment in cases where the plaintiff was the consumer who allegedly owed the debt.

Chart Number 4 compares the outcome of debt collectors’ motions for summary judgment in cases where : (1) the consumer never spoke with the debt collector; with (2) the debt collector continued to call a consumer even after the consumer answered or returned at least one call from the debt collector.

In Chart Number 4 :  (1) the 31 cases where the consumer answered or returned at least one call from the debt collector and the court denied the debt collector’s motion for summary judgment are shown as Green Diamonds;  (2) the 29  cases where the consumer answered or returned at least one call from the debt collector and the court granted the debt collector’s motion for summary judgment are shown as Red Diamonds; and (3)  the 15  cases where the consumer never answered or returned any calls from the debt collector and the court granted the debt collector’s motion for summary judgment are shown as Red Squares.

CHART # 4 shows the results of call frequency cases and compares whether the consumer answered at least one call.  It is noteworthy that the survey did not produce any cases where a consumer who did not answer or return any of the debt collector’s calls survived the debt collector’s motion for summary judgment.

 

WRONG PERSONS OFTEN HAVE POTENT FDCPA “CALL FREQUENCY” CLAIMS

Chart Number 5 compares the outcome of debt collectors’ motions to dismiss with debt collectors’ motions for summary judgment in cases where the debt collector continued to call a Wrong Person even after the plaintiff informed the debt collector that they were a Wrong Person.  In Chart Number  5 : (1) the 8 cases where the court denied defendant’s motion to dismiss cases filed by Wrong Persons in Green; and (2) the 7 cases where the court granted the defendant’s motion for summary judgment against cases filed by Wrong Persons are shown in Red.

CHART # 5 shows the outcome of cases where the debt collectors filed a motion for summary judgment against call frequency cases filed by plaintiffs who were a “Wrong Person”.

 

The results shown in Chart Number 5 (immediately above) demonstrate that plaintiffs usually have a strong case when they are the Wrong Person.  Usually, the courts will allow a Wrong Person to proceed to trial in a call frequency claim based upon fewer total calls occurring during a longer time period than similar cases involving the consumers who allegedly owe the debt.

As in all FDCPA call frequency cases, it’s necessary to review the order and note the Other Factors which influenced the court.

The highest number of calls where the court granted a debt collector’s motion for summary judgment where a Wrong Person presented evidence that the debt collector called 100 times during a 180 day period.  In this case, the Wrong Person never answered the phone or called the debt collector back.   Stinson v. Receivables Management Bureau Inc.  (N.D. Ala 2013).

The second highest number of calls where the court granted a debt collector’s motion for summary judgment against a Wrong Person  — 55 calls during a 72 day period — occurred where a consumer set his/her call forwarding to automatically forward the debt collector’s calls to a Wrong Person that the consumer did not even know.  The court reasoned that the natural consequence of dialing the consumer’s telephone number was not to be causing a phone assigned to a Wrong Person to ring under these facts.  Isaac v. RMB, Inc., and Cloud & Tidwell, LLC (N.D. Ala 2014) aff’d (11th Cir. 2015)

The third highest number of calls where the where the court granted a debt collector’s motion for summary judgment involved 16 calls but the court did not bother to note the duration of the calls which infers that the calls probably occurred during a relatively lengthy time period.  Harris v. Stellar Recovery (D.  Utah 2015).

Two cases tied for the fourth highest  number of calls where the court granted a debt collector’s motion for summary judgment against a wrong person occurred where the debt collector called a Wrong Person at 14 times.  In Kenny v. Mercantile Adjustment Bureau, LLC, the 14 calls were stretched over a lengthy 150 day period.  Kenny v. Mercantile Adjustment Bureau, LLC (W.D. N.Y. 2013).   In Coleman v. Credit Management, L.P., the 14 calls occurred during a 76 day period and the court ruled that the debt collector proved that it made a bona fide error.   Coleman v. Credit Management, L.P. (N.D. Texas 2011).

In the sixth case, the court granted the debt collector’s motion for summary judgment where the debt collector called a wrong person 6 times during a 107 day period.   Serra v. Mary Jane Elliott, P.C.  (E.D. Mich. 2014).

Two other cases involving that debt collectors called a Wrong Person with excessive frequency — arsing from 1 and 2 calls during respective one day periods — were never viable and further skew the results.

GIVE ‘EM ENOUGH ROPE  (CASE DEVELOPMENT)

As previously stated, Wrong Persons who never speak with the debt collector fail to place the debt collector that the debt collector is calling a Wrong Person.  Debt collection calls to Wrong Persons often provide strong FDCPA cases but not if the Wrong Person never answers or returns any of the calls.

If a debt collector continues to call a wrong person at least twice after the Wrong Person has informed the debt collector of its mistake, then the debt

FDCPA “call frequency” claims require the plaintiff to prove that the debt collector called “continuously” or “repeatedly” with the intent to harass, annoy, or abuse the plaintiff.  Wrong Persons who sued the debt collector for making only one call after they informed the debt collector that they were calling a wrong number did not have  viable call frequency claims.

collector will probably need novel facts to mount a defense.  Unnecessarily filing cases where the second call is already scheduled in the debt collector’s robo-dialer to be called later that day and the debt collector will argue that they did not have sufficient time to suppress the call is a tough road in some courts.  But, one call is insufficient to meet the FDCPA’s requirement that the debt collector cause a person’s phone to ring “repeatedly” or “continuously”.

Allowing the debt collector one free whack also helps prevent.  Because intent is a question of fact which is normally reserved for the jury to decide, plaintiffs seldom file motions for summary judgment in call frequency cases. (Plaintiffs rarely file motions for summary judgment in cases where the call pattern evidences that the debt collector intended to harass the person who received the calls.)

WHAT IS THE BONA FIDE ERROR (“BFE”) DEFENSE ?  WHEN DOES THE BONA FIDE ERROR DEFENSE APPLY IN AN FDCPA CALL FREQUENCY CASE ?

Plaintiffs – even Wrong Persons — do not always prevail when opposing debt collectors’ motions for summary judgment based upon the frequency of the debt collectors’ calls.

Sometimes, debt collectors continue to call a Wrong Person despite having procedures in place which are reasonably designed to prevent mistakes.  It is the debt collector’s burden to prove that it made such a mistake, or in legal jargon, the bona fide error.

Debt collectors should have procedures which prevent them from continuing to call Wrong Persons — especially after the person they call informs the debt collector that they are calling a Wrong Person.

The FDCPA affords debt collectors the opportunity to prove that their calls to a Wrong Person resulted from a bona fide error.  The FDCPA provides :

INTENT

A debt collector may not be held liable in any action brought under the [FDCPA] if the debt collector shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

15 U.S.C.  § 1692k(c) (2018).   

Congress first created a similar bona fide error defense when it enacted the Truth In Lending Act (“TILA”) in 1968.  The bona fide error defense was originally intended to insulate defendants from liability where the defendant designed and followed reliable procedures but a clerical error – such as transposing characters or numbers — occurred.

For example, a debt collector called a Wrong Person 6 times during a 107 day period including 4 calls after the plaintiff informed the debt collector — during three telephone conversations — that the collector was calling the wrong person and she verified her identity by providing the last four digits of her Social Security Number during three different calls. During the first conversation, the plaintiff provided the four digits of her S.S.N. but the debt collector mistakenly coded in “Match” indicating that the S.S.N. the plaintiff provided matched the debtors rather than “No Match”. The plaintiff continued to tell the defendants employees that her S.S.N. did not match the debtor’s S.S.N. but Defendant’s employees responded that their system notes indicated a match and none of them would repeat the S.S.N. drill with the plaintiff. In a very questionable decision, the court granted the debt collector’s motion for summary judgment. Serra v. Mary Jane Elliott, P.C, (E.D. MI 2014).  Few courts probably would have been so lenient on the debt collector.

In a case arising from an odd set of facts, the debt collector placed 21 calls in 29 days including calls placed up to 17 days after the debt collector received a letter from the irate phone user reminding the debt collector that he was the “wrong person” and to stop calling him about his daughter’s medical account. The district court granted defendant debt collector’s motion for summary judgment based upon defendant’s bona fide error defense. The defendant employed two people whose duties included reviewing letters such as the letter from plaintiff and entering codes to assure that defendant would not continue to call such persons. Unfortunately, both of these employees were on medical leave during the 17 day period.  Isaac v. RMB, Inc. and Cloud & Tidwell, LLC (N.D. Ala. 2014).

FACTS WHICH MIGHT OUTWEIGH OTHER EVIDENCE OF INTENT TO HARASS

Some cases present unusual facts which may outweigh other evidence that the debt collector called with the intent to harass, annoy, or abuse the person they called — even in Wrong Person cases.   Plaintiff’s whose cases rely on relatively modest call frequency patterns are obviously the most vulnerable.

DEBT COLLECTORS WHO ARE CALLING TO COLLECT MULTIPLE ACCOUNTS MIGHT WIN 

What happens when a debt collector is attempting to collect more than one account and the consumer instructs the debt collector to “stop calling” and the debt collector stops calling about that account but continues to call about other accounts? Does the debt collector have a viable bona fide error defense along the lines of “but, your honor, we did not realize that we were attempting to collect more than one account from the consumer” or “our system will not allow us to sort the accounts by telephone number so we could prevent all calls to the consumer.” The results in such cases could go either way.

Debt collectors sometimes argue that they were tripped up by multiple accounts. Anticipating and negating the debt collector’s excuse helps the consumer stop unwanted calls and improves their potential case if the debt collector fails to search for multiple accounts.

Debt collectors may prevail where the debt collector obeyed requests to stop calling a wrong person but continued to call about other accounts. Although the debt collector may not have solid grounds for a bona fide error defense, the debt collector may argue that the fact that it complied with the plaintiff’s request as to the specific account that the debt collector called about proved that the debt collector did not intend to annoy or harass the plaintiff.

In Kerwin v. Remittance Assistance Corp., the debt collector called a “wrong person” 5 times during a 65 day period but defendant made 3 of these calls after the plaintiff told the debt collector that he was the “wrong person”.  The defendant debt collector moved for summary judgment and argued that the calls placed after it discovered it was calling the wrong person were the result of a bona fide error — the debt collector’s “system” required employees to remove each of the accounts one at a time and did not allow a global block. The court found that there were questions of fact for the jury to decide whether the error was bona fide.   Kerwin v. Remittance Assistance Corp., (D. Nev. 2008).

A district court granted a district court granted debt collector’s motion for summary judgment where the debt collector called the consumer debtor’s brother 14 times in 5 months. The plaintiff allowed his brother to use plaintiff’s cell phone number when the brother checked into a hospital which eventually resulted in 10 different accounts being opened. After the accounts went into collections, the plaintiff told the debt collector to stop calling 4 times and the debt collector removed each of those 4 accounts from their calling list without removing the number from their “system” or scrubbing the plaintiff’s number from his brother’s other accounts.  The court ruled that the calls — 14 calls during 5 months —  were insufficient to evidence harassment. Although the plaintiff argued that his case was distinguishable from typical call frequency cases because of the “multiple” requests to stop calling, the court relied upon defendant debt collector’s obeying each of those four requests as evidence that the debt collector did not intend to annoy or harass the plaintiff.   The court granted the debt collector’s motion for summary judgment.  Kenny v. Mercantile Adjustment Bureau, LLC   (W.D.  N.Y. 2013).  I doubt the debt collector would have escaped liability this easily in most courts especially if the plaintiff had not originally authorized his brother to provide his cell phone number to the medical providers.

Consumers have fared better in multiple account cases.

THE BIZARRE CASE OF THE ERRANT CALL FORWARDING

In a case which is reminiscent of “Ground Hog Day”, a Wrong Person received 16 calls from a debt collector despite telling the debt collector that he was the Wrong Person 8 times! At the beginning of this path to telephone hades, the

Repeated calls from a debt collector asking to speak to someone who you do not even know probably feels like “Ground Hog Day”.

debt collector was stumped why it was calling the plaintiff and could not even find his number in their system. Eventually, the debt collector removed the number that it was dialing to attempt to call the consumer who allegedly owed the debt — a stranger to the plaintiff — from the defendant’s system so that the plaintiff would not receive calls intended for the consumer. During litigation, the plaintiff discovered that someone that the plaintiff did not know had set their call forwarding so that calls from the debt collector would be forwarded to the plaintiff’s telephone number. Erh!  The court reasoned that calls to plaintiff were not the natural consequence of dialing the alleged debtor’s telephone number and granted summary judgment for the debt collector. Harris v. Stellar Recovery (D. UT 2015).

CAN I SUE A CREDITOR FOR CALLING ME ON MY HOME PHONE (LANDLINE) ABOUT SOMEONE ELSE’S DEBT?

The Fair Debt Collection Practices Act applies only to debt collectors. As a rule of thumb, a debt collector is a company that doesn’t become involved with the account until it is already delinquent. The distinctions between debt collectors and creditors can be quite technical and are beyond the scope of this survey. But, the rule of thumb is very accurate in most situations.

Florida and a few other states have collection practices acts which apply to creditors as well as debt collectors. The Florida Consumer Collection Practices Act (“FCCPA”), prohibits no person shall :

“(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.”

Florida Statutes, § 559.72(7) (2018), So, if the Wrong Person is a member of the consumer debtor’s family, she or he can sue an original creditor for violating the FCCPA by calling too frequently. If the caller is a debt collector and the Wrong Person is a family member, the Wrong Person can sue a debt collector for violating the FCCPA by calling too frequently as well as the FDCPA call frequency claims.

Regardless whether the caller is an creditor or a debt collector, if the caller is calling the Wrong Person’s cell phone, the Wrong Person may have TCPA claims which may greatly exceed even the full amounts of statutory damages available under the FDCPA and the FCCPA.

 

 

CHAPTER 3  : DEBT COLLECTORS CALLING ABOUT PEOPLE WHO THE PLAINTIFF KNOWS 

 

3 . 0 CHAPTER 3 : DEBT COLLECTORS CALLING ABOUT PEOPLE WHO THE PLAINTIFF KNOWS
3 . 1 Can I Sue A debt Collector For Calling Me About A Friend’s Or Relative’s Debt
3 . 2 How Often Can A Debt Collector Call A Relative Or A Friend Attempting To Locate The Consumer?
3 . 3 Can A Debt Collector Call Me About A Deceased Relative’s Debt?
3 . 4 Can A Debt Collector Call Me About My Husband’s Or Wife’s Debt?

 

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CHAPTER 3 : DEBT COLLECTORS CALLING ABOUT PEOPLE WHO THE PLAINTIFF KNOWS 

CAN I SUE A DEBT COLLECTOR FOR CALLING ME ABOUT MY FRIEND’S OR RELATIVE’S DEBT?

Does a debt collector violate the FDCPA by calling a non-debtor’s telephone number if the consumer provided the non-debtor’s telephone number as her own when she applied for the account that the debt collector is trying to collect? Well, the answer often depends upon whether the non-debtors who subscribe to the telephone number ever informed the debt collector that the consumer could not be reached at the non-debtor’s telephone number.  

If the non-debtor telephone subscribers do not answer the telephone even once and inform the debt collector that they’re calling an obsolete number — and probably be requested to provide the consumer’s location information — then the “no contact” cases described above indicate that the non-debtor — especially non-debtors who do are not typical Wrong Persons, are unlikely to prevail. This may be true even where the debt collector places a very high number of telephone calls.

Defendant debt collectors often cite Tucker v. CBE Group for the proposition that debt collector who called 57 times (during an unstated time period) including 6 calls which resulted in messages and called up to 7 times per day did not violate the FDCPA by calling too frequently. In Tucker, plaintiff’s daughter (the consumer) apparently lived with her parents’ house for 12 months during the past 2 – 3 years. By the time the debt collector began calling the Tuckers, the consumer daughter had moved out of her parent’s home. The debt collector ran an Accurint search (a/k/a “skip trace”) to locate the daughter and the parent’s telephone number was listed as a number for the daughter.

The debt collector left six messages which stated that they were calling the daughter. The pre-recorded messages stated :

“This message from the CBE Group is intended for [consumer / daughter].  If you are not the identified recipient of this message, please hang up or disconnect.  If you are the identified recipient of this message, please hold the line.  By continuing to listen to this message, you acknowledge that you are [consumer / daughter].   This is the CBE Group.  This is an attempt to collect a debt by a debt collector; any information obtained will be used for that purpose.  Please contact me at [XXX-XXX-XXXX].  Again, the number is [XXX-XXX-XXXX].”

Although plaintiff sued the debt collector for calling too frequently with an intent to harass, the plaintiff also alleged that the debt collector violated four other provisions of the FDCPA including allegations that the debt collector : (1) falsely represented “the character, amount, and legal status of Plaintiff’s alleged debt because Plaintiff does not owe the debt”; (2) used “false and deceptive means in an attempt to collect a debt from Plaintiff because Plaintiff does not owe the debt alleged by the Defendant; (3) used “false and deceptive means in an attempt to collect a debt from Plaintiff that is not authorized by the agreement because Plaintiff does not owe the debt”; and (4) failed “to provide appropriate notice of the debt within 5 days after the initial communication.”

But, the Tucker plaintiff understood that the debt collector was attempting to collect an alleged debt from his daughter and not from him.  Defendant CBE’s voicemails stated : 

“This message from the CBE Group is intended for Stacey Tucker. If you are not the identified recipient of this message, please hang up or disconnect.”

Tucker.   At his deposition, the plaintiff admitted that he knew the debt collector was not attempting to collect a debt from him. Despite these adverse facts and plaintiff’s own testimony at his deposition, the plaintiff failed to amend his complaint to drop the allegations besides the call frequency claim.

Tucker arises from facts which are very adverse to the plaintiff. The debt collector attempted to call a consumer at her parent’s telephone number associated with an address where the consumer had lived within the past 2 – 3 years and, more importantly, the parents never communicated with the debt collector to inform them that the number was not a valid number for their daughter and/or to request that the debt collector stop calling. Tucker v. CBE Group, Inc., 710 F.Supp.2d 1301 (M.D. FL 2010).

The court also granted summary judgment against the Tucker on all other claims and even sanctioned the Tuckers and their counsel for violating Rule 11, Federal Rule of Civil Procedure, for continuing to litigate the case after the plaintiff should have known that the case was without merit.

Defendants and many courts cite Tucker for the proposition that debt collectors who call 57 times do not violate the FDCPA without also noting that the plaintiff in Tucker never answered any of the debt collector’s telephone calls and never called the debt collector back. Tucker is, in many respects, a typical “no contact” case and its authority should be limited to “no contact” cases.

HOW OFTEN CAN A DEBT COLLECTOR CALL A RELATIVE OR FRIEND ATTEMPTING TO LOCATE THE CONSUMER?  

One of the most common reasons — or excuses — that debt collectors give for calling third parties is their claim that they needed “location information” concerning the consumer.

The FDCPA defines “location information” as “a consumer’s place of abode and his telephone number at such place, or his place of employment.” 15 U.S.C. § 692a((7) (2018).

A debt collector can not continue to call someone other than the consumer if the debt collector knows the consumers : (1) home address and telephone number; or (2) where the consumer works.

And debt collectors are limited what they can say when they contact third parties seeking the consumer’s location information. The FCPA provides that :

“Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall—

        (1) identify himself, state that he is confirming or correcting location information            concerning the consumer, and, only if expressly requested, identify his employer;

        (2) not state that such consumer owes any debt;

        (3) not communicate with any such person more than once unless requested to do           so by such person or unless the debt collector reasonably believes that the earlier           response of such person is erroneous or incomplete and that such person now has           correct or complete location information;

         ***

         (6) after the debt collector knows the consumer is represented by an attorney with           regard to the subject debt and has knowledge of, or can readily ascertain, such                 attorney’s name and address, not communicate with any person other than that               attorney, unless the attorney fails to respond within a reasonable period of time to           communication from the debt collector.”

15 U.S.C. § 1692b (2018).

If the debt collector discloses the existence of the debt or threatens the consumer, or uses the third party to otherwise harass the consumer, the consumer probably has grounds to sue the debt collector.

The third parties who receive calls from the debt collector may have grounds to sue the debt collector based upon the frequency of the call or the call patterns. But, the few cases identified where the plaintiff sued a debt collector who argued that they were seeking location information indicate that third parties who know the consumer should exercise caution before suing the debt collector for call frequency especially where the plaintiff can not point to additional evidence indicating that the debt collector intended to annoy, abuse or harass the person they called.

If the non-debtors who receive the debt collector’s calls have no knowledge of the consumer’s residential address or place of employment, then debt collectors continue to call at their own risk.

Sometimes, debt collectors abuse the third parties that they call to obtain the consumer’s location information.  In Corson v. Accounts Receivable Management, Inc., the court denied defendant’s motion for judgment on the pleadings where the debt collector continued to call after an elderly third party instructed the debt collector to stop calling and the debt collector threatened to continue to call until he provided his niece’s telephone number. Corson v. Accounts Receivable Management, Inc. (D. N.J. 2013). The Corson case implies that debt collectors must stop calling after the called party informs them that they have no intention of providing the consumer’s location information.

CAN A DEBT COLLECTOR CALL ME ABOUT A DECEASED RELATIVE’S DEBT?

Many debt collectors have departments or specialize in the collection of debts allegedly owed by deceased consumers. These vulture collectors often employ aggressive tactics when they call the deceased consumer’s relatives.

In Roth v. NCC Recovery, Inc., the debt collector called the deceased consumer’s daughter 50 times during an 8 month period while attempting to collect her father’s final medical expenses. The plaintiff daughter told the debt collector that the nursing home that cared for her late father had assured her that they would pay her father’s final expenses. Roth v. NCC Recovery, Inc. (N.D. OH 2012).

Although NCC Recovery argued that the frequency of the calls arose because the debt collector was attempting to reach a consumer who was difficult to reach, the court rejected this argument.

Defendant argues that the volume and frequency of calls in this case merit summary judgment in its favor. It points to the fact that only 50 calls were made over an eight- month period, a lower volume than many cases in which courts granted summary judgment to the debt collector. Further, NCC claims that it only called twice in the same day on only two occasions.

Yet, the Court determines that the number of calls is not entirely dispositive in this case. Instead, the nature, extent, and context of the calls bear review. Ms. Roth’s Affidavit indicates that NCC continued to call her on a regular and frequent basis, despite being advised that the nursing home advised her that her father’s final expenses would be covered. There is, further, an indication from both parties that Ms. Roth spoke with NCC representatives on several occasions and that NCC representatives left messages on her phone. As such, the Court does not find a significant disparity between the number of calls placed and answered, a factor that courts, such as the Saltzman court have used to excuse high call volumes on the theory that it indicates a difficulty in reaching the consumer. Given the evidence before the Court, a reasonable jury could find the requisite intent to harass or annoy. Thus, a genuine dispute of material fact remains and summary judgment is denied in this action.”)

Roth v. NCC Recovery, Inc. (N.D. OH 2012).

If the debt collector calls the deceased relative’s cell phone without the relative’s prior express consent, the relative may have grounds to the sue the debt collector for violating the TCPA and may recover $ 500 per call and, if the violation was willful, up to $ 1,500 per call.  The TCPA also applies to original creditors and business debts and is not limited to calls by debt collectors calling about consumer debts.

CAN A DEBT COLLECTOR CALL ME ABOUT MY HUSBAND’S OR WIFE’S DEBT ?

Can a debt collector call me about my husband or wife’s debt? A non-debtor spouse may sue a debt collector for violating the FDCPA by calling the non-debtor spouse too frequently while attempting to collect a consumer debt from the other spouse.

In Swearingen v. Portfolio Recovery Associates LLC, the debt collector called the couple’s home telephone number and even the non-debtor husband’s cell phone a total of 22 times during a 75 day period. The non-debtor husband instructed the debt collector to “stop calling” and informed the debt collector that the account was not his. The husband even lied to the debt collector by telling the debt collector that he had separated from his wife in a desperate attempt to stop the calls.  Swearingen v. Portfolio Recovery Associates LLC, 892 F.Supp.2d 987 (N.D. Ill. 2012).

The debt collector’s recordings confirmed the husband’s testimony that he asked the debt collector to provide their mailing address so he could mail them a cease communication letter and the caller just remained silent (a passive refusal). Furthermore, the recording included an “extremely loud buzzing sound” in at least some of the calls corroborating the husband’s testimony. The court noted :

[Defendant] has not provided any reason for using a buzzing device in its calls other than to harass the recipient of the phone call (again, at the summary judgment stage, the evidence is viewed in Plaintiffs’ favor, meaning that we assume that [Defendant] indeed employs such a device during its calls).

Although the court found the plaintiffs might not have the most persuasive case, the evidence created a question of fact whether the debt collector violated the FDCPA by calling frequently with the intent to annoy, harass or abuse the plaintiffs.

If the debt collector calls the non-debtor spouse’s cell phone without the  non-debtor spouse’s prior express consent, the spouse who receives the calls on their cell phone may have grounds to the sue the debt collector (or creditor) for violating the TCPA and may recover $ 500 per call and, if the violation was willful, up to $ 1,500 per call.

 

CHAPTER 4 : HOW THE TELEPHONE CONSUMER PROTECTION ACT (“TCPA”) PROTECTS CELL PHONE USERS FROM DEBT COLLECTION ROBO-CALLS 

4 . 0 CHAPTER 4 : HOW THE TELEPHONE CONSUMER PROTECTION ACT (“TCPA”) PROTECTS CELL PHONE USERS FROM DEBT COLLECTION ROBO CALLS
4 . 1 Can I Sue A Creditor Or A Debt Collector For Calling My Cell Phone About Someone Else’s Debt?
4 . 2 The TCPA Often Provides Cell Phone Users Who Receive Robo-Calls From Debt Collectors Damages Greater Than Those Available Under The FDCPA
4 . 3 How Does The TCPA Compare With The FDCPA?

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CHAPTER 4 : HOW THE TELEPHONE CONSUMER PROTECTION ACT (“TCPA”) PROTECTS CELL PHONE USERS FROM DEBT COLLECTION ROBO-CALLS

CAN I SUE A CREDITOR OR A DEBT COLLECTOR FOR CALLING MY CELL PHONE ABOUT SOMEONE ELSE’S DEBT?

Although the FDCPA and most state collection practices acts apply only to “debt collectors” who attempt to collect “consumer” debts, the TCPA is not subject to such limitations.   The TCPA applies to “any person” — a term broad enough to include original creditors as well as debt collectors — and applies to the calls regardless of the purpose the debt was incurred for (excluding loans owed to or guaranteed by the federal government unless the cell phone user has revoked their express consent.)

The Telephone Consumer Protection Act of 1991 (“TCPA”) provides that it is a violation for any person :

“(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice —

(iii) to any telephone number assigned to a paging service, cellular                    telephone service, specialized mobile radio service, or other radio                      common carrier service, or any service for which the called party is                    charged for the call, unless such call is made solely to collect a debt owed          to or guaranteed by the United States.”

47 U.S.C. § 227(b)(1)(A)(iii) (2018).   Callers who violate this section of the TCPA are liable to the cell phone user in the amount of $ 500 per call and the court may award an amount up to an additional $ 1,000 per call if the court finds the caller willfully violated the TCPA.

THE TELEPHONE CONSUMER PROTECTION ACT (“TCPA”) OFTEN PROVIDES CELL PHONE USERS WHO RECEIVE ROBO-CALLS FROM DEBT COLLECTORS DAMAGES WHICH ARE GREATER THAN THOSE AVAILABLE UNDER THE FAIR DEBT COLLECTION PRACTICES ACT (“FDCPA”)

FDCPA “call frequency” cases often leave people who receive robo-calls from debt collectors — even a very large number – without any relief because of the arcane requirements described in this article.   Sometimes, the courts rule that the calls were not frequent enough to evidence an intent to annoy, harass or abuse the person that received the calls so the FDCPA call frequency case fails.  Often, the collection calls are not from a “debt collector” but, instead, the caller is an original creditor whose conduct is not governed by the Fair Debt Collection Practices Act because of the caller’s “creditor” status.

Even if the consumer or even a person who does not even know the consumer prevails in their FDCPA case, the maximum amount of statutory damages that they can receive is capped at $ 1,000.00 per case.

The Telephone Consumer Protection Act of 1991 (“TCPA”) provides cell phone users and subscribers much more powerful relief.   If a debt collector or even a

If a debt collector won’t comply with a cell phone user’s request to “Stop Calling”, suing the debt collector under the TCPA is usually the most effective way to make the debt collector stop calling and be compensated for the invasion of privacy and inconvenience.

creditor robo-calls a cell phone user without the user’s prior express consent, the caller may be liable to the cell phone user in an amount of at least $ 500 per call and, if the violation is willful, the court may award up to $ 1,500 per call.

 

HOW DOES THE TCPA COMPARE WITH THE FDCPA?

Below is a chart briefly comparing several of the most important features of FDCPA “call frequency” cases with similar TCPA cases.

FAIR DEBT COLLECTION PRACTICES ACT (“FDCPA”) TELEPHONE CONSUMER PROTECTION ACT (“TCPA”)
WHO IS PROTECTED Any Person Cell Phone Subscriber or Regular User
STATUTORY DAMAGES Up to $ 1,000 per case $ 500 to $ 1,500 per call
WHO ARE THE BAD GUYS? Debt Collectors Only Debt Collectors & Creditors
TYPE OF PHONE Any Type Cell Phones Only
HOW TO STOP CALLS Consumers Can Send Written Notice To The Debt Collector Instructing The Debt Collector To Cease All Communication Cell Phone User Can Orally Revoke Consent to Receiving Robo-Calls by Telling the Caller “Stop Calling”
TYPE OF DEBT Consumer Only Consumer or Business
UNITED STATES CODE PROVISION 15 U.S.C.  § 1692d(5)

“A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the application of the foregoing, the following conduct is a violation of this section :

(5) Causing a telephone to ring or engaging any person in telephonoe conversation repeatedly or continuously with the intent to annoy, abuse, or harass any person at the called number.”

47 US.C. §227(b)(1)(a)(iii)

“(1) It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States –

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice –

(iiii) to any telephone number assigned to a paging service, cellular telephone service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States.”

 

To be blunt, the courts sometimes grant debt collectors’ motions for summary judgment in FDCPA “call frequency” cases even where the calls exceeded 100 calls on the grounds that the number of calls did not present a question for the jury to decide whether the debt collector made the calls with an intent to abuse, annoy or harass the person they called.   (One hundred calls seems like an awful lot of calls to me.)  More importantly,  the maximum amount of statutory damages in an FDCPA case is $ 1,000 per case even if the consumer succeeds.

In comparison, a person who receives 100 calls to their cell phone where the caller used an Automated Telephone Dialing System (“ATDS”) and/or a prerecorded or artificial voice without their consent may be entitled to statutory damages of $ 500 per call and up to an additional $ 1,000 per call if the caller willfully violated the TCPA.   A 100 call TCPA case can be worth at least              $ 50,000 and possibly substantially more depending upon the facts of the case.  Some cell phone users receive hundreds of robo-calls from debt collectors or creditors and the stakes go up accordingly.

Persons who never even applied for the account very rarely provide the creditor consent to being called.  If you are a Wrong Person and are receiving robo-calls concerning someone you do not even know, you may have valuable claims against the caller and be entitled to substantial statutory damages.  If you are a consumer who allegedly owes the debt, you may — or may not — need to revoke consent by telling the creditor or debt collector “STOP CALLING” in order to revoke any prior express consent that you may have given to being robo-called.  Feel free to contact Mr. Petersen for important information and a free case evaluation.

Click the Big Blue Button (immediately below) for information about your rights if you are receiving robo-calls on your cell phone asking to speak with someone other than you especially if you suspect it is a debt collector or creditor attempting to collect a debt.

IS ANYONE CALLING YOU ABOUT SOMEONE YOU DO NOT EVEN KNOW?

IS ANYONE CALLING YOU ABOUT SOMEONE YOU DO NOT EVEN KNOW?

People who allegedly owe the debt are also protected by the TCPA and may be entitled to the superior statutory damages amounts described above.

Click the Big Blue Button (immediately below) for information about your rights if you are receiving robo-calls to your cell phone about a debt that you allegedly owe.

IS ANYONE CALLING YOU ABOUT YOUR (OR YOUR SPOUSE'S) DEBT?

Wrong Persons and consumers who are receiving calls from debt collectors or creditors who are calling about someone else’s debt should consult with an experienced TCPA lawyer immediately.   If you are on a “smart phone”, press the blue phone icon at the bottom of your screen to call Mr. Petersen.  Or, you can press the Big Blue Button to contact Mr. Petersen for a free TCPA and/or FDCPA case evaluation.

FREE CASE EVALUATION

 

CHAPTER 5 : CALLS TO CONSUMERS WHO ALLEGEDLY OWE THE DEBT 

 

5 . 0 CHAPTER 5 : DEBT COLLECTORS’ CALLS TO CONSUMERS WHO ALLEGEDLY OWE THE DEBT MAY VIOLATE THE FDCPA
5 . 1 Whether The Consumer Answered Any Of The Debt Collector’s Calls Is Probably The Most Important Fact In FDCPA Call Frequency Cases
5 . 2 Call “Patterns” Are Often More Important Than The Total Number Of Calls
5 . 2 . 1 Can I Sue A Debt Collector For Calling Me Back Immediately After I Hung Up On Them?
5 . 2 . 2 How Many Times Can A Debt Collector Call In One Day?
5 . 2 . 3 Many Courts Consider The Number Of,  Frequency Of, And Intervals Between, Any Messages That Debt Collectors Left
5 . 3 Most Courts Consider — But Do Not Require — “Other Factors”
5 . 4 What Are The  “Other Factors” That Courts Often Consider When Evaluating Whether The Debt Collector Intended To Harass, Annoy, Or Abuse The Consumer
5 . 5 How Does The Presence Or Absence Of “Other Factors” Affect A Consumer’s Chances Of Successfully Suing A Debt Collector For Harassing By Calling Too Often?
5 . 6 Invalid Debts Are Often As Persuasive Evidence Of The Debt Collector’s Intent To Harass As Calling A “Wrong Person”
5 . 7 Orally Disputing Owing The Debt — Without A Factual Basis — Is Usually Ineffective In Proving That The Debt Collector Intended To Harass The Consumer By Calling Frequently
5 . 8 Consumers Who Receive Collection Calls At Work May Have Independent Grounds To Sue For FDCPA Violations In Addition To Providing Evidence To Supplement The Call HistoryIn FDCPA Call Frequency Cases
5 . 8 . 1  Can I Sue A Debt Collector For Calling Me At Work?
5 . 8 . 2 Courts Often Consider Whether The Debt Collector Called The Consumer’s Place of Employment When Evaluating The Debt Collector’s Intent In FDCPA Call Frequency Cases
5 . 9 Consumers Can Often Sue Debt Collectors Who Discuss Their Debt With Third Parties For Violating The FDCPA In Addition To Providing Additional Evidence That The Debt Collector Intended To Harass The Consumer By Calling Too Frequently
5 . 9 . 1  Debt Collectors Who Tell Someone Else About A Consumer’s Debt Often Violate The FDCPA
5 . 9 . 2 Can I Sue A Creditor For Discussing My Debt With Someone Other Than My Immediate Family?
5 . 10  Debt Collectors’ False Threats To Sue Consumers May Provide Consumers Independent Grounds To Sue The Debt Collector In Addition To Providing Evidence To Supplement The Call Pattern in A FDCPA Call Frequency Case
5 . 10 . 1 Debt Collectors’ False Threats To Sue Often Violate The FDCPA
5 . 10 . 2 Courts Often Consider False Threats To Sue When Evaluating FDCPA Call Frequency Cases
5 . 11 Debt Collectors Who Falsely Accuse A Consumer Of Committing A Crime Violate The FDPCA And These False Allegations Also Provide Evidence To Supplement The Call History In FDCPA Call Frequency Cases
5 . 11 . 1 Debt Collectors’ False Allegations That The Consumer Committed A Crime Often Violate The FDCPA
5 . 12 Courts Often Consider Whether The Debt Collector Falsely Accused The Consumer Of Committing A Crime When Determining Whether The Debt Collector Intended To Harass, Annoy, Or Abuse The Consumer
5 . 13 Debt Collectors Who Call Consumers Between 9:00 P.M. and 8:00 A.M. Often Violate The FDCPA And Consumers Who Receive Calls At An Impermissible Time Often Have Independent Grounds To Sue The Debt Collector In Addition To Providing Evidence That The Debt Collector Intended To Harass, Annoy, Or Abuse The Consumer By Calling Too Often
5 . 13 . 1 When Can A Debt Collector Call ?
5 . 13 . 2 Courts Often Consider Whether The Debt Collector Called At An Impermissible Time When Determining Whether The Call Frequency May Evidence That The Debt Collector Intended To Harass, Annoy, Or Abuse The Consumer By Calling Too Frequently
5 . 13 . 3 When Can A Creditor Call ?
5 . 14 Debt Collectors Violate The FDCPA By Calling Consumers After They Receive A Letter From The Consumer Requesting That The Debt Collector Cease Communication (Or Refusing To Pay) Or Notice That The Consumer Is Represented By An Attorney Regardless Of The Number Of Telephone Calls And These Violations Also Provide Evidence That The Debt Collector Intended To Harass, Annoy, Or Abuse The Consumer By Calling Too Often
5 . 14 . 1 Can A Debt Collector Call Me If I Am Represented By A Lawyer ?
5 . 14 . 2 Can A Creditor Call Me About A Consumer Debt If I Am Represented By An Attorney?
5 . 14 . 3 Can A Debt Collector Call Me After The Debt Collector Received My Cease Communication Letter ?
5 . 15 Does Telling A Debt Collector To “Stop Calling” Influence The Outcome Of An FDCPA Call Frequency Case ?
5 . 15 . 1 Can A Debt Collector Call My Home Phone After I Tell Them To “Stop Calling”?
5 . 15 . 2  Consumers Who Are Unable To Pay
5 . 16  Should I Tell A Debt Collector To “Stop Calling” My Cell Phone?

 

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CHAPTER 5 : DEBT COLLECTORS’ CALLS TO CONSUMERS WHO ALLEGEDLY OWE THE DEBT MAY VIOLATE THE FDCPA

The answer to the question — how many times can a debt collector call a consumer — depend on many factors besides the total number of calls and the duration of the call “campaign”.  The sixth chart (labelled  Chart Number 3 because it repeats Chart Number 3) (immediately below) shows the varying outcomes in call frequency cases.

CHART # 3 Shows The Outcome of Call Frequency Cases (Filed By Consumers) At The Motion To Dismiss And Debt Collectors’ Motions For Summary Judgment

In Chart Number 3, there are many Green Diamonds towards the origin (lower left corner of the chart) which appear closer to the point of origin (0 Calls / 0 Days) than many of the Red Diamonds.   The Green Diamonds represent cases where the consumer’s call frequency case survived the debt collector’s motion for summary judgment. The Red Diamonds represent cases where the court granted the debt collector’s motion for summary judgment.

Chart Number 6 (immediately below) shows the results of debt collectors’ motions for summary judgments against consumers’ call frequency cases.

Graph Showing Outcome Of Consumers' FDCPA Call Frequency Claims Upon Debt Collectors' Motions For Summary Judgment

Chart Number 6 Shows The Outcome Of Consumers’ Call Frequency Cases At Defendants’ Motions For Summary Judgment

As in Chart Number 3,  there are many Green Diamonds towards the origin (lower left corner of the chart) which appear closer to the point of origin (0 Calls / 0 Days) than many of the Red Diamonds.   The Green Diamonds represent cases where the consumer’s call frequency case survived the debt collector’s motion for summary judgment. The Red Diamonds represent cases where the court granted the debt collector’s motion for summary judgment.

Why does this discrepancy occur?   Some of the variations in the outcomes appears to arise because of the attitude of the court towards call frequency cases.  But, much of what initially appears to be the “unpredictability” of the outcome of call frequency cases can be explained by the facts of the case other than the total number of calls and the time period during which the calls occurred.

WHETHER THE CONSUMER ANSWERED ANY OF THE DEBT COLLECTOR’S CALLS IS PROBABLY THE MOST IMPORTANT FACT IN FDCPA CALL FREQUENCY CASES

The eighth chart (labelled Chart No. 4) compares the outcome of the debt collectors’ motions for summary judgment in cases where : (1) the Consumer  who received the call(s) answered or returned at least one call (shown in Green) with cases where (2) the Consumer never answered the debt collector’s calls and did not call the debt collector back (shown in Red).  (The seventh chart  (below) is a repeat of Chart No. 4 (above).)

CHART # 4 shows the results of call frequency cases and compares whether the consumer answered at least one call.

 

As the chart above shows, whether the consumer ever answered at least one call is an important variable in predicting the outcome of the consumer’s case. The reason why the courts favor cases where the consumer answered a call are different from the Wrong Person cases though.

Debt collectors who call the consumer who allegedly owes the debt often argue that they are “merely” attempting to contact the consumer debtor to discuss resolution (i.e,, payment) of the debt.

Such conversations are often very stressful for the consumer even if the debt collector politely explains the consequences of failing to acquiesce to the debt collector’s payment demands.

Debt collectors use the miracle (or curse) of robo-dialers to subject consumers to repeated calls over a brief or sustained time period.

Debt collectors employ robo-dialers to call consumers until they submit to paying in order to avoid the relentless, frequent calls.  Debt collectors often “surge” the calls on chosen days which is usually more annoying than examining only the “average” number of calls per day would indicate.

Debt collectors often argue that “we called so often because we couldn’t reach the consumer enough”.    The court is more likely to agree with the debt collector in cases where the consumer never answered the debt collector’s call or answered it only once.   The results in cases where the debt collector calls during an extended period of time and makes contact with the consumer only a few times are a mixed bag.

Many courts wisely reject the debt collector’s argument where the evidence shows that the debt collector communicated with the consumer several times.

In  Roth v. NCC Recovery, Inc. the district court denied the debt collector’s motion for summary judgment where the evidence showed that the debt collector called the consumer 50 times during an 8 month period.   This is not a unusually high number of calls.  The court also examined the other evidence and noted that the consumer spoke  with the debt collector “several” times and told the debt collector that the nursing home agreed to pay her father’s final expenses.  Roth v. NCC Recovery, Inc. (N.D. OH 2012).

The court rejected the debt collector’s argument that it was merely trying to communicate with the consumer :

Defendant argues that the volume and frequency of calls in this case merit summary judgment in its favor. It points to the fact that only 50 calls were made over an eight- month period, a lower volume than many cases in which courts granted summary judgment to the debt collector. Further, NCC claims that it only called twice in the same day on only two occasions.

Yet, the Court determines that the number of calls is not entirely dispositive in this case. Instead, the nature, extent, and context of the calls bear review. Ms. Roth’s Affidavit indicates that NCC continued to call her on a regular and frequent basis, despite being advised that the nursing home advised her that her father’s final expenses would be covered. There is, further, an indication from both parties that Ms. Roth spoke with NCC representatives on several occasions and that NCC representatives left messages on her phone. As such, the Court does not find a significant disparity between the number of calls placed and answered, a factor that courts, such as the Saltzman court have used to excuse high call volumes on the theory that it indicates a difficulty in reaching the consumer. Given the evidence before the Court, a reasonable jury could find the requisite intent to harass or annoy. Thus, a genuine dispute of material fact remains and summary judgment is denied in this action.”)

Roth v. NCC Recovery, Inc.  (N.D. OH 2012).

Similarly, in Hicks v. America’s Recovery Solutions, LLC, the district court denied the debt collector’s motion for summary judgment although the debt collector called 21 times during a 3 month period.  The court examined the record and noted that the consumer answered “almost all” of the calls.  Hicks v. America’s Recovery Solutions, LLC  816 F.Supp.2d 509 (N.D. Ohio 2011).

The court distinguished cases where the consumer does not answer the phone. The court reasoned :

“Defendant argues that the volume and frequency of calls in this case merit summary judgment in its favor. It points to the fact that only 21 calls were made over a three- month period, a lower volume than many cases in which courts granted summary judgment to the debt collector. Further, Defendant claims that it only called twice in the same day on one occasion.

The court concludes that the number of calls is not totally dispositive in this case. Rather, the nature, extent, and context of the calls are also important. Plaintiffs’ affidavits indicate that Defendant continued to call Plaintiffs on a daily basis, often twice a day, despite being advised that Plaintiffs were represented by a debt management company. In addition, there is no significant disparity between the number of calls placed and answered, a factor that courts such as the Saltzman court have used to excuse high call volumes on the theory that it indicates a difficulty in reaching the consumer. While Plaintiffs’ evidence is not particularly strong, a reasonable jury could find the requisite intent to harass or annoy. Thus, a genuine dispute of material fact remains and summary judgment is denied on this claim.”

Hicks v. America’s Recovery Solutions, LLC  816 F.Supp.2d 509 (N.D. Ohio 2011).  Hicks is the only decision that I found where a court even mentioned that the consumer was in a debt management plan and do not place much weight in this factor.  Of more significance, is that the consumer answered “almost every” call from the debt collector.  Why would a debt collector continue to call this consumer?  In my opinion, twenty-one telephone conversations during a 3 month period is excessive.

 Before examining the effect that the presence or absence of the Other Factors may have on cases, it’s useful to examine the call pattern cases.  “Call Pattern” usually refers to the frequency of calls during a day or even a smaller unit of time such as an hour.

CALL “PATTERNS” ARE OFTEN MORE IMPORTANT THAN THE TOTAL NUMBER OF CALLS

The courts distinguish between “call frequency” cases (i.e., the cases that allege that the total number of calls over some period of days, weeks, months, or even years evidence harassment) and cases which are often described as “call pattern” cases. Call pattern cases dig beneath the total number of calls over some comparatively long time period by examining the number of times the debt collector called the consumer in one day and, in extreme cases, whether the debt collector continued to call the consumer on the same day if the consumer hung up the telephone on the debt collector.

CAN I SUE A DEBT COLLECTOR FOR CALLING ME BACK IMMEDIATELY AFTER I HUNG UP ON THEM ?

Perhaps the most obvious example of cases where the debt collector intended to harass, annoy, or abuse someone by causing a telephone to ring repeatedly occurs when a debt collector calls back on the same day following a conversation where the consumer terminated the conversation by hanging up on the debt collector.

Chart Number 7 shows the outcome in ten cases where the consumer presented evidence that the debt collector called back on the same day following a conversation which the consumer terminated by hanging up on the debt collector.   Except for one unusual case where the consumer hung up without speaking with the debt collector and the debt collector called back,  consumers won all of these cases.

The earliest reported case alleging that a debt collector violated the FDCPA by calling a consumer back immediately after the consumer hung up on the consumer is Bingham v. Collection Bureau, Inc.  Following a bench trial, the court published an order finding that the defendant violated the FDCPA’s general harassment prohibitions — 15 U.S.C. § 1692d — where the evidence showed that defendant called the consumer back immediately after the consumer hung up the telephone.

Although the Bingham court also ruled that the fact that defendant debt collector called 14 times during 23 days was not sufficient to prove a case based upon call frequency under 15 U.S.C. § 1692d(5), the court ruled that the debt collector intended to harass, annoy or abuse the consumer by calling back on the same day after the consumer terminated their conversation by hanging up on the debt collector.  Bingham v. Collection Bureau, Inc., 505 F.Supp. 864 (D. N.D. 1981).  The court awarded the consumer wife $ 1,000 in actual damages and $ 400 in statutory damages. The plaintiff husband received $ 100 for loss of consortium.

Since Bingham, consumers have prevailed in default judgment cases and survived defendant debt collectors’ motions for summary judgment where the court ruled that the total number of calls was not excessive ‘given the time period.

In Chiverton v. Federal Financial Group, Inc., the court granted plaintiff a default judgment against a defendant where the evidence showed that the debt collector called the consumer back a third time after two nasty conversations which caused the consumer to hang up on the debt collector. Chiverton v. Federal Financial Group, Inc., 399 F.Supp.2d 96 (D. Conn. 2005). The court awarded the consumer the maximum amount of statutory damages ($ 1,000),  $ 5,000 for actual damages, and $ 7,500 in punitive damages. Although the FDCPA does not provide for punitive damages, the consumer also brought suit under the Connecticut Unfair Trade Practices Act which allowed the consumer to recover punitive damages which are not available under the FDCPA.

Consumers may prevail in Hang-Up / Call-Back cases even where the court rules that the number of total calls during longer periods do not evidence harassment as a matter of law.

In Moltz v. Firstsource Advantage, LLC, the evidence showed that the debt collector called the consumer 30 times during a 6 month period including 20 calls after the consumer told the debt collector to “stop calling”.  The court granted debt collector’s motion for summary judgment on the afore described consumer’s call frequency claims.  But, the court denied debt collector’s motion for summary judgment on consumer’s claim arising from one call that the debt collector made immediately after the consumer hung up on the debt collector. Moltz v. Firstsource Advantage, LLC, 2011 WL 3360010 (W.D. N.Y. 2011).

A comprehensive survey of available call frequency and pattern cases failed to produce even one case where a debt collector prevailed on defendant’s motion for summary judgment where the plaintiff produced call records evidencing that the debt collector continued to call the consumer after the consumer terminated their conversation by hanging up on the debt collector earlier on that same day.

In Nyce v. Sterling Credit Corporation, the court denied defendant debt collector’s motion for summary judgment where the debt collector called the plaintiff 22 times during a 70 day period. Ordinarily, many courts would have granted defendant’s motion. But, in this case, the debt collector called the consumer back immediately after he hung up. Nyce v. Sterling Credit Corp. (E.D. PA 2013).

In May v. Asset Acceptance, L.L.C., defendant Asset Acceptance called the consumer back “within minutes” after the consumer told Asset Acceptance to stop calling before hanging up on the debt collector. The court denied Asset Acceptance’s motion for summary judgment based upon the call following the consumer’s hanging up and briefly described the call frequency by noting that Asset Acceptance called “numerous” times without noting the relevant time period. May v. Asset Acceptance, L.L.C., 2013 WL 1337173 (W.D. Tex 2013).

A California consumer told a debt collector to stop calling twice and hung up on the debt collector once — the debt collector called back at least once on each of those three days. The debt collector argued that it could continue to call because it was attempting to collect 17 different medical accounts from the consumer. The district court rejected the defendant’s argument stating “ No evidence was presented that separate calls were made for each debt, nor if such separate calls were made was any explanation given for why the calls could not have been consolidated. The Court doubts that the average consumer, much less a vulnerable consumer, would perceive, for instance, that four calls close in time from the same party in collection of four $500 debts is less annoying than four calls in collection of a consolidated $2000 debt.” Joseph v. JJ MacIntyre Co’s., 238 F.Supp.2d 1158 (N.D. Cal. 2002).

In the fourth “hang up / call back” case, the debt collector called the consumer 133 times during a 154 day period — a frequency which the court described as “high volume”. The debt collector blew any chance of escaping a trial by calling the consumer on two occasions immediately after the consumer hung up on the debt collector and by leaving multiple messages in one day. Nor did it probably did not help the debt collector that the debt collector inquired about the consumer’s income and she replied that she was surviving off of unemployment and that she expected her utilities to be disconnected in two days. The debt collector demonstrated what could charitably be called its lack of empathy by informing Ms. Turner that they would continue to call her in order to collect the debts. The court included a transcript of the call in the court’s order denying defendant’s motion for summary judgment :

  CALLER: Harry Cavanero’s calling. Is this Bessie Turner? I’m calling from          Professional Recovery Services.

MS. TURNER: I told the gentleman the other day that I’m not working.

CALLER: Well, we still have to call Ma’am until payment is made on the account.

MS. TURNER: Okay, well I’m not working.

CALLER: But that’s not my fault Ma’am. You must have some type of an income or how are you living?

MS. TURNER: I’m not barely—

CALLER: Hello?

MS. TURNER: I’m not. I’m really not. I’m just waiting for whatever utility there is to be cut off in the next day or two.

CALLER: Well, you have a good day Ma’am. We will be calling again.

Turner v. Professional Recovery Services, Inc., 956 F.Supp.2d 573 (D. N.J. 2013). I wonder why the hospital did not do the right thing and write this account off as charity care rather than turn it over to a debt collector.

Given the consumers’ track successful track record in the pick-up / hang-up cases, it’s not surprising that there is only one readily accessible case where a debt collector moved to dismiss a pick-up / hang-up case and that the court denied the defendant’s motion to dismiss.

In Kuhn v. Account Control Technology, Inc., the plaintiff alleged that the debt called the consumer’s place of employment 6 times in a 24 minute period. After the consumer hung up on the debt collector, the debt collector called back twice during a 5 minute period. The district court had no difficulty denying the defendant’s motion to dismiss where defendant argued that “it was only 6 calls judge” (or words to that effect). Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443, 1453 (D. Nev. 1994).

The courts distinguish cases where the consumer spoke with the debt collector before the consumer hung-up the phone from cases where the consumer picked up and then immediately hung up the telephone without speaking with the consumer.

Although consumers and most people probably believe the consumer has sent a clear message to the debt collector — don’t call me — (or expletives to that effect), the courts have not provided consumers who pick-up/hang-up the same protection afforded to consumers who answered at least one call and spoke with the debt collector.

The case law addressing the cases where the consumer picked up the phone but hung it up without ever speaking with the caller — the pick-up/hang-up scenario —  consists of only two cases. The courts granted the debt collector’s motion for summary judgment in both of these cases. Reed v. Receivable Recovery Services, LLC (E.D. LA 2017) (granting debt collector’s motion for summary judgment where debt collector called the consumer 14 times during a 50 day period and the consumer hung-up on the debt collector 6 times and never spoke with the debt collector) aff’d (5th Cir.  2017).

The other pick-up/hang-up cases arose where the debt collector never spoke with the consumer and involved what could have been a close question about call frequency if the consumer had answered at least one of the calls. Chisholm v. AFNI, Inc. (D. N.J. 2016) (granting debt collector’s motion for summary judgment where the debt collector called 18 times during a 13 day period where the consumer answered one call but immediately hung up without speaking with the debt collector.)

Perhaps there are cases where the consumer spoke with the debt collector and the debt collector continued to call the consumer until the consumer grew so annoyed by the collection calls that the consumer picked-up/hung-up their phone but defendants in such cases would probably not want to prolong the case to the summary judgment stage given the uncertainty of its outcome.

Obviously, consumers should speak to a debt collector at least once and tell the debt collector to “stop calling” before considering whether to employ the pick-up / hang-up technique to attempt to rid themselves (or document) the debt collector’s calls.

HOW MANY TIMES CAN A DEBT COLLECTOR CALL IN ONE DAY ?

One of the most helpful facts is often the number of times that a debt collector called during one day.

In Chart Number 8 (immediately below), the X axis (the horizontal axis) represents the number of cases and the Y axis (the vertical axis) represents the peak number of calls per day. The cases where the consumer won are shown in green; the cases where the consumer lost are shown in red.

In my opinion, the spikes in daily call volume occur because debt collectors intend to annoy the consumer (and the consumer’s household) until the consumer answer their calls.  Courts examine not only the peak number of calls in one day but also the number of days that the debt collector surged the calls to the peak volumes which are at issue in the case. Did the debt collector call four times in a day on one occasion? Did the debt collector call twice a day on twenty different days?  Even worse, did the debt collector call twice a day for twenty consecutive days?

Although there is no bright line limit on the number of times that a debt collector can call a consumer in one day, debt collectors who call a consumer more than 4 times a day will probably loose on their motion for summary judgment and should expect the consumer’s case to go to trial.  (The consumer, of course, would still be required to prevail at trial in order to be entitled to receive statutory and/or actual damages, reasonable attorney’s fees, and costs.)

FDCPA cases alleging that the debt collector called too frequently and called say 3 – 4 times a day produce mixed results.  In the 3 – 4 calls per day range, evidence of Other Factors is often useful to over come the debt collector’s reasons (or excuses) for calling so often.

It’s helpful to compare the cases where consumers who alleged that the debt collector called them 2 – 4 times per day and successfully opposed debt collectors’ motions for summary judgment with similar daily call spikes where the consumer lost.  The opinions in these cases  illustrate how important the Other Factors  —  especially when the daily call volume spike (2 – 4 calls per day) —  may be viewed in different ways.

The case survey produced at least three opinions on summary judgment where the the consumer argued that the debt collector violated the FDCPA by calling twice a day.   Calling twice a day is generally in the debt collector’s “safe zone”.

In Abdullah v. Ocwen, the court denied the debt collector’s motion for summary judgment where the consumer alleged that the debt collector called her up to twice a day.   Ordinarily, calling twice a day is unlikely to be a successful claim.  But, in this case, the consumer filed an affidavit stating that she told the debt collector to stop calling and mailed the debt collector a letter requesting that they cease communication.  The consumer also proved that the debt collector called her 63 times during a 261 day period.  Abdullah v. Ocwen Loan Servicing, Inc.  (M.D. Ga.  2014).

In Hicks v.  America’s Recovery Solutions, LLC, the court denied the debt collector’s motion for summary judgment where the consumer alleged that the debt collector called him up to twice a day and called her 21 times during a three month period.  Although the debt collector called the consumer a relatively moderate number of times — judging only by the “stats” — the court appeared to have no trouble denying the debt collector’s motion for summary judgment because the consumer answered “almost all” of the debt collector’s calls.  This evidence negated the debt collector’s common excuse for calling — the so called “difficult to reach” consumer.   Hicks v. America’s Recovery Solutions, LLC (N.D. Ohio 2013).  Although a debt collector is not required to deal with a debt management plan, it did not hurt the consumer’s case that she routinely provided that information so the debt collector could discuss the prospects of payment with her debt management plan provider.

In Chavious v. CBE Group, Inc., the court granted the bill collector’s motion for summary judgment where the evidence showed that the bill collector called twice in one day and placed only 11 calls in 58 days.   This call frequency seems rather modest and probably influenced the court’s view of the additional evidence that the consumer offered.   The consumer returned one of the debt collector’s calls.  The debt collector placed him on hold for several minutes before abruptly disconnecting the call.  Chavious v. CBE Group, Inc. (E.D. N.Y.  2012).

In Hinderliter v. Diversified Consultants, Inc., the court granted the court granted the debt collector’s motion for summary judgment where the debt collector called 36 times during a 59 day period and called up to twice a day.  Although the consumers tried to negotiate a payment schedule, the debt collector refused to agree to delaying the first payment for approximately one month so the consumer hung up on the debt collector and, thereafter, did not answer the debt collector’s calls.  Hinderliter v. Diversified Consultants, Inc. (N.D. N.Y. 2012).

In Valle v. National Recovery Agency, the United States District Court for the Middle District of Florida granted the bill collector’s motion for summary judgment where the debt collector called no more than twice a day and the bill collector did not call the consumer at work unless the debt collector had already attempted to call her at home.  The debt collector called 82 times during a 252 day period.  The most noteworthy fact about this case is that the consumer never answered or responded to any of the bill collector’s calls.  Valle v. National Recovery Agency (M.D.  Fla. 2012).

The case survey produced six opinions on summary judgment where the  consumer argued that the debt collector violated the FDCPA by calling three times during one day.   Although the results in these cases appear at first glance to favor consumers by a 2:1 margin, the cases are much closer than first appears.  The facts in these cases indicate that Other Factors are very helpful for consumers in these cases and that consumers who never answer at least one of the debt collector’s calls will probably not survive a debt collector’s motion for summary judgment.

In Young v. Asset Acceptance, LLC, the court denied the bill collector’s motion for summary judgment where the consumer alleged that the defendant called three times a day and called up to five days a week.  The consumer provided evidence that the debt collector called him a total of 33 times during a 73 day period.   The consumer filed an affidavit swearing that the debt collector threatened to garnish him and to interfere with his future employment prospects by reporting the 10 year old credit card account to the credit reporting agencies.   (A 10 year old debt is well past the 7 year obsolescence period which limits the age of accounts which the credit bureaus provide for most purposes.)  Young v. Asset Acceptance, LLC (N.D. Tex. 2011).

In Buchholz v. Valarity, LLC, the court denied the debt collector’s motion for summary judgment where the consumer proved that the debt collector called 210 times during a 370 day period after he asked the debt collector to stop calling him.  The consumer also proved that the debt collector called him up to three times during one day.  Buchholz v. Valarity, LLC (E.D. Mo.  2014).  The court denied the debt collector’s motion to reconsider the court’s finding that the consumer revoked his consent for the debt collector to robo-dial his cell phone setting the stage for the consumer to recover at least $ 500 per call for the calls that the debt collector made to the consumer after the consumer revoked his consent.  Bucholz v. Valarity, LLC (E.D. Mo. 2015).

In Contreras v. Portfolio Recovery Associates, LLC, the consumer’s proof that PRA called her up to three times a day was probably the least of PRA’s problems.  The consumer answered all three of PRA’s calls during the day in question.   The evidence showed that PRA called the consumer 383 times during a 28 month period despite the consumer’s verbal request that PRA stop calling.  PRA discussed the debt with the consumer’s 16 year old daughter and also threatened to garnish her husband’s wages although PRA had not even filed a lawsuit.  Contreras v. Portfolio Recovery Associates, LLC (N.D. Calif. 2017).

In Bennett v. Portfolio Recovery Associates, LLC,  the court denied the debt collector’s motion for summary judgment where the debt collector called the consumer three times in one day on eight different days and twice a day on twenty different days.  The debt collector called the consumer a total of 113 times during a six month period.  Bennett v. Portfolio Recovery Associates, LLC (C.D. Calif.  2013).

The case survey also produced two cases where the court granted a debt collector’s motion for summary judgment where the evidence showed that the debt collector called the consumer three times in one day.  In Jiminez v. Account Receivable Management, Inc., the court granted the bill collector’s motion for summary judgment although the bill collector called 69 times during a 115 day period.  Jiminez v. Account Receivable Management, Inc. (C.D. Calif. 2010).    In Salmas v. I.C. System, Inc., the court granted a bill collector’s motion for summary judgment although the debt collector called 89 times during a 180 day period.  Salmas v. I.C. System, Inc. (C.D. Calif. 2015).    Although the call frequencies in Jiminez and Salmas may appear quite high there is a common defect in both of the consumers’ cases — neither Jiminez or Salmas ever talked with the respective debt collectors.

The case survey produced five cases where a bill collector moved for summary judgment against a consumer where the evidence showed that the bill collector called up to four times in one day.

The consumers prevailed in three of the “4-Calls-In-One-Day” cases.  In Davis v. Diversified Consultants, Inc., the court denied the bill collector’s motion for summary judgment where  the bill collector called a Wrong Person 60 times during a three month period.  The plaintiff answered the bill collector’s calls at least five (5) times and repeatedly told the debt collector to stop calling.  Davis v. Diversified Consultants, Inc. (C.D. Cal. 2012).

In Dunning v. Portfolio Recovery Associates, LLC, court denied the debt collector’s (“PRA”) motion for summary judgment where the evidence showed that PRA called the consumer up to 4 times a day.  PRA’s calls to the consumer’s landline telephone totaled between 70 to 120 times during a period of approximately one year.  More importantly, the consumer told PRA to stop calling him 10 times.   Dunning v. Portfolio Recovery Associates, L.P.  (S.D. Fla. 2012).

In Prewitt v. Wolpoff & Abramson, LLP, the court denied the attorney debt collector’s motion for summary judgment where the debt collector admitted to calling the consumer up to 4 times a day and  at least 100 times during a 3 month period although the consumer told the debt collector that he was unable to pay the debt.   Rather than accept the consumer’s representation of inability to pay or sue the consumer to coerce payment, the so-called “law firm” doubled down by threatening to sue the consumer probably without a present intent to actually sue the consumer.  The court found that “[d]uring the September 14, 2004 conversation, Defendant told Plaintiff that Defendant would continue to call him “so it will stand up in court,” and advised him that its attorneys would review his file for “further action.”   The defendant debt collector admitted that such language would constitute a threat to sue the consumer.  Prewitt v. Wolpoff & Abramson, LLP (W.D. N.Y. 2007).

The debt collector prevailed in two of the “4-Calls-In-One-Day” cases.   In Higgs v. Diversified Consultants, Inc., the court granted the debt collector’s motion for summary judgment where the evidence showed that the debt collector called the consumer 36 times during a 17 day period and called up to four times a day.  The court ruled that the plaintiff’s statement that he “does not have the money right now” was not an explicit statement that the debt collector stop calling and noted that the debt collector correctly told him that the collection calls would continue.   Higgs v. Diversified Consultants, Inc. (W.D. Mo.  2014).   In Waite v. Financial Recovery Services, Inc. the court granted the bill collector’s motion for summary judgment where the bill collector called 4 times during one day on three different days and called 56 times during a 2 month period.   Waite v. Financial Recovery Services, Inc.  (M.D. Fla. 2010).

The FDCPA case survey produced twenty-four FDCPA opinions deciding defendant’s motions for summary judgment where the court noted that the debt collector called the consumer multiple times during a day and the court noted the number of times, at least twenty-two of these opinions also note whether  the consumer (or the consumer’s spouse or relative) verbally requested that the debt collector stop calling.  Consumers defeated debt collector’s motions for summary judgment in 9 of the 13 cases where the consumer told the debt collector to stop calling.   But, where the consumer did not tell the debt collector to stop calling, the consumer won in 4 cases and lost in 5 cases.

Even where the plaintiff in an FDCPA daily call volume case told the debt collector to stop calling, the call patterns (e.g., number of calls in one day) are much more predictive of the results of the outcome of the FDCPA case than whether the consumer asked the debt collector to stop calling.

The daily call volume cases demonstrate how important it is to consult with an attorney who practices law from an office located in your state rather than reply to an internet ad from an FDCPA mill located in a distant state.

MANY COURTS CONSIDER THE NUMBER OF, FREQUENCY OF, AND TIME INTERVALS BETWEEN, ANY MESSAGES THAT DEBT COLLECTORS LEFT 

Another factor is the number of times that the debt collector left messages. Debt collectors have different policies about whether to leave messages for consumers.  Historically, many debt collectors left messages after almost every unanswered call.

Where the evidence is presented, courts consider the frequency with which the debt collector left messages when evaluating the debt collector’s intent.  Akalwadi v. Risk Management Alternative, Inc., 336 F.Supp.2d 492 (D. Md.   2004) (denying the debt collector’s motion for summary judgment where the debt collector left messages on each unanswered call, called on a “daily basis” and made three telephone calls within a five hour period.)

MOST COURTS CONSIDER — BUT DO NOT REQUIRE — “OTHER FACTORS”

Most courts consider facts other than the call frequency, pattern, and duration of the calls when determining whether the facts present a question of fact for the jury to decide whether the debt collector called frequently with the intent to harass, annoy or abuse the person called.

Most courts consider the call frequency, pattern, and duration of the calls and may find sufficient evidence of harassment based solely on these factors. Some other courts require additional factors to be present before the court will draw the inference that the call frequency and pattern evidences that the debt collector intended to annoy, abuse, or harass the consumer.

In the majority of FDCPA cases alleging that the debt collector called too often, the frequency and pattern of the calls is a “close call” (pun intended) and the court examines whether there is also additional evidence of harassment (“Other Factors”) besides the frequency, pattern and duration of the calls.

Several courts require that the plaintiff prove Other Factors besides call frequency or call patterns in order to prevail on their claims based upon the frequency or pattern of calls. The courts comprising this minority are often hostile to other types of FDCPA violations and claims arising from TCPA violations.

This minority of courts interpret § 1692d(5) to require other evidence of harassment besides the causing a telephone to ring based upon the catch all provision in § 1692d providing that debt collectors shall “not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”   These courts disregard the second sentence in § 1692d which provides that debt collectors who engage in collection practices which violate specific subsections of  § 1692d — including violations of  § 1692d(5) (call frequency and pattern violations) — have violated the FDCPA : “[w]ithout limiting the general, the following conduct is a violation of this section”.  The courts which resist enforcing the FDCPA’s call frequency provisions as flexibly as many other courts set the bar high by requiring unusually egregious Other Facts to elevate a “mere” 100 (or even 200) calls to provide evidence that the debt collector intended to “harass, oppress, or abuse” the person called based upon the standard contained in the catch-all § 1692d provision.  But,  § 1692d(5) contains a different standard than § 1692d —  § 1692d(5) requires the plaintiff to prove that the debt collector intended to “annoy, abuse, or harass”.  Congress intended for any person to be able to sue for calls which “annoy” the person who receives them rather than “oppress”.  Section 1692d(5) is also almost unique in the FDCPA because consumers must prove that the debt collector intended to violate the § 1692d(5) rather than the strict liability scheme that is sufficient for consumers to establish almost any other violation of the FDCPA.  Such intent is and should be a question reserved for the trier of fact (usually a jury) in all but extreme “outlier” cases.

Nevertheless, people who receive calls from debt collectors and suspect or believe that the frequency or pattern of these calls may constitute harassment are wise to thoroughly document all conversations, messages, and the unanswered calls (dates, times, incoming telephone numbers, and caller’s name on the caller ID). This is always a good idea. For more information about how to document your potential FDCPA and/or TCPA case, click on DOCUMENTING YOUR FDCPA AND TCPA CASE.

WHAT ARE THE “OTHER FACTORS” THAT COURTS OFTEN CONSIDER WHEN EVALUATING WHETHER THE DEBT COLLECTOR INTENDED TO HARASS, ANNOY, OR ABUSE THE CONSUMER

After 35 years of FDCPA call frequency litigation, modern consumers seldom have “low hanging fruit” FDCPA call frequency cases especially against debt collectors who are readily identifiable and who probably have insurance coverage or resources sufficient to indicate a reasonable likelihood of collecting

Few FDCPA cases based solely upon call frequency and call patterns are “low hanging fruit”. The more the consumer allows the debt collector to talk, the more likely less scrupulous debt collectors will violate the FDCPA in other, less slippery, ways.

a potential judgment.  These days, debt collectors seldom call consumers back immediately after the consumer terminated a conversation by hanging up on the debt collector.  Most debt collectors no longer bombard consumers with 5 or more calls during one day.  In cases which are not “low hanging fruit”, consumers should be especially careful to document the content of each conversation and preserve evidence of each call.

What facts do the courts often rely on when determining whether a call frequency or pattern evidences an intent to harass, annoy, or abuse a consumer when the call frequency is not unusually low or excessive?

Some of the Other Factors frequently applied by the federal trial courts consist of conduct which violates a consumer’s rights (but not necessarily a Wrong Person’s rights) under other sections of the FDCPA.   Such violations include cases where the debt collector : (1) falsely accused the consumer of committing a crime; (2) falsely threatened to sue the consumer or claiming the right to exercise a legal remedy it is not entitled to exercise; (3) called at an impermissible time (i.e., between 9:00 p.m. and 8:00 a.m.); (4) continued to call at the consumer’s workplace after being told to stop;  (5) continued to call the consumer after the consumer sends a cease communication letter; (6) continued to call the consumer after the consumer notifies the debt collector that the consumer is represented by counsel.   In these cases, the consumers’ stronger claim is usually the claim based upon the conduct described in this paragraph and not on the call frequency cause of action.   This article discusses how the presence of these independent violations influence the courts’ decisions regarding whether the debt collector’s call frequency also violated the FDCPA.

Courts also find evidence that the debt collector called the plaintiff frequently with the intent to harass, annoy, or abuse consumers based upon Other Factors which may not arise to an independent violation but may provide additional evidence of the debt collectors intent where the debt collector : (7) continues to call after the consumer (truthfully) tells the debt collector that the account was already paid or not owed; or (8) continues to call the consumer after the consumer truthfully explains that the consumer is unable to pay due to extenuating but permanent circumstances such as disability, illness, or long term unemployment.

Court also often consider whether the consumer or Wrong Person : (9) told the debt collector to stop calling and, if so, whether the debt collector complied.   Telling a debt collector to “Stop Calling” may approach  a necessary fact in some cases before many judges in FDCPA call frequency cases, doing so does not assure a successful FDCPA call frequency case.   Nevertheless, consumers who receive calls on their cell phones and tell the debt collector to “Stop Calling” often develop TCPA cases which are worth between $ 500 to $ 1,500 per call.

HOW DOES THE PRESENCE OR ABSENCE OF “OTHER FACTORS” AFFECT A CONSUMER’S CHANCES OF SUCCESSFULLY SUING A DEBT COLLECTOR FOR HARASSING BY CALLING TOO OFTEN?

Does the presence (or absence) of Other Factors affect your odds of successfully suing a debt collector for harassing you by calling too often? The answer is “it depends”.

Courts examining call volume and frequency claims first look at the number of calls, the duration of the calls (e.g., how many days, weeks, months or years that the debt collector called), and then the call pattern (number of calls in an hour or day); and calling back immediately after a hang up).

Most courts will accept evidence of abusive call frequency and/or call patterns as sufficient to prove that the debt collector made the calls with an intent to harass.

The FDCPA call frequency case survey produced several cases where consumers pursued violations of the FDCPA in addition to their call frequency claims.  Chart # 9 (below) shows the call frequencies and the type of additional violation of the FDCPA that the court found in favor of the consumer when denying the debt collector’s motion for summary judgment.

CHART # 9  Shows The Cases Where The Court Ruled That The Debt Collector Violated Sections Of The FDCPA In Addition To Calling Too Frequently.

 

 

Cases where the debt collector violated numerous provisions of the FDCPA by definition usually include prominent facts which indicate that the debt collector intended to harass the consumer.    Cases where the consumer is not relying solely on the volume of calls provide another layer of proof to support the consumer’s call frequency claims too.

As Chart Number 10 (below) shows, consumers who also prove that the debt collector violated sections of the act other than 1692d(5) (call frequency) have a better chance of successfully defending against a debt collector’s motion for

CHART # 10 Compares The Number of Calls and Duration of Calls In Cases Where The Consumer Proved Only The Call Frequency With Cases Where The Consumer Also Proved Additional FDCPA Violations.

summary judgment than a case based solely upon call frequency.

Another way to evaluate the relative strength of the consumer’s cases which include solid proof of other violations is to compare the number of calls and duration of the calls in these cases with the call frequencies in cases where the debt collectors prevailed on their motion for summary judgment.

CHART # 11 Compares The Number And Duration Of Calls In Cases Where The Consumer Proved Additional FDCPA Violations With All Cases Where The Courts Granted The Debt Collector’s Motion For Summary Judgment

 

 

 

 

 

INVALID DEBTS ARE ALMOST AS PERSUASIVE EVIDENCE OF THE DEBT COLLECTOR’S INTENT TO HARASS BY CALLING FREQUENTLY AS CALLING A  “WRONG PERSON”

Consumers who owe a debt have standing to pursue their FDCPA claims regardless of whether they may owe the debt. Otherwise, the FDCPA would be almost pointless. Nevertheless, the courts are offended when a debt collector continues to attempt to collect a debt after the consumer truthfully tells the debt collector that they paid off the debt, settled the debt, or even that the insurance company has promised to pay the balance.  But, courts will consider whether the debt was enforceable or invalid when a consumer raises a FDCPA claim arising from such character of the debt.

Many debt collectors appear to routinely “double down” when a consumer informs the debt collector that the debt is not valid because, for example, the never owed it or the consumer paid the creditor or a previous debt collector.  These debt collectors could attempt to go back up the chain and inquire but decide to continue to call the consumer even when presented with a reasonable basis to question whether the debt is valid.  Call frequency claims tend to survive motions for summary judgment along with other, probably more serious FDCPA claims arising from the invalid or unenforceable character of the debt.

In Scott v. Florida Health Science, the United States District Court for the Middle District of Florida denied defendant’s motion to dismiss where plaintiff’s complaint alleged that defendant called 17 times during an eight month period. Although 17 calls during an eight month period would often be very reasonable, the court probably considered the plaintiff’s allegation that she told the defendant that the insurance company had settled the claim and that she — the patient — was not liable for any balance billing. Scott v. Fla. Health Sci. Cntr., Inc., 2008 WL 4623083 (M.D. Fla. 2008).

In Brandt v. IC System, Inc., the court denied defendant’s motion for summary judgment where plaintiff presented evidence that defendant called 101 times during a 59 day period. The plaintiff also filed an affidavit stating that he told the debt collector to “stop calling” and that the account was paid. Brandt v. IC System, 2010 WL 582051 (M.D. FL. 2010).

In Penny v. Williams & Fudge, Inc., the United States District Court for the Middle District of Florida denied the defendant’s motion to set aside a default where the plaintiff had provided evidence that defendant called him 50 to 70 times. Although the court did not refer to the duration of the calls, the court noted that the plaintiff told defendant that he did not owe the debt.  Penny v. Williams & Fudge, Inc.,  840 F.Supp.2d 1314 (M.D. FL 2012).

Courts also take a dim view of debt collectors who attempt to collect debts which were discharged in bankruptcy.

For example, the district court denied defendant’s motion to dismiss plaintiff’s complaint alleging that defendant called plaintiff 11 times during a 6 week period. Although 11 calls in 42 days does not seem excessive, the court was considering this case at the motion to dismiss stage. Plaintiff’s allegation that plaintiff had discharged the debt in bankruptcy also provided a credible indication that the defendant may have intended to harass the consumer. Brunner v. Allianceone Receivables Management, Inc., (N.D. Ill. 2017)

Consumers who falsely tell the debt collector that they have filed bankruptcy or intend to do so very soon probably fair worse than if they’d taken another approach and been truthful. For example, in Dudley v. Powell Law Office, P.C., the court granted defendant’s motion to dismiss on facts which ordinarily might have survived a motion to dismiss, especially in the Ninth Circuit. Consumer’s complaint alleged that debt collector called her near daily including four times in a day. The court noted that the consumer falsely told the debt collector that she was “in the process of filing for bankruptcy”.  The court noted that plaintiff had still not filed bankruptcy seven and one-half months later.  The court commented Plaintiff appears to be evading a legitimate debt …” Although it would normally be premature to consider any evidence that the consumer had misrepresented her status or intentions, the court dismissed the consumer’s FDCPA lawsuit.  Dudley v. Powell Law Office, P.C. 2011 WL 4544632 (W.D. Wash. 2011).

The FDCPA does not universally prohibit debt collectors from attempting to collect time barred consumer debts. Of course, if debt collectors engage in conduct which violates a specific provision of the FDCPA, the debt collector may be liable to the consumer.

Debt collectors can continue to call consumers attempting to collect time barred debts but can not harass the consumer.

In Conover v. BYI Collection Services, LLC, the district court granted defendant’s motion for summary judgment where the evidence indicated that debt collector called the consumer 27 times during a 92 day period attempting to collect a 20 year old Speigel account. Perhaps the court may have denied summary judgment in a different case where a defendant calls 27 times attempting to collect a 20 year old zombie debt but, in this case, the consumer alleged that she told the debt collector to “stop calling” during when she returned two calls but the debt collector’s recordings of the telephone conversations indicated that consumer did not do so. Connover v. BYL Collection Services, LLC, (W.D. N.Y. 2012).

Portfolio Recovery Associates, LLC attempted to collect a wife’s 13 year old zombie debt by calling a couple’s home phone which she shared with her husband. PRA called 18 times during a 4 month period which averages slightly more than once a week. The consumer’s husband told PRA that they refused to pay the debt but PRA continued to call so the husband sued PRA. The court granted PRA’s motion for summary judgment reasoning that PRA was attempting to contact the wife and that the frequency of calls did not evidence that PRA intended to harass the plaintiff husband. Newton v. Portfolio Recovery Associates, LLC, (S.D. OH 2014).

As shown above, debt collectors often successfully pursue motions for summary judgment in call frequency cases. It’s worth remembering that consumers who make it to trial will not necessarily succeed in obtaining a judgment against the defendant debt collector.

In Bennett v. Arrow Financial Services, Inc., a consumer proved that the debt collector called consumer 5 times during a 30 day period and that the consumer spoke with the debt collector twice.

The call frequency in Bennett, viewed in isolation,  does not seem offensive based only on those limited facts. The case probably went to trial because the debt collector was attempting to collect a 14 year old account and the consumer answered 2 of the calls. The consumer also picked up and then immediately hung up on some of the remaining 3 phone calls. At the conclusion of the trial, the jury entered a verdict in favor of the defendant debt collector. Bennett v. Arrow Financial Services, Inc. (N.D. Ill. 2004).

ORALLY DISPUTING OWING THE DEBT – WITHOUT A FACTUAL BASIS – IS USUALLY INEFFECTIVE IN PROVING THAT THE DEBT COLLECTOR INTENDED TO HARASS THE CONSUMER BY CALLING FREQUENTLY

Some consumers believe that, if a consumer orally disputes owing the debt, the debt collector must stop calling. Consumers who believe this are wrong.

Consumers are allowed up to 30 days from the date they receive the initial letter from the debt collector in which to send the debt collector a written request that the debt collector validate the debt.

After the debt collector receives a consumer’s timely written request to validate the debt, the debt collector must stop all attempts to collect the debt including calling the consumer. The requirements for debt validation are usually minimal. See, for example, Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999). Once the debt collector validates the debt, the debt collector can resume attempting to collect the debt.

Conclusionary disputes that the consumer does not owe the debt — without more — are not likely to elevate a “modest” number of calls into a call frequency violation.  For example, in Hoch v. Mid-Minnesota Management Service, Inc. the debt collector called 5 times during a 27 day period.  Although the consumer orally disputed owing the debt, the court granted the debt collector’s motion for summary judgment.   Hoch v. Mid-Minnesota Management Services Inc.  (D. MN 2016).

CONSUMERS WHO RECEIVE COLLECTION CALLS AT WORK MAY  HAVE INDEPENDENT GROUNDS TO SUE FOR FDCPA VIOLATIONS IN ADDITION TO PROVIDING EVIDENCE TO SUPPLEMENT THE CALL HISTORY IN CALL FREQUENCY CASES 

Among the types of debt harassment which are specifically prohibited by the FDCPA, one of the most severe is when debt collectors continue to call consumers at their workplace after the consumer has truthfully informed them that such calls are inconvenient and/or prohibited by the consumer’s employer.

CAN I SUE A DEBT COLLECTOR FOR CALLING ME AT WORK ? 

The FDCPA allows does not prohibit all calls by debt collectors to consumers at their place of employment. But, the FDCPA provides consumers some protection at their place of employment without requiring the consumer to prove that the frequency or pattern of the debt collector’s calls indicated that the debt collector intended to harass the consumer.

The FDCPA, Section 1692c(a(3) prohibits debt collectors from communicating with a consumer :

at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication.”

15 U.S.C. § 1692c(a)(3). Sometimes, a debt collector should be able to tell that there is not a convenient time to call the consumer at their place of employment. For example, if the debt collector pulled the consumer’s credit report containing information that the consumer is employed as a school teacher or a nurse at a hospital, there probably is not a convenient time to call them while they are working. In most cases, however, the consumer needs to tell the debt collector that it is not convenient to call them during work or, if true, that the consumer’s employer prohibits them from receiving personal calls while they are working. It doesn’t hurt for Wrong Persons to notify the debt collector that they are calling their place of employment. It may cause the debt collector to back off and, if the debt collector doesn’t, most courts would consider the plaintiff’s warning not to call them at work when deciding whether the call frequency or pattern evidences that the debt collector intended to harass them.

Every collection harassment case is different. Debt collection calls to a person’s place of employment are often particularly severe.

Only “consumers” are protected by the FDCPA’s specific provision governing calls to the consumer’s place of employment. Any “person” can file a lawsuit against a debt collector who call frequency or pattern evidences an intention to annoy, abuse or harass them.

Consumers can pursue their claims that the debt collector violated both 15 U.S.C. § 1692c(a)(3) (governing calls to the consumer’s place of employment) and 1692d(5) (concerning call volume and frequency).

COURTS OFTEN CONSIDER WHETHER THE DEBT COLLECTOR CALLED THE CONSUMER’S PLACE OF EMPLOYMENT WHEN EVALUATING THE COLLECTOR’S INTENT IN FDCPA CALL FREQUENCY CASES

In call frequency and pattern cases, courts understandably consider whether the debt collector’s calls included calls to the plaintiff’s place of employment when evaluating whether the debt collector intended to harass the person they called. Sometimes, the court rules that the evidence is sufficient to create a question of fact for the jury to decide, sometimes, the court grants the debt collector’s motion for summary judgment. Compare, Green v. Creditor Justus Remedium, LLP (E.D. Cal. 2013) (denying debt collector’s motion to dismiss where the debt collector called plaintiff almost daily for 2 months including calls to plaintiff’s place of employment) with Karp v. Financial Recovery Srvcs., Inc. (W.D. Tex 2013) (granting defendant’s motion for summary judgment where the debt collector called only 6 times during 14 days, plaintiff answered 2 calls and the defendant stopped calling after the plaintiff instructed the debt collector to stop calling at the workplace.)

In an unusual case where the plaintiff moved for summary judgment, the court noted that the defendant debt collector’s calls included calls to plaintiff’s place of employment in its order granting plaintiff’s motion. In Sanchez v. Client Services, Inc., the debt collector called the plaintiff 54 times during a 193 day period including calls to the plaintiff’s workplace and left 24 messages.  More importantly, the debt collector also called the plaintiff 6 times during one day. Sanchez v. Client Services, Inc., 520 F.Supp.2d 1149 (N.D. Cal. 2007).

CONSUMERS CAN OFTEN SUE DEBT COLLECTORS WHO DISCUSSED THEIR DEBT WITH THIRD PARTIES FOR VIOLATING THE FDCPA IN ADDITION TO PROVIDING EVIDENCE TO SUPPLEMENT THE CALL HISTORY IN CALL FREQUENCY CASES  

DEBT COLLECTORS WHO TELL SOMEONE ELSE ABOUT A CONSUMER’S DEBT OFTEN VIOLATE THE FDCPA? 

Among the types of debt harassment which are specifically prohibited by the FDCPA, one of the most common but embarrassing occurs when a debt collectors discloses the existence of an alleged debt to family, friends, coworkers, neighbors and other third parties without a permissible purpose.   

Most courts would probably consider evidence of third party disclosures when evaluating the call frequency, duration, and patterns to decide whether the debt collector may have intended to harass, annoy or abuse the consumer.

The FCPA prohibits debt collectors from disclosing the existence of any debt or even identifying themselves as a debt collector subject to several narrow exceptions such as furnsihing information about the debt to the consumer credit reporting agencies.

The FDCPA, Section 1692b, provides :

“Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall—

(1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;

(2) not state that such consumer owes any debt;

(3) not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.

15 U.S.C. § 1692b (2018).

An interesting question is who has the right to sue the debt collector for calling a non-debtor and disclosing the existence of the debt. The answer depends upon which statute and which cause of action is alleged in the lawsuit.

A “Wrong Person” (anyone who was not a party to the original loan) probably has grounds for a lawsuit under the Telephone Consumer Protection Act (“TCPA”).  A Wrong Person who receives calls of their cell phones from a debt collector concerning a friend, relative’s or co-worker’s past due debts rarely consents to receiving such calls. (It could happen but not very often.) The TCPA prohibits callers from using an Automated Telephone Dialing System (“ATDS”) or prerecorded voice when calling a cell phone unless the person who received the calls consented to being called on their cell phone OR the caller is attempting to collect a debt owed to a federal agency. Callers who violate the TCPA are liable to the plaintiff in the amount of $ 500 per call and up to another $ 1,000 if the violation was willful.

The consumer would probably have grounds to sue the debt collector for violating § 1692b(2) by disclosing the existence of the debt or the collection agency’s name to the non-debtor who received the call.

In Casey v. I.C. System, Inc., the United States District Court for the Middle District of Florida denied plaintiff’s motion for summary judgment where the evidence showed that the debt collector called his non-debtor spouse 171 times during a 6 month period. The debt collector spoke once with the non-debtor spouse and the debtor consumer answered 9 of the debt collector’s calls. Casey v. I.C. System, Inc. (M.D. FL 2010).   It should not surprise a debt collector whose call frequency averaged once a day for  6 or 7 months that the case is heading to trial especially if the debt collector disclosed the debt to a third party.

Can a consumer sue a creditor (usually the original lender or subsequent servicer of the account who began servicing the account before the consumer defaulted on their payments) for calling third parties and disclosing the existence of the debt? Not under the FDCPA. The Wrong Person who receives these calls on their cell phone may have a cause of action under the TCPA but the consumer can not sue a creditor under the FDCPA for disclosing the debt but may have a viable FDCPA claim based upon the frequency and/or pattern of the calls.

CAN I SUE A CREDITOR FOR DISCUSSING MY DEBT WITH SOMEONE OTHER THAN MY IMMEDIATE FAMILY ?

Florida consumers may be able to sue a creditor under the Florida Consumer Collection Practices Act (“FCCPA”). The FCCPA provides :

“In collecting consumer debts, no person shall :

         (5) Disclose to a person other than the debtor or her or his family information                 affecting the debtor’s reputation, whether or not for credit worthiness, with                     knowledge or reason to know that the other person does not have a legitimate                 business need for the information or that the information is false.”

Florida Statutes, § 559.72(5) (2018). So,  Florida consumers can sue debt collectors and creditors for violating the FCCPA by disclosing or discussing their debt with people other than members of their immediate family.

Consumers should always consult with an attorney who practices in the state they reside in to explore their options under their state’s laws.,div id=”5 . 10″>

DEBT COLLECTORS’ FALSE THREATS TO SUE CONSUMERS MAY PROVIDE CONSUMERS INDEPENDENT GROUNDS TO SUE THE DEBT COLLECTOR IN ADDITION TO PROVIDING EVIDENCE TO SUPPLEMENT THE CALL HISTORY IN CALL FREQUENCY CASES

DEBT COLLECTORS’ FALSE THREATS TO SUE OFTEN VIOLATE THE FDCPA

Among the types of debt harassment which are specifically prohibited by the FDCPA, one of the most common is debt collectors illegally threatening to sue when they can not do so or do not intend to do so.

15 U.S.C. § 1692e provides that :

“A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section :

       ***

       (5) The threat to take any action that cannot legally be taken or that is not intended          to be taken.”

15 U.S.C. § 1692e(5) (2018).

The phrase “threat to take any action” is interpreted broadly and includes threats to exercise remedies or powers which the debt collector or creditor would have only if they went to court. For example, a threat to garnish a consumer’s wages imminently although the debt collector has not even filed suit would constitute a threat to take legal action if the debt collector represented that they had the present right to do so. Another example arises when debt collectors who threaten to sue consumers in order to collect old accounts which are time barred under the applicable statute of limitations.

Not all references to lawyers or the courts are threats to sue however, For example, in Cokeley v. Midland Credit Management, Inc., the court ruled that the debt collector’s use of the phrase “pre-legal” was not a threat to sue. Cokeley v. Midland Credit Management, Inc. (D. Kan. 2014).

Even if the court believed that Midland’s language was cutting it close without violating § 1692e(5), it would probably require very egregious facts and not merely 2 calls during a 20 day period to support a § 1692d(5) call frequency claim.  

Similarly, in Sutton v. New Century Services the court granted the debt collector’s motion to dismiss the consumer’s complaint with prejudice despite the consumer’s motion to amend its complaint to allege that the debt collector left messages requesting that the consumer take action to prevent a “legal matter from going forward”. The consumer in Sutton received only 2 calls during a 75 day period. Sutton v. New Century Services 2006 WL 2038500 (D. N.J. 2006).

COURTS OFTEN CONSIDER FALSE THREATS TO SUE THE CONSUMER WHEN EVALUATING CALL FDCPA FREQUENCY CASES

Debt collectors whose falsely threaten to sue often go “over the top” with their threats and call very frequently. In Hance v. Premier Recovery Group, Inc., the debt collector made 20 calls during a one month period. But, the debt collector called 4 times during 1 day including calls after the consumer told the debt collector to stop calling. The court also considered the evidence proving that the debt collector falsely threatened to take legal action against the consumer. The court granted the consumer’s motion for a default judgment against the debt collector. Hance v. Premier Recovery Group, Inc.2013 WL 85068 (W.D. N.Y.   2013).

In Lashbrook v. Portfolio Recovery Associates, LLC, the court denied the defendant’s motion for summary judgment where the debt collector called 120 times during 1 year. This call frequency would often not survive a defendant’s motion for summary judgment in the Eastern District of Michigan, but the debt collector called 12 times during 1 day! If the consumer needed any additional evidence to prove that the debt collector intended to harass, annoy, or abuse the consumer — a premise which is doubtful — it probably did not help the defendant’s case that the debt collector also threatened to sue the consumer.    Lashbrook v. Portfolio Recovery Associates, LLC (E.D. Mich. 2013).

DEBT COLLECTORS WHO FALSELY ACCUSE A CONSUMER OF COMMITTING A CRIME VIOLATE THE FDCPA AND THIS ALSO PROVIDES EVIDENCE TO SUPPLEMENT THE CALL HISTORY IN CALL FREQUENCY CASES 

If a debt collector falsely accuses a consumer of committing a crime, the consumer probably has grounds to sue the debt collector under the FDCPA for harassing the consumer regardless of the number of telephone calls involved.  Similarly, Florida and some other states have consumer debt collection practices acts which prohibit creditors from making such false accusations.

Courts consider whether a debt collector falsely accused the consumer of committing a crime when evaluating whether the debt collector intended to harass, annoy or abuse the person called by causing the telephone to ring repeatedly or continuously.

DEBT COLLECTOR’S FALSE ALLEGATIONS THAT THE CONSUMER COMMITTED A CRIME OFTEN VIOLATE THE FDCPA

Among the types of debt harassment which are specifically prohibited by the FDCPA, one of the most severe is when debt collectors falsely accuse a consumer of committing a crime.

15 U.S.C. § 1692e provides that

“A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section :

    ***

    (7) The false representation or implication that the consumer committed any crime        or  other conduct in order to disgrace the consumer.

15 U.S.C. § 1692e(7) (2018).

Debt collectors who collect pay day loans frequently accuse the consumer of committing a crime – usually involving a “bad check”. Pay day loans inherently involve post-dated checks. Post dated checks are not actionable as criminal “bad checks” but debt collectors feed on people’s fears by falsely threatening to bring criminal charges.

COURTS OFTEN CONSIDER WHETHER THE DEBT COLLECTOR FALSELY ACCUSED THE CONSUMER OF COMMITTING A CRIME WHEN DETERMINING WHETHER THE DEBT COLLECTOR INTENDED TO HARASS, ANNOY, OR ABUSE THE PLAINTIFF BY CALLING TOO OFTEN

The courts take a dim view of debt collectors who falsely accuse a consumer of committing a crime.

In Ortega v. Collectors Training Institute, the United States District Court for the Southern District of Florida, denied a defendant’s motion to dismiss the consumer’s call frequency claims although the complaint alleged that the debt collector called 17 times during a 114 day period. This is on the low side for a call frequency case. But, the consumer’s complaint also alleged that the debt collector accused the consumer of committing a crime. Ortega v. Collectors Training Inst. 2011 WL 241948 (S.D. FL. 2011). With that Other Factor, the court probably had little reservation about allowing the consumer to move forward with their call frequency claims.

In Kromelbein v. Envision Payment Solutions, Inc., the evidence indicated that the debt collector called 45 times during a two month period. The debt collector often hung up on the consumer when he answered the debt collector’s calls. The consumer also swore that the debt collector left him a “nasty” message” and that that he was made to feel like a “low-life criminal” but would not expound on his description, saying, “I don’t want to describe any more detail than that. It says it all.” Kromelbein v. Envision Payment Solutions, Inc. (M.D. PA 2013). The court was critical of the lack of detail in the consumer’s affidavit but denied the debt collector’s motion for summary judgment.

DEBT COLLECTORS WHO CALL BETWEEN 9:00 P.M. AND 8:00 A.M. OFTEN VIOLATE THE FDCPA AND CONSUMERS WHO RECEIVE CALLS AT AN IMPERMISSIBLE TIME PROBABLY HAVE INDEPENDENT GROUNDS TO SUE THE DEBT COLLECTOR IN ADDITION TO PROVIDING EVIDENCE THAT THE DEBT COLLECTOR INTENDED TO HARASS, ANNOY, OR ABUSE THE CONSUMER BY CALLING TOO OFTEN 

WHEN CAN A DEBT COLLECTOR CALL?

The FDCPA prohibits debt collectors from calling consumers between 9:00 p.m. and 8:00 a.m. :

[A] debt collector may not communicate with a consumer in connection with the collection of any debt-(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer…. [A] debt collector shall assume that the convenient time for communicating with a consumer is after 8[:00 a.m.] and before 9[:00 p.m.], local time at the consumer’s location[.]

15 U.S.C. § 1692c(a)(1) (2018).

If the debt collector calls at a time which is not permitted, a consumer may have a cause of action for the debt collector’s violation of 15 U.S.C. § 1692c(a)(1) in addition to a possible claim that the debt collector intended to harass or annoy by causing the phone to ring repeatedly or continuously in violation of 15 U.S.C. § 1692d(5).

Only a “consumer” can sue a debt collector for calling an impermissible time or inconvenient time or place in violation of 15 U.S.C. § 1692c(a)(1).  For purposes of § 1692c(a)(1), the term “consumer” includes the consumer’s spouse, the consumer’s parent (if the consumer is a minor), and the consumer’s guardian, executor, or administrator.  15 U.S.C. § 1692c(d) (2018). (Ordinarily, a “consumer” “means any natural person obligated or allegedly obligated to pay any debt. “ 15 U.S.C. § 1692a(3).)

 If a debt collector calls a Wrong Person, the Wrong Person may or may not be a “consumer” as set forth in the expanded definition in § 1692c(d).  Even under the generally applicable definition of consumer set forth in  § 1692a(3), a Wrong Person would probably be a “consumer” if the debt collector continued to tell him or her “pay up”. On the other hand, if the debt collector acknowledges that “You are not the person we’re trying to contact”, then the Wrong Person is probably not a consumer. Montgomery v. Huntington Bank, 346 F.3d 693 (6th Cir. 2003).

Nevertheless, a Wrong Person who is not a “consumer’ is still a “person” who may sue a debt collector for calling too frequently in violation of 15 U.S.C. § 1692d(5).  And, if the debt collector called the Wrong Person’s cell phone, the cell phone user may have valuable claims under the TCPA.

COURTS OFTEN CONSIDER WHETHER THE DEBT COLLECTOR CALLED AT AN IMPERMISSIBLE TIME WHEN DETERMINING WHETHER THE DEBT COLLECTOR INTENDED TO HARASS, ANNOY, OR ABUSE THE PLAINTIFF BY CALLING TOO OFTEN

Debt collection calls at impermissible times can supplement the evidence of frequent telephone calls to increase the plaintiff’s odds of success where the call frequency is a “close call”.

A federal court denied AFNI’s motion for summary judgment where defendant AFNI called a Wrong Person 10 times during a 3 month period and, on one occasion, called the plaintiff twice within a 24 hour period. The court ruled that the evidence that AFNI made one call to plaintiff around 7:00 a.m. created a triable issue of fact whether AFNI intended to annoy or harass the plaintiff with frequent phone calls. Black v. AFNI, Inc. (D. N.J. 2016) Absent this call during an impermissible time, the plaintiff would have probably lost this case.

In Turner v. McCarthy, Burgess & Wolff, the court granted defendant’s motion for summary judgment where the evidence showed that defendant collection law firm called the consumer 18 times during a 2 week period and all calls were made within normal business hours. Turner v. McCarthy, Burgess & Wolff (W.D. PA 2016).

Defendant Credit Management, L.P. called a Wrong Peron in Texas 14 times during a 76 day period including calls after 9:00 p.m. three times. Plaintiff’s telephone number was assigned a 469 area code which is normally associated with the Dallas, Texas area. The debt collector was attempting to call a consumer who lived in California. Although the court found that the defendant transposed some of the consumer debtor’s telephone number, the case implies that the debtor’s phone number also bore the 469 area code. The plaintiff did not answer any of the calls but she did return the calls twice. During the second call, the plaintiff finally informed the debt collector that she was not the person they were seeking. The debt collector immediately coded the file and plaintiff did not receive any further calls from defendant. Coleman v. Credit Management, L.P. (N.D. Tex. 2011). The court ruled that the volume of the calls did not evidence an intent to harass the plaintiff especially under the facts of the case (i.e., the debt collector immediately ceased calling once informed of its error.) The court further ruled that the debt collector had proven that the calls were the result of a bona fide error.

“WHEN CAN A  CREDITOR CALL A FLORIDA CONSUMER ?”

Although the FDCPA applies only to debt collectors and not to creditors, Florida and a few other states have enacted consumer collection practices acts which apply to creditors in addition to debt collectors.

The Florida Consumer Collection Practices Act (“FCCPA”) allows consumers to sue debt collectors and creditors who call consumers between 9:00 p.m. and 8:00 a.m. But, in 2014, the Florida legislature amended the FCCPA to address the portability of area codes and increasing use of toll free numbers. The FCCPA now provides that no “person” shall:

“(17) Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor’s time zone without the prior consent of the debtor.

        (a) The person may presume that the time a telephone call is received conforms to          the local time zone assigned to the area code of the number called, unless the                  person reasonably believes that the debtor’s telephone is located in a different                time zone.

       (b) If, such as with toll-free numbers, an area code is not assigned to a specific               geographic area, the person may presume that the time a telephone call is received         conforms to the local time zone of the debtor’s last known place of residence,                 unless the person reasonably believes that the debtor’s telephone is located in a               different time zone.”

Fla. Statutes The FCCPA allows consumers who win to recover statutory damages in an amount of up to $ 1,000.00 plus any actual damages and,even punitive damages in appropriate cases. Prevailing consumers are also entitled to recover their reasonable attorney’s fees and taxable costs. Fla Statutes, § 559.72(2) (2018).

DEBT COLLECTORS VIOLATE THE FDCPA BY CALLING CONSUMERS AFTER THEY RECEIVE A LETTER FROM THE CONSUMER REQUESTING THAT THE DEBT COLLECTOR CEASE COMMUNICATION OR REFUSES TO PAY THE DEBT OR NOTIFIES THE DEBT COLLECTOR THAT THE CONSUMER IS REPRESENTED BY AN ATTORNEY REGARDLESS OF THE NUMBER OF TELEPHONE CALLS AND THESE VIOLATIONS ALSO PROVIDE EVIDENCE THAT THE DEBT COLLECTOR INTENDED TO HARASS, ANNOY, OR ABUSE THE CONSUMER BY CALLING TOO OFTEN

Courts consider whether the consumer sent the debt collector a written request to cease communication or notified the debt collector that they were represented by an attorney when evaluating whether the debt collector intended to harass, annoy or abuse the person called by causing the telephone to ring repeatedly or continuously.   If a debt collector disregards a written request for cease communication or any notice that the consumer is represented by an attorney, the consumer may have grounds to sue the debt collector under the FDCPA for harassing the consumer regardless of the number of telephone calls involved.  Similarly, Florida and some other states have consumer debt collection practices acts which prohibit creditors from communicating with consumers who are represented by counsel or calling with excessive frequency.

Many consumers who request that debt collectors cease communication also hire counsel to represent them concerning the debt although legal representation is not required in order for the consumer to demand that the debt collector cease communicating with the consumer. So, both factors — whether the consumer sent the debt collector a written request to cease communication and whether the consumer notified the debt collector that the consumer was represented by counsel — are often both present in the calls volume cases where either of these factors are present.

CAN A DEBT COLLECTOR CALL ME IF I AM REPRESENTED BY A LAWYER ? 

Most courts also consider whether the consumer was represented by counsel when evaluating whether the frequency and pattern of calls may evidence merits conducting a trial. A few courts, however, appear adamant to allowing any corroborating evidence in even when the court requires “other factors”.

The FDCPA, § 1692c(a)(2) prohibits debt collectors from calling consumers

“(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer.”

15 U.S.C. § 1692c(a)(2) (2018).   Under § 1692c(a)(2), the term “consumer” includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.  15 U.S.C. § 1692c(d) (2018).

Sometimes, consumers prevail on their allegations that the debt collectors called them after the consumer notified the debt collector that the consumer was represented by an attorney but the court finds evidence of intent to support the call frequency (§ 1692d(5)) claim insufficient to prove the plaintiff’s case without conducting a trial. In Morrow v. Weinerman & Asscociates, LLC, the court denied plaintiff’s motion for summary judgment on the call frequency claim where the debt collector called 19 times during a six month period and continued to call the consumer after three (3) very “heated” telephone conversations where the debt collector demonstrated creative attempts to avoid taking down the consumer’s name. Morrow v. Weinerman & Associates, LLC (D. MN. 2011).

In evaluating potential claims for call frequency violations where consumer also informed the debt collector that the consumer was represented by an attorney, the attorney involvement appears to shore up “close” cases of call frequency but has its limits.

In Brown v. Hosto & Buchan, PLLC, the court denied defendant’s motion to dismiss where the plaintiff alleged that the debt collector called a consumer who informed them that they were represented by an attorney and the debt collector called 17 times during one month. Brown v. Hosto & Buchan, PLLC, 748 F.Supp.2d 847 (W.D. Tenn. 2010). Many courts would not have disposed of a case alleging this call frequency on a motion to dismiss especially where the consumer alleged that he was represented by an attorney.

Another court flatly rejected attorney representation of the consumer as an Other Factor to be considered in evaluating whether the debt collector calls were frequent enough to evidence that the debt collector intended to harass, annoy or abuse the consumer. In Lee v. Halsted Financial Services, LLC, the consumer moved for a default judgment against the debt collector who failed to respond to the consumer’s lawsuit. The evidence showed that the debt collector called the consumer 4 times during a 5 day period and that the consumer told the debt collector that an attorney represented her. Ordinarily, the call frequency is fairly low even for a 5 day period but the attorney representation should substantially strengthen the consumer’s case. The court denied the consumer’s motion for a default judgment on the call frequency case. In a district that has required plaintiffs to present evidence of Other Factors in order to prevail on their call frequency and call pattern cases, the court disingenuously ruledAlthough plaintiff alleges that she told defendant she was represented by an attorney, she does not allege that she told defendant not to call back or that a wrong number was dialed.”)  Lee v. Halsted Financial Services, LLC (N.D. Ind. 2016). Perhaps the court had other reasons for rejecting plaintiff’s call frequency claims but the rationale seems disingenuous. Debt collectors understand that they are not supposed to communicate with represented consumers and the FDCPA expressly provides that debt collectors who do so have violated the same general section of the FDCPA as those who ignore cease communication letters or call consumers at their place of employment where such calls are not allowed.  Why make such a literal distinction that many unsophisticated consumers would not recognize and which also constitutes an independent violation of the FDCPA’s anti-harassment provisions?

Although only consumers can pursue a debt collector for violating § 1692c(a)(2) by continuing to call them after the debt collector knows that the consumer is represented by an attorney (and receives the attorney’s contact information), the courts may also consider whether a Wrong Person was represented by counsel when the courts evaluate a Wrong Person’s suit against a debt collector based upon calling too often.

In Finney v. MIG Capital Management, Inc., the court entered a default judgment against the debt collector where the evidence showed that the debt collector called the plaintiff 33 times during an 11 day period. The court also noted that the debt collector made 30 of these calls after the consumer sent the debt collector a letter requesting that the debt collector cease communication and told the debt collector that the consumer was represented by an attorney and how to contact her lawyer.  Finney v. MIG Capital Mgmt., Inc. (S.D. W. Va. 2014). Nor did the debt collector’s threats to sue the consumer help the debt collector.

In McGowan v. Credit Management, L.P., the court denied defendant’s motion for summary judgment on the consumer’s claim that defendant debt collector violated 1692d(5) by calling too frequency where the plaintiff by calling her 71 times during a 90 day period. The court considered that the consumer disputed owing the debt and told the debt collector that she was represented by counsel. McGowan v. Credit Mgmt., L.P.   (D. Nev. 2015).

CAN A CREDITOR CALL ME ABOUT A CONSUMER DEBT IF I AM REPRESENTED BY AN ATTORNEY ?

Florida and several other states have consumer debt collection statutes which prohibit creditors from communicating with consumers who are represented by an attorney.  The Florida Consumer Collection Practices Act (“FCCPA”) provides that it is a violation of the FCCPA for “any person” to :

(18) communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor or unless the debtor initiates the communication.”

Fla. Statutes§ 559.72(18)  (2018).

CAN A DEBT COLLECTOR CALL ME AFTER THE DEBT COLLECTOR RECEIVED MY CEASE COMMUNICATION LETTER ?

Most courts also consider whether the consumer sent the debt collector a written request that the debt collector cease communicating with the consumer.

The FDCPA, § 1692c(c) provides consumers with a mechanism to hit the kill switch and stop all the debt collector from communicating with the consumer while attempting to collect the debt. It’s all or none though. Consumers can not elect between various forms of communication and prevail on § 1692c(c) claims. Section 1692c(c) provides :

“If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except—

    (1) to advise the consumer that the debt collector’s further efforts are being                terminated;

        (2) to notify the consumer that the debt collector or creditor may invoke specified          remedies which are ordinarily invoked by such debt collector or creditor; or

        (3) where applicable, to notify the consumer that the debt collector or creditor                intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.”

15 U.S.C. § 1692c(c) (2018).   For purposes of  § 1692c(c), the term consumer includes the consumer’s spouse, parent (if the consumer is a minor), executor, executor, or  administrator.   15 U.S.C. § 1692c(d) (2018).

Although only consumers can pursue a debt collector for violating § 1692c(c) by continuing to contact the consumer after the debt collector received the consumers written notice that the consumer demanded that the debt collector cease all communication OR that the consumer refuses to pay the debt, the courts may also consider whether a Wrong Person similarly placed the debt collector on notice when evaluating whether the debt collector called too frequently.  Telling the debt collector “not me” or “wrong person” and answering some reasonable questions to confirm this representation ought to suffice without requiring a Wrong Person to write and send a letter.

Debt collectors sometimes have a reasonable explanation for continuing to call the consumer after the debt collector received a cease communication letter from the consumer. This doesn’t happen very often though.  In Reddin v. Rash Curtis & Associates, the consumer answered what appears to be the first call the debt collector placed. The consumer immediately sent the debt collector an email demanding that the debt collector cease communication. The debt collector received the email before 11:00 a.m. and called the consumer again later that day around 6:00 p.m. and did not call thereafter.

The court granted the debt collector’s motion to dismiss the consumer’s complaint for violating the cease communication letter and calling with intent to harass the consumer based upon the debt collector’s affidavit that the second call was already in their auto-dialing system before the debt collector received the consumer’s email written cease communication request.  Reddin v. Rash Curtis & Associates (E.D. Calif. 2016). I have to wonder how the debt collector’s dialing program could comply with the FDCPA by allowing the debt collector to automatically dial a second call during a day where the consumer had already spoken with the consumer. The court seemed determined to “distinguish” the cases cited by plaintiff and perhaps the plaintiff did not formulate its argument effectively.

DOES TELLING A DEBT COLLECTOR TO “STOP CALLING” INFLUENCE THE OUTCOME OF AN FDCPA CALL FREQUENCY CASE?

Consumer’s oral requests to “stop calling” are often necessary in TCPA cases to revoke prior express consent. (Plaintiffs who receive unwelcome calls from debt collectors on their cell phones often need to revoke their prior express consent for the debt collector to robo-dial them by telling the debt collector (or creditor) “Stop Calling Me”.)  Because the TCPA provides for statutory damages in the amount between $ 500 to $ 1,500 per call and the statutory damages under the FDCPA are capped at $ 1,000 per case, cell phone users may need to tell the debt collector (or creditor) to “stop calling”.

In FDCPA call frequency cases, the effects are more subtle.   Contrary to what many consumers post in the self help forums, telling a debt collector to “stop calling” does not do much to help establish that the debt collector intended to harass, annoy, or abuse a consumer in a fairly low call frequency case — such as 2 – 4 times per day.  But, even in the lower ranges, there are often other facts which also help prove that the debt collector intended to harass the plaintiff.   Without egregious facts, the value of call frequency cases where there is little evidence of intent other than  2 – 4 calls per day and the consumer told the debt collector to “stop calling” is at best a toss up.  However, in egregious cases the courts will probably consider the consumer’s request that the debt collector “stop calling” when deciding whether to award the full amount of FDCPA statutory damages (i.e., $ 1,000) so it’s helpful to the consumer to do so.

Many “conservative” courts note whether a plaintiff in an FDCPA case told the debt collector to “Stop Calling” and appear to disfavor cases where the plaintiff did not tell the debt collector to stop calling.  Some conservative courts even employ technical arguments to distinguish between requests to “stop calling” often by picking at the language used by unsophisticated consumers.

But, the cases described below indicate that verbally instructing a debt collector to “stop calling” will not boot strap an otherwise very weak call frequency case.

CAN A DEBT COLLECTOR CALL MY HOME PHONE AFTER I TOLD THEM TO TO STOP CALLING  ?

Chart Number 12 (below) compares the outcomes in (1) the 32 cases where a debt collector filed a motion for summary judgment although the consumer produced evidence that the consumer told the debt collector to “stop calling” with (2) cases where the consumer did not tell the debt collector to stop calling  (32 cases).   The cases where the consumer did not tell the debt collector to stop calling excludes the 17 cases where the consumer never spoke with the debt collector.

The cases where : (1) the consumer told the debt collector to stop calling and prevailed are shown in Green Diamonds; (2) the consumer did not tell the debt collector to stop calling but defeated the debt collector’s motion for summary judgment are shown in Green Squares; (3)  the cases where the consumer told the debt collector to stop calling but the court granted the debt collector’s motion for summary judgment are shown in Red Diamonds; and (4) the cases where the consumer did not tell the debt collector to stop calling are shown in Red Squares.   The X axis represents the number of cases and the Y axis represents the peak number of calls per day.

Chart Number 12 shows that consumers won approximately forty per cent (22 of 60 cases) of the defendant’s motions for summary judgment in cases where the consumer told the debt collector to stop calling but successfully defended against  very of defendant’s motions for summary judgment  in  cases where the consumer did not tell the debt collector to stop calling (4 out of 38 cases).   This limited data should not be interpreted to mean that a consumer must tell a debt collector to stop.

These statistics ignore cases where the court did not note whether the consumer told the debt collector to stop calling, the consumer sent a cease communication letter or attorney representation letter, and several other factors which probably skew these results.   The cases where the consumer told the debt collector to “stop calling” are commonly associated with a higher level of “engagement” (or conflict) than other cases so the debt collector has had an opportunity to violate other provisions of the FDCPA in these cases.

Although the debt collectors prevailed on summary judgment in 44 of the 64 cases where the court noted whether the consumer requested that the debt collector stop calling, the consumer to debt collector win/loss ratio is almost reversed in the cases where the court did not note whether the consumer told the debt collector to  stop calling.  Some of this phenomenon can be explained by consumers who sent cease communication letters or hired an attorney who notified the debt collector that the consumer was represented by counsel but these instances do not account for consumers’ successes these cases.

Chart Number  8 compares the outcomes of defendant’s motions for summary judgment where : (1) the consumer told the debt collector to stop calling and the court denied the defendant’s motion for summary judgment (shown in Green Diamonds); (2) the consumer told the debt collector to stop calling and the court granted the defendant’s motion for summary judgment (shown in Red Diamonds); (3) the consumer did not tell the debt collector to stop calling and the court denied the debt collector’s motion for summary judgment (shown in Green Circles); and (4) the consumer did not tell the debt collector to stop calling and the court granted the debt collector’s motion for summary judgment (shown in Red Circles).

CAN A DEBT COLLECTOR CALL CONSUMERS WHO ARE UNABLE TO PAY THEIR DEBT?

Debt collectors naturally expect many consumers to claim that they are unable to pay when, in the debt collector’s point of view, the consumer probably could.   The debt collector’s standards typically do not include adequate money for rent, transportation or food but debt collectors don’t care.   Hardship is not a low bar as many (if not most) people would assume.

Consumers should be very careful about sharing information concerning their family income and assets with the debt collectors, such information is much more likely to make them a target of continuing collection attempts possibly including a collection lawsuit than it is to securing some type of voluntary “hardship” exception from a debt collector unless the debt has a hardship standard under federal or state law such as many federally insured educational loans and/or charity hospital bills.

Many debt collectors are overly skeptical of consumers’ claims that they are unable to pay the debt.  These debt collectors often continue to be overly zealous when they continue to attempt to collect the debt.

Some courts appear to be skeptical of consumers’ claims that they can not afford to pay the debt.  But the courts are often sympathetic to the consumer’s financial situation where the consumer who provided the debt collector  specific information which indicated that the consumer’s inability to pay is permanent and sympathetic,

A consumer told the debt collector “you might as well quit calling.”   Many courts might disregard such a folksy request to stop calling.   Although the debt collector called the consumer 63 times in 118 days, the court denied the defendant’s motion for summary judgment probably because the consumer also informed the debt collector that he was a disabled veteran and was unable to pay the debt.  Nor did it probably help the debt collector that the debt collector also called the consumer’s parents “several” times without the consumer’s permission.   Seifried v. Portfolio Recovery Associates, LLC  (E.D.  OK 2013).

In Strom v. National Enterprise Systems, Inc., the debt collector filed a motion for summary judgment where the evidence proved that the debt collector called the consumer 15 times during a period of 30 days.   Most courts would grant the debt collector’s motion if the call frequency were the only facts supporting the consumer’s claim that the debt collector intended to harass him by calling frequently.  However, the consumer informed the debt collector that he had a brain tumor and told them “you’re causing seizures” and “I’m unable to pay”.  The consumer even authorized the debt collector to call his mother to discuss the account.  But, the debt collector continued to call the consumer.   Strom v. National Enterprise Systems, Inc.  (W.D.  N.Y.  2011).

The United States District Court for the Middle District of Florida denied the debt collector’s motion for summary judgment on the consumer’s call frequency claims where the debt collector called the consumer twice a week for a year and a half although the consumer informed the debt collector that he was sick and unable to pay.  Segal v. NAFS (M.D.  FL   2006).

Consumers who fail to clearly and unconditionally tell the debt collector to “stop calling” or “I’m unable to pay you” are often denied the limited protection that making these statements to the debt collector might otherwise provide.

For example, in Higgs v. Diversified Consultants, Inc., the consumer told the debt collector “I can not pay right now”.  The court granted the debt collector’s motion for summary judgment although the debt collector called the consumer 36 times during an 18 day period.  The court distinguished “can not pay you right now” from “stop”.  Higgs v. Diversified Consultants , Inc.  2014 WL 1374055 (W.D. Mo. 2014).

Sometimes, consumers confuse the rules governing telephone “solicitation” calls with the rules governing debt collection calls.  Debt collection is not a solicitation.  In Shand-Pistilli v. Professional Account Services, Inc., the court granted the debt collector’s motion for summary judgment where the debt collector called 10 times during a 73 day period.   The court distinguished the consumer’s statement “not interested in these solicitation calls” from “stop calling”.  Shand-Pistilli v. Professional Account Services, Inc.  (E.D. PA 2011).

Consumers who hang up the phone without speaking with the debt collector probably has not informed effectively informed the debt collector that the consumer wishes that the debt collector would “stop calling”.  Sledge v. Law Offices of Buffaloe & Associates, PLC (W.D.  Tenn. 2015).

SHOULD I TELL A DEBT COLLECTOR TO “STOP CALLING” MY CELL PHONE ?

It is important that you make your instruction to “stop calling” unconditional and very clear.   If a debt collector is calling your cell phone, telling a debt collector “Stop Calling” will probably revoke any prior express consent to robo-dial your cell phone.  Debt collectors and creditors who violated the TCPA by continuing to rob-dial your cell phone after you tell them to “Stop Calling” may be liable to pay you $ 500 per call and, if the violation is willful, the court may award an additional amount of up to $ 1,000 per call — that’s a total of between $ 500 to $ 1,500 per call.

CHAPTER 6 :  HOW MUCH ARE FDCPA CALL FREQUENCY CLAIMS WORTH?  

 

6 . 0 HOW MUCH ARE FDCPA CALL FREQUENCY CLAIMS WORTH?
6 . 1 FDCPA PROVIDES FOR STATUTORY AND ACTUAL DAMAGES
6 . 2 STATE CONSUMER COLLECTION PRACTICES ACTS
6 . 3 DEFAULT JUDGMENTS IN CASES WHICH INCLUDED FDCPA CALL FREQUENCY CLAIMS
6 . 4 VERDICTS IN CASES WHICH INCLUDED FDCPA CALL FREQUENCY CLAIMS

 

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CHAPTER 6 : HOW MUCH ARE FDCPA CALL FREQUENCY CLAIMS WORTH?

The amount recovered in FDCPA cases which included claims that the debt collector violated the FDCPA by calling too frequently usually also include other — often egregious and intentional — violations of the FDCPA upon which the court’s award for actual damages is based.  The call frequency case survey produced 10 cases which resulted in default judgments against debt collectors and four which concluded at trial.  These cases are discussed below.

FDCPA PROVIDES FOR STATUTORY AND ACTUAL DAMAGES

The Fair Debt Collection Practices Act (“FDCPA”) provides that consumers who prove that the debt collector violated the act are entitled to receive : (1) statutory damages in an amount not to exceed $ 1,000; (2) actual damages; (3) reasonable attorneys’ fees; and (4) costs.

Statutory damages represent amount an amount to be paid to the consumer as compensation for damages which are not readily quantifiable and to deter debt collectors from violating the act.   The FDCPA provides that the “courts shall consider, among the other relevant factors *** the frequency and persistence of noncompliance by the debt collector,  the nature of such noncompliance, and the extent to which such noncompliance was intentional” when determining the appropriate amount of statutory damages.   15 U.S.C.  § 1692k(b)(1) (2018).

The FDCPA also authorizes the courts to award prevailing consumers the amount of their actual damages that they incurred.   15 U.S.C. § 1692k(a)(1) (2018).     In cases where the FDCPA plaintiff claims that plaintiff is entitled to compensation for emotional distress caused by the debt collector’s violations of the FDCPA, the courts will look to the law of the state where the consumer resided when the violations occurred.   State laws are often very restrictive and intentionally preclude emotional damage claims altogether or substantially reduce the amount of any compensation for such injuries.   Moreover, courts in conservative jurisdictions often cherry pick the most restrictive of the state court decisions which further suppresses the value of claims for damages arising from emotional distress.

STATE CONSUMER COLLECTION PRACTICES ACTS 

Many states have enacted consumer collection practices acts which protect consumers (and sometimes third parties such as “Wrong Persons”) from harassment by debt collectors and, in a few states including Florida, violations of the state law by creditors.

For example, the Florida Consumer Collection Practices Act (“FCCPA”) provides that consumers who prevail are entitled to receive (1) actual damages; (2) statutory damages in an amount not to exceed $ 1,000; and (3) in appropriate cases, (3) punitive damages.   Florida Statutes § 559.77 (2018).   The FCCPA provides that “[i]n determining the defendant’s liability for any additional statutory damages, the court shall consider the nature of the defendant’s noncompliance with [Section] 559.72, the frequency and persistence of the noncompliance, and the extent to which the noncompliance was intentional.”   If the defendant is a debt collector, the plaintiff can recover statutory damages pursuant to both the FDCPA and the FCCPA.  Recovering statutory damages under two statutes — in this case the FDCPA and the FCCPA — is often referred to as “stacking” damages.

Some other states’ statutes prohibiting unfair and deceptive trade practices (“UDAP”) are construed broadly enough to include consumer debt collection practices.

DEFAULT JUDGMENTS IN CASES WHICH INCLUDED FDCPA CALL FREQUENCY CLAIMS

The FDCPA call frequency case survey produced 14 cases where the court’s order established the amount of damages that the court ruled a consumer plaintiff was entitled to.   Ten of these opinions arose because the defendant failed to respond to the complaint and the plaintiff was proving up its damages after obtaining an order of default against the defendant debt collector.  Four of the opinions were issued after the court conducted a trial including a “0” award in the one case where the consumer lost at trial.

The total amounts awarded in the cases where the consumer (or Wrong Person) obtained a default judgment against the debt collector are shown in Chart Number 13 (below).

CHART # 13 Shows The Default Judgments Awarded To Consumers And Wrong Persons In FDCPA Call Frequency And Intertwined TCPA Cases

 

The statutory damage awards range in default cases range from a low of $ 250 (1 case), $500 (2 cases), $ 750 (1 case), up to the $ 1,000 maximum (7 cases).

The lowest amount awarded — $ 250 in statutory damages — occurred in Harmon v. Virtuoso Sourcing Group LLC.  In Harmon, the debt collector called 2 to 3 times a day during an unspecified time period.  The debt collector called 20 times over the course of 10 days.  The consumer called the debt collector and asked the debt collector to stop calling and to put any communications in writing.  The consumer also informed the debt collector that he was unable to afford to make any payments on the debt he owed.  The debt collector continued to call the consumer 5 more times during the next 3 days.  Harmon v. Virtuoso Sourcing Group LLC.  (S.D. W. Va. 2012).

A court awarded a Wrong Person $ 500 as statutory damages pursuant to the FDCPA where the debt collector repeatedly called the plaintiff including 17 calls during a 30 day period despite the plaintiff’s request that the debt collector stop calling.   In a typical Wrong Person scenario  the court summarized the facts as follows :

“Plaintiff alleges that, beginning in September 2013 and continuing through December 2013, persons acting on defendant’s behalf repeatedly made telephone calls to plaintiff’s home phone attempting to collect a debt owed by a person named Steven Grazer; that plaintiff explained to the caller on several occasions he is not Steven Grazer and does not know anyone by that name, and repeatedly requested that the calls stop, but the calls persisted ***”

May v. Virtuoso Sourcing Group, Inc. (W.D. N.Y. 2014).

In Hance v. Premier Recovery Group, Inc., the district court awarded the plaintiff consumer $ 500 as statutory damages where the defaulted debt collector called the consumer 20 times a month during 2010 and into the fall of 2011 and called up to 4 times a day.  The debt collector called the consumer at home and at work and continued to call the consumer after the consumer told the debt collector to stop calling.   The debt collector also falsely threatened to sue the consumer.   Hance v. Premier Recovery Group, Inc.  (W.D. N.Y. 2013).

In Mitchell v. Northeast Collection Bureau, the district court awarded the consumer plaintiff $ 500 as statutory damages where the consumer alleged  that :

“… On January 17, 2014, a representative of the defendant called plaintiff’s cellular telephone and attempted to discuss an alleged consumer debt.  Plaintiff advised the representative that she had spoken with another representative four days earlier and was waiting for a copy of her bill.  At that time, the call was terminated.  Approximately 18 minutes later, a different representative called plaintiff’s home telephone.  Approximately 20 minutes later, the first representative called plaintiff on her cell phone.  While she was speaking with him, a different representative again called plaintiff’s home telephone.

Mitchell v. Northeast Collection Bureau (W.D. N.Y. 2015).   That sort of “tag teaming” a consumer is among the call patterns that the Section 1692d(5) is intended to deter.

In Williams-Lester v. Vision Financial Corporation, the court awarded the consumer $ 1,o00 where the evidence showed that the defendant called the consumer 4 times during 1 day.  The evidence also showed that the debt collector called the consumer two to three times a day on average for a period of approximately 5 months although the consumer asked the debt collector to stop calling.  The debt collector called the consumer’s home and cell phone even after she asked the debt collector to contact her only by mail.  Even worse, the debt collector falsely threatened to take legal action against the consumer during one telephone call.  The court reasoned that the “refusal to comply with Williams-Lester’s request to cease calling allows the Court to infer intentional noncompliance” thereby warranting an award of the maximum amount of statutory damages.   Williams-Lester v. Vision Financial Corporation  (E.D. PA. 2017).

In Finney v. MIG Capital Management, Inc., the court awarded the consumer the maximum $ 1,000 for statutory damages where the debt collector called the consumer an average of 3 times a week during an 11 week period after the consumer’s attorney sent the debt collector a notice that he represented the consumer.   Finney v. MIG Capital Management, Inc. (S.D. W.Va. 2014).

In Cook v. First Revenue Assurance, Inc.,  the court awarded the consumer        $ 1,000 as statutory damages where the defaulted debt collector called the consumer “multiple” times per day for a period of almost six months.  The debt collector kept the consumer on hold for 30 minutes and refused the consumer’s request to allow her to speak with a supervisor.   The magistrate judge recommended that the court award the maximum $ 1,000 for statutory damages :

While the plaintiff has not set forth any facts to indicate that the defendant’s behavior was threatening or that an abusive tone of voice was used, plaintiff has established a repeated pattern of intentional abuse. Because of First Resource’s (i) frequent and persistent calls (multiple collection calls daily for nearly six months); (ii) harassing technique of being unresponsive when a call was answered; (iii) failure to permit plaintiff to speak to a supervisor concerning the call; and (iv) a lack of evidence that defendant’s conduct was anything other than intentional, the undersigned concludes that defendant’s violations are egregious.

Cook v. First Revenue Assurance, Inc.  (E.D. N.Y. 2012).

A Colorado consumer received the $ 2,000 in statutory damages representing the maximum amounts available under the FDCPA and the Colorado Fair Debt Collection Practices Act (“CFDCPA”).  Colo. Rev. Stat.  § 12-14-113(1)(b)(1).   In Peterson-Hooks v. First Integral Recovery, LLC, the debt collector called the consumer  up to 5 times a day and up to 20 times a month after she sent the debt collector a letter requesting that the debt collector cease communication.  The debt collector falsely represented that they were the U.S. Internal Revenue Service (“I.R.S.”) and accused the consumer of committing a crime including during conversations with the consumer’s co-workers.  Peterson-Hooks v. First Integral Recovery, LLC (D. Colo. 2013).

In Johnson v. Weinstein, Weinberg & Fox, LLC the defaulted debt collector called the consumer 2 to 4 times a day during an 8 day period but the content of the calls were “over the top” and included telephone conversations with the consumer’s family and the debt collector continued to call the consumer for 3 days after the debt collector received the consumer’s written request that the debt collector cease all communication.  The evidence showed that :

“During these calls, defendant Tillison threatened to press charges of fraud against plaintiff. ***  Plaintiff further alleges that defendant Tillison contacted plaintiff’s employer, plaintiff’s mother, plaintiff’s father, and one of plaintiff’s friends as part of his collection activities. ***  When speaking with these individuals, defendant threatened that plaintiff “could be facing jail time,” the loss of her phlebotomy licensure, and the loss of her job for failure to pay the alleged debt. *** On or about July 21, 2014, plaintiff requested that defendant cease contacting plaintiff, her family, and her friends. *** Nevertheless, defendant continued to contact plaintiff for two more days. *** Plaintiff alleges that she “suffered undue stress, mental anguish and embarrassment in front of her family and friends” as a result of defendants’ conduct.

Although the consumer requested that the court award the consumer $ 50,000 for actual damages arising from the debt collector’s harassing telephone calls, the court granted the consumer $ 3,500 reasoning that :

“Plaintiff’s injuries were caused by the two to four daily telephone calls from defendants over a roughly eight day period in July 2014. *** In her sworn affidavit, plaintiff states that she is a single mother of three children, whom she supports by her work as a phlebotomist and with food stamps. ***  Defendant’s conduct caused plaintiff to be “anxious, nervous, afraid, worried [and] terrified,” as defendant’s threats of incarceration or loss of employment would, if realized, have left plaintiff and her children destitute. *** As the alleged debt was related to a bail bond that plaintiff borrowed for a family member, defendant’s threat of incarceration “seemed very real.” *** Defendants’ threats caused plaintiff to have difficulty sleeping and to be emotionally distressed. *** Moreover, plaintiff was “embarrass[ed] and humiliate[ed]” by the calls made by defendants to plaintiff’s friends and family.  ***

While defendants’ conduct was no doubt offensive and capable of causing emotional distress, there is no evidence that plaintiff received medical treatment as a result of defendants’ conduct. Moreover, there is no evidence of any ongoing, adverse effects of defendants’ conduct. Thus, in light of the limited duration of the emotional distress sustained by plaintiff, I recommend an award of $3,500.00 in actual damages.”

Johnson v. Weinstein, Weinberg & Fox, LLC  (D. MD. 2016).  The court also awarded the consumer a total of  $ 750 as statutory damages under the FDCPA and the Maryland consumer collection practices act.

A court awarded a consumer who was on active duty with the U.S. Navy damages totaling $ 13,500 consisting of : (1) $ 1,000 statutory damages pursuant to the FDCPA; (2) $ 5,000 for actual damages; and (3) $ 7,500 for punitive damages in a especially severe and persistent series of collection calls which occurred after the consumer faxed proof that he had settled the debt with a previous collector who acknowledged the settlement for a compromise amount in a follow-up letter.

After Chiverton faxed the debt collector the proof that he’d paid off the debt for a compromised amount the debt collector continued to harass him including acts which attempted to exploit his sensitive position in the U.S. Navy :

In October 1999, Chiverton began receiving calls from “Steven Deer,” the defendant’s representative. Chiverton told Deer that he was not permitted to receive personal calls at work and asked Deer not to call him there. Chiverton again explained that he had satisfied the debt and that he previously had supplied the defendant with proof. Deer, in response, called Chiverton a “liar.” Deer added that because Chiverton was lying, he was going to report the debt to credit reporting agencies.

In early November, Deer called Chiverton at work several more times. Chiverton repeatedly informed Deer both that he was prohibited from receiving personal calls at work and that he no longer owed the debt. Deer asked to speak with Chiverton’s supervisor. Chiverton insisted that neither Deer nor any other representative of the defendant speak to anyone at his place of work.

Chiverton points to a particular incident in November. On November 9, 1999, Deer called Chiverton at work and demanded payment. Deer told Chiverton that he was “not a regular collection agent. I can call [Page 100] until you pay. I can call you at work as much as I want.” Chiverton refused to pay and hung up the phone. Deer immediately called Chiverton back. Chiverton again hung up the phone. Not more than a minute later, Deer called for the third time and Chiverton hung up the phone. Within a minute, Deer called back for the fourth time. Upon hearing Deer’s voice, Chiverton hung up the phone. Deer immediately called Chiverton back for the fifth time.

Later that month, despite the plaintiffs admonition, Deer called Chiverton’s place of employment and spoke with Chiverton’s supervisor, Major Burnside, about the debt he alleged Chiverton owed

The court summarized the consumer’s damages as :

“The plaintiff testified at the hearing as to his anxiety, stress and frustration as a result of the defendant’s conduct. He was unnerved and irritated by the defendant’s repeated calls. Chiverton was worried he would lose his job or not be eligible for the promotion for which he was waiting. He was upset by the defendant’s threats to report him to credit reporting agencies and to speak to his supervisor. Ultimately, Chiverton had to disclose the situation to his boss as well as an investigator, which was uncomfortable and embarrassing. The court recommends that actual damages in the amount of $5000 be awarded.”

The court also awarded the consumer punitive damages  against the defaulted debt collector pursuant to the Connecticut Unfair Trade Practices Act (“CUPTA”) codified at Conn. Gen. Stat.  §  42-110g(a).   The court reasoned :

The defendant’s actions in repeatedly calling the plaintiff at work, threatening to speak to his supervisor and failing to inform him of his legal rights with regard to disputing the debt were recklessly indifferent to the plaintiff’s rights. The court finds that punitive damages are appropriate and recommends that they be awarded in the amount of $7500.”

Chiverton v. Federal Financial Group, Inc., 399 F.Supp.2d 96 (D. Conn. 2005).

In a companion case to Chiverton, the court also awarded Rose Collier — a senior citizen who lived on Social Security — amounts identical to those awarded to Mr. Chiverton.  The court awarded Ms. Collier : (1) $ 1,00o for statutory damages pursuant to the FDCP; (2 ) $ 5,000 for actual damages pursuant to the FDCPA; and (3) $ 7,500 for punitive damages pursuant to the CUTPA.

In Collier, the defendant debt collector called the consumer at least 20 times during a 3 month period.  As in Chiverton, the severity of the conduct was not in the frequency or pattern of the calls but in the debt collector’s statements to Ms. Collier.  The court summarized the facts in Collier as follows :

“In November 1999, Collier received a call from “Ms. Thomas” (“Thomas”), the defendant’s representative. Thomas informed Collier that she was attempting to collect a debt Collier owed. Collier, who was in her seventies, advised Thomas that she was a senior citizen on a very limited income and was not able to pay the debt. Collier requested that Thomas not contact her further concerning the matter. As soon as Collier hung up the phone, Thomas called again, demanding payment. Collier told Thomas not to contact her and hung up the phone. Thomas immediately called back. This time, Thomas told Collier that Collier had to speak to Thomas’s supervisor. A man identifying himself as “Steven Deer” (“Deer”) got on the phone. In a hostile and aggressive tone, Deer insisted that Collier pay the defendant the monies she owed. Collier again explained that she was a senior citizen on a limited income and not able to repay the loan. Collier asked that Deer not contact her again. Deer asked Collier if she was “old and senile.” He accused her of “just sitting on [her] behind doing nothing, collecting a social security check.”

Notwithstanding Collier’s request that he not call her again, Deer called Collier at least twenty times between November 1999 and January 2000. In addition to speaking with the plaintiff, Deer, without the plaintiff’s consent, spoke to Collier’s grandson and daughter about Collier’s financial situation and the debt he sought to collect. Deer was rude and abusive during these phone conversations. Deer told Collier that she could be arrested for not paying the debt and that she could expect a police officer at her door at any time. The sole correspondence the defendant sent to Collier was a letter dated November 29, 1999 demanding payment within ten days. The plaintiff averred in her affidavit that the defendant’s conduct caused her to suffer emotional distress, embarrassment, anxiety and shame.

Chiverton and Collier v. Federal Financial Group, Inc., 399 F.Supp.2d 96 (D. Conn. 2005).   Ms. Collier filed an affidavit under penalty of perjury stating that the defendant’s conduct caused her to suffer embarrassment, anxiety and shame.

The worst series of FDCPA violations arose when Lenahan Law Office attempted to collect a VISA credit card account from a New Mexico consumer who even offered to set up a reasonable payment schedule.   The Lenahan Office is out of business because of the cumulative effects of its outrageous violations of the FDCPA.   Lenahan Law Office contacted the consumer at work 10 times during one day including instances where the debt collector hung up on the consumer and immediately called back threatening to foreclose on her home!  The debt collector also faxed her employer a request for her “contact information” although the debt collector obviously knew where she worked.  The consumer’s employer counseled her that she could not receive debt collection calls because it was effecting her performance.  The situation deteriorated and persisted long enough that her co-workers became aware of the problem.  Lenahan Law Office even contacted the consumer’s former spouse.   In typical Lenahan Law Office doesn’t care fashion, the debt collector continued to call the consumer even after it received a notice of representation via facsimile from the consumer’s lawyer.

The effect on the consumer and her workplace performance was substantial :

“32.  As a result of Defendants’ actions, Plaintiff Garbin suffered actual damages, including aggravation, inconvenience, lost time, anxiety, humiliation, fear, and upset. In addition, Plaintiff Garbin severely was intimidated, harassed, abused, embarrassed and terrified by the extreme and outrageous acts of Defendants. ***

33. Plaintiff Garbin’s demeanor changed drastically as a result of Defendants’ conduct. Plaintiff Garbin normally is friendly, outgoing, and upbeat at work. As a result of Defendants’ conduct, Plaintiff Garbin was drained and depressed, had trouble finishing her work, and could not function at work. Plaintiff Garbin also cried at work on numerous occasions. ***

34. At least thirty people in Plaintiff Garbin’s department knew of one or more of Defendants’ debt collection actions toward Plaintiff Garbin. ***

35. Plaintiff Garbin suffered these actual damages constantly over a period of three weeks.  **** “

Garbin v. J. Daniel Lenahan (D. N.M.  2004).   The court found that the defendant’s conduct was intentional, repeated, and severe.  The court awarded Ms. Garbin $ 1,000 for statutory damages and $ 20,000 for actual damages pursuant to the FDCPA.

A Michigan federal court awarded a Wrong Person $ 1,000 in statutory damages and $ 500 for actual damages pursuant to the FDCPA and an additional $ 11,000 arising from 22 calls made to her cell phone in violation of the TCPA — or a total of $ 12,500.

Although the consumer requested that the court award $ 5,000 as compensatory (actual) damages, the court awarded her $ 500 award based upon the complaint and her affidavit.  The consumer’s complaint alleged :

“[a]s a direct consequence of Defendant’s acts, practices and conduct, Plaintiff suffered and continues to suffer from humiliation, anger, anxiety, emotional distress, fear, frustration and embarrassment.”

In her affidavit, the consumer swore :

“[a]s a result of RPM’s repeated phone calls to me after I asked it to cease calling me, I suffered and continue to suffer from anger, anxiety, and emotional distress.”

Ayers v. Receivables Performance Management, L.L.C. (E.D. MI 2016).    Many courts might not grant any actual damages based upon such generic conclusions as the sole support of an award of actual damages.

Fortunately for the consumer, the court also ruled that the debt collector called her cell phone 22 times without her consent.  As a “Wrong Person”, the court had little trouble finding that the consumer never consented to receiving calls from the creditor or the debt collector on her cell phone.

VERDICTS IN CASES WHICH INCLUDED FDCPA CALL FREQUENCY CLAIMS

The case survey produced four cases where consumers went to trial where the consumer’s claims included allegations that the debt collector called too frequently thereby violating  § 1692d(5).  The outcome of the four trials where the plaintiff consumer pursued FDCPA call frequency claims are shown in Chart Number 14 (below).

The Green Area On The Right Hand Side Of Chart # 14 Shows The $ 19,5000 Awarded To A Consumer As Statutory Damages For 39 Violations Of The TCPA.

A consumer lost at trial where the evidence showed that the debt collector ‘s call records showed that the debt collector called 5 times during a 30 day period and the consumer did not appear to have any call logs or other documents to counter the debt collector’s business records.  The consumer was also unsuccessful on his claim that the debt collector inflated the claim from $ 180 to over $ 600 because the debt collector explained how it calculated the interest on the 14 year old account.   Bennett v. Arrow Financial Services, LLC (N.D.  Ill. 2004).

A consumer lost on his call frequency (§ 1692d(5)) claims where the consumer proved that the debt collector called 70 times during an undisclosed time period. The

The FDCPA case survey identified four cases where the consumer’s call frequency claims went to trial. In two of these cases, the consumer lost on the call frequency claims. In one of the “losses” , however, the jury found in favor of the consumer on a related debt harassment claim.

jury also rejected the consumer’s claim that the debt collector called him at his workplace despite knowing that the consumer’s employer prohibited him from receiving such calls.  Fortunately for the consumer, the jury found for the consumer on his claim under the FDCPA’s “catch-all” harassment provision set forth at 15 U.S.C.      § 1692d based upon, among other things, calls from the debt collector between 9:00 p.m. and 8:00 a.m.   Penney v. Williams & Fudge, Inc.  (M.D.  Fla. 2012).  The jury awarded the consumer $ 500 as statutory damages for the debt collector’s violation of § 1692d.

In 1981, the consumer prevailed on a bench trial consumer her FDCPA call frequency claims where the consumer (or members of her family) spoke with the debt collector 14 times during a 23 day period.  The evidence showed that the debt collector called back a few minutes after the consumer terminated a heated conversation by hanging up on the debt collector.   The debt collector called after 9:00 p.m., falsely threatened garnishment and told belittled the consumer by saying, among other things, that she should not have children if she could not afford them.  Bingham v. Collection Bureau, Inc., 505 F.Supp. 864 (D. N.D. 1981).   Following the bench trial, the court issued a detailed opinion which reviewed the telephone conversations.   An expert witness testified on behalf of the consumer on the issue of her damages.  The court summarized the consumer’s evidence of her damages as follows :

“The psychologist who testified as to damages based his findings on two hours of observation, including some psychological testing, which occurred a substantial interval after the collection efforts stopped.

He concluded the period of the damage was about a year, that during the year she was no longer childlike in her happiness, that she had lost her interest in housework, that she was not paranoid, but distrustful of telephones. That her sleep was disturbed, she had nightmares, headaches, a sensitive stomach, and was prone to cry. He accepted her statements at face value and despite her obvious physical problems, concluded without further investigation that all her physical problems were psychosomatic, and caused by the wrongful acts of the telephone collectors. The proof of that claim is much too weak to accept.

Peggy herself testified that after the first call she “cried and cried and cried and cried.” Her husband said she was still crying when he came home at noon on June 11, 1979.

But the impression that Peggy the witness communicated was that her crying was an habitual response to any difficult situation, and that it continued interminably until something occurred to divert her attention. Nor did the witness demonstrate any excessive depression or unstable personality traits during the several days of trial. She gave instead the impression of one who had always been over protected and had learned how to demand attention and protection from those around her.

I conclude that she suffered no permanent ill effects from the experience of the calls, and that most of her crying was habitual or cosmetic. However, she is of the group to be protected and she has suffered injury.

Bingham v. Collection Bureau, Inc.,  505 F.Supp. at 875.   Despite finding much of the plaintiff’s evidence of the telephone conversations “unreliable” and determining that “most of her crying was habitual or cosmetic”, the court found in the consumer’s favor.    The court awarded the consumer and her husband : (1) $ 400 for statutory damages pursuant; (2) $ 1,000 to the consumer for her actual damages; and (3) $ 100 to the consumer’s husband for loss of consortium.  Bingham v. Collection Bureau, Inc.,  505 F.Supp. at 876.

A federal court was even more skeptical of a Texas consumer following a jury trial where the consumer proved that the debt collector called her 134 times during a 40 day period attempting to collect an educational loan. The jury found in favor of the consumer on her FDCPA call frequency claim and awarded her $ 300 for her statutory damages.  The jury verdict concerning the consumer’s claim under the TCPA were contradictory.

The debt collector filed a motion to vacate the verdict on the FDCPA call frequency claim arguing that the total number of calls was insufficient and that the consumer must present other evidence to support any finding that the debt collector intended to harass the consumer by calling frequently.   The court explained that it did not need to address whether “Other Factors” are required to prove a FDCPA call frequency violation because the evidence at trial would meet such a requirement (if any) anyway :

“CCS placed a call to one of Adamcik’s phones even as she was on the other phone, speaking with a CCS representative. Also, although CCS admitted its policy is to institute a “Wait Date,” ceasing communications to a debtor for ten days upon request, CCS resumed calling Adamcik a mere two days after Adamcik requested the calls stop. *** Furthermore, a CCS representative made an ambiguous statement to Adamcik about when or how the frequent calls could be stopped, from which the jury could have inferred CCS was representing it had no control over when and how often calls were placed to Adamcik. In other words, viewed in a light most favorable to Adamcik, the jury could have inferred a threat by the CCS representative that a high volume of calls would continue until CCS received payment, and CCS otherwise could not moderate the call frequency.”

Adamcik v. Credit Control Services, Inc.,  832 F.Supp.2d 744, 747 (W.D. Tex. 2011).   The $ 300 jury verdict also entitled the consumer to receive her reasonable attorney’s fees and costs incurred in pursuing her FDCPA claims.

The jury also found that the debt collector did NOT violate the TCPA but also found that :

“… Adamcik had revoked her consent to receive automatically dialed and artificial or prerecorded voice system to her cellular phone, and found further CCS had placed thirty-nine automatically dialed calls to her cellular phone after consent was revoked.”

Adamcik v. Credit Control Services, Inc. 832 F.Supp.2d 744, 746 (W.D. Tex. 2011).  The quoted text establishes the basic elements of a TCPA violation arising from calls to a cell phone so the court ruled that, based upon the jury’s findings, the debt collector violated the TCPA 39 times.  This left the court unhappy but prepared to carry out its duty.

“… [T]he Court holds the jury’s finding of revocation cannot be set aside. *** Therefore, the Court is compelled to award Adamcik $500 for each of the thirty-nine violations found by the jury, for a total of $19,500.

The Court fully believes this is an undeserved windfall to Adamcik, which is not merited due to her scarcely concealed bad faith actions, and is also out of all proportion to whatever minimal harm she may have suffered due to CCS’s conduct. Nevertheless, Congress has apparently mandated this amount of damage—at least $500 per violation, and no less—regardless of the underlying behavior of the consumer, or other equitable considerations. *** Strangely, and frustratingly, Congress has given courts discretion to award less than $500 per violation of the telephone solicitation subsection of the TCPA, § 227(c), but required a $500 minimum for autodialer violations under § 227(b).  ***  It is difficult to understand why Congress treated these two closely related causes of action so differently, but the Court must apply the statute as written. Rather, the only discretion Congress has afforded the Court in this case is whether to increase damages, …”

Adamcik v. Credit Control Services, Inc.,  832 F.Supp.2d 744, 754 (W.D. Tex. 2011).   Adamcik demonstrates the importance of documenting and pursuing TCPA claims in addition to FDCPA call frequency claims when the debt collector is calling the consumer’s cell phone.

 

FLORIDA CONSUMER RIGHTS ATTORNEY DONALD E. PETERSEN

Donald E. Petersen represents consumers in individual and class action lawsuits.   Mr. Petersen has represented cell phone users in TCPA cases for over a decade.   Often, the company that violates the TCPA is an original creditor or a debt collector.  Sometimes, the caller is asking to speak with someone else but, usually the account belonged to the person who receives the calls.   Mr. Petersen

Donald E. Petersen – Florida Consumer Rights Lawyer

has almost 20 years experience representing consumers in Telephone Consumer Protection Act, Fair Debt Collection Practices Act,  Fair Credit Reporting Act and violations of the Bankruptcy Code’s discharge provisions and can apply this experience to assist his clients against inaccurate credit reporting, stop illegal dunning letters, as well as help combat the cell phone harassment.  Mr. Petersen represents consumers in individual and class action cases.  In 1988, Mr. Petersen was admitted to practice in state trial courts throughout the State of Florida.  Mr. Petersen is also admitted to practice in the United States District Courts for the Middle District of Florida, Northern District of Florida, and the Southern District of Florida.

CALL DONALD E. PETERSEN AT 407 – 648 – 9050

Mr. Petersen provides free initial consultations concerning Telephone Consumer Protection Act and Fair Debt Collection Practices Act cases.  You can afford an experienced lawyer.

FREE CASE EVALUATION

(C)  Donald E. Petersen 2018

 

 

 

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Santander Ordered to Pay $ 571,000 for 1,142 TCPA Violations

Santander Consumer USA, Inc. called consumer Heather Nelson’s cellular telephone one thousand twenty-six (1,026) times and left pre-recorded messages an additional one hundred sixteen (116) times during a one year period while attempting to collect a consumer debt arising from loans secured by two motor vehicles — a van and a truck. The Court entered judgment against Santander in the amount of five hundred and seventy-one thousand dollars ($ 571,000) for the one thousand one hundred forty-two (1,142) violations of the Telephone Consumer Protection Act (“TCPA”).

The Telephone Consumer Protection Act (“TCPA”) prohibits calls to cellular telephones where the caller uses an automatic dialing system and/or leaves pre-recorded messages unless the recipient provided the caller prior express consent. The Telephone Consumer Protection Act (“TCPA”), 15 U.S.C. Section 227(b)(1)(A)(iii) makes it :

“unlawful for any person … to make any call (other than a call … made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service … or any service for which the called party is charged for the call.”

TCPA, 15 U.S.C. Section 227(b)(1)(A)(iii). If you are not already familiar with the fundamentals of the TCPA and how it relates to debt collection calls, click here for information about your situation.

    FACTUAL BACKGROUND

Santander purchased HSBC Auto Credit including HSBC’s loan portfolios which included Ms. Nelson’s accounts. Unfortunately for Santander, Ms. Nelson had never provided her cellular telephone number in her loan application with HSBC Auto Credit. Nor is there any indication that Ms. Nelson ever provided her cellular telephone number to HSBC Auto Credit or Santander Consumer USA, Inc.

The parties disputed whether Ms. Nelson verbally told Santander not to call her cell phone number. Fortunately for Ms. Nelson, on April 13, 2010, Ms. Nelson wrote a letter to Santander stating:

“You may not at anytime contact me at any work number listed. This includes [four telephone numbers including Ms. Nelson’s cellular telephone number]. Any conversations need to be addressed in writing.”

Nelson v. Santander Consumer  USA, Inc.,  931 F.Supp.2d. 919 (W.D. WI 2013).  Santander continued to call Ms. Nelson on her cell phone after they received her letter.

On May 29, 2010, Santander repossessed Ms. Nelson’s truck. Between March, 2010, and April, 2011, Santander called Ms. Nelson’s cell phone one thousand twenty-six (1,026) times. One hundred and sixteen (116) of these calls also resulted in prerecorded messages left on Ms. Nelson’s cell phone voicemail.

Santander Consumer USA, Inc. used a telephone system manufactured by Aspect. Aspect’s telephony system uses computer software to route and place inbound and outbound calls. The Court found that “Aspect has the capacity to (1) store telephone numbers and then call them; and (2) perform ‘predictive dialing’ and ‘preview dialing’.” (emphasis added).

Aspect’s predictive dialing system schedules the dialing of phone numbers using an alogrithm to predict when a collection employee will be available to receive the next completed call. To facilitate that method of dialing, Santander created lists of customer telephone numbers to be called on a particular day. In preview dialing, an employee chooses a telephone number by clicking on a computer screen and the system calls it.”

The Court also found that Santander’s “employees never called plaintiff by pressing numbers on a keypad.” This lack of human intervention is the hallmark of automatic dialing systems.

MS. NELSON’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Ms. Nelson filed a motion for partial summary judgment. Ms. Nelson’s motion requested that the Court enter a judgment against Santander for Santander’s violations of the TCPA based upon the evidence (documents, depositions, affidavits, etc.) already in the record. Summary judgment allows the Court to rule upon the factual disputes without the parties proceeding to trial where there are not any disputed issues of fact.

Santander argued that the Court should deny Ms. Nelson’s motion for summary judgment because there were disputed issues of fact : (1) whether Ms. Nelson qualifies as a “called party”; (2) whether Ms. Nelson gave Santander consent to call her; and (3) whether Santander uses an “automatic telephone dialing system”. Santander also disputed Ms. Nelson’s entitlement to enhanced statutory damages.

“CALLED PARTY”

Santander argued that Ms. Nelson was not a “called party” within the meaning of the TCPA, Section 227. The cellular phone account was solely in Ms. Nelson’s husband’s name although Ms. Nelson was the person who used the cell phone which was assigned the number that Santander called. According to Santander, Ms. Nelson “has not shown that she has ‘standing’ to sue violation of Section 227(b)(1)(A)(iii). The Court commented that Santander’s argument was “imaginative but not persuassive.”

The Court distinguished between Santander’s argument that Ms. Nelson lacked standing and the question whether Ms. Nelson had a cause of action (basis for suing) under the TCPA and ruled in Ms. Nelson’s favor on both questions.

The Court observed that Ms. Nelson had standing if she was injured by Santander’s conduct and her injury can be redressed by winning her lawsuit. The Court ruled that there was “no question” whether Ms. Nelson had standing because she alleged that Santander called her cell phone over 1,000 times and seeks statutory damages for each of the calls.

The Court issued an insightful opinion into the more debatable question — whether Ms. Nelson had the right to sue Santander for violations of the TCPA.

Santander relied upon the opinion in Soppet v. Enhanced Recovery Co., LLC. to support its argument that the phrase “called party’ as used in Section 227(b)(1) means the person subscribing to the called number at the time the call is made.” Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th Cir. 2012). Basically, Santander argued that Ms. Nelson was not the “called party” because the cell phone account was in her husband’s name, not hers.

The Court distinguished Soppet as a “red herring” because the issue in Soppet was who had the authority to give consent to call Ms. Soppet’s cellular telephone number. The issue in Soppet was not about whether plaintiff could sue for violations of the TCPA (Section 227).

In Soppet, a cell phone customer gave the creditor permission to call the cell phone number at issue in the Soppet case. Subsequently, the first cell phone customer’s service became disconnected. Eventually, the cell phone number at issue was “recycled” and reassigned to Soppet. In Soppet, Enhanced Recovery argued that the “called party” be read to mean the person that Enhanced Recovery intended to call so that the first cell phone customer’s consent remained valid long after the cell phone number was reassigned to Soppet.

In Nelson v. Santander, the Court implicitly rejected some of the dicta in Soppet which could be read to suggest that a person who receives calls unsolicited calls on his or her cellular telephone may somehow be barred from suing the caller because someone else’s name appears on the account associated with the cell phone number. The Nelson Court relied upon the plain language of the TCPA. The Court ruled :

“Noting in [Section] 227(b)(1) limits the protections of the statute to the owner of the phone. Rather, that section prohibits the use of automatic dialing ‘to any telephone number assigned to a … cellular telephone service’ regardless who answers or receives the call. Further, 47 U.S.C. [Section] 227(b)(3), which creates a private right of action for violations of the statute, does not limit lawsuits to those brought by “subscribers’ or ‘called parties,’ but applies to ‘a person or entity’. ***”

    CONSENT

Santander also argued that there were questions of fact whether Ms. Nelson consented to Santander (or Santander’s predecessor HSBC) calling her cell phone. For a detailed discussion about whether debt collectors can call your cell phone, please click on the highlighted portion of this sentence.

The Court ruled that the issue whether Ms. Nelson consented to calls on her cellular phone constitutes an affirmative defense. The Federal Communications Commission has stated that :

“the creditor should be responsible for demonstrating that the consumer provided express consent’ because the creditor (e.g., Santander) is “in the best position to have records kept in the usual course of business showing such consent.”

In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 565 Parag. 10 (Jan. 4, 2008). More importantly to the Nelson Court, the district courts in the Seventh Circuit, have uniformly adopted the position that the issue whether the person who received the calls consented to the calls is an affirmative defense.

Unfortunately for Santander, Santander did not attempt to raise this affirmative defense until it filed a motion to amend its answer to Ms. Nelson’s complaint one month after Ms. Nelson filed her motion for summary judgment. The Court held that Santander had waived the defense.

In any event, the Court found that Ms. Nelson sent a letter dated April 13, 2010, to Santander requesting that Santander stop calling her and she listed her telephone numbers including her cellular telephone number.

AUTOMATIC TELEPHONE DIALING SYSTEM (“ATDS”) 

The Federal Communications Commission (“FCC”) has interpreted the term “automatic telephone dialing system” to include “predictive dialers” which the FCC defines as :

“equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.”

In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,  18 F.C.C.R. 14014, 14091-93 (July 3, 2003) (Court’s emphasis). Santander argued that the Nelson Court should disregard the FCC’s interpretation of “automatic telephone dialing systems” because Congress did not grant the FCC authority to implement Section 227 of the TCPA and because the FCC’s interpretation is inconsistent with the statutory language.

The Nelson Court criticized Santander’s argument as “comes perilously close to violating Fed. R. Civ. Pro. 11.” The Court reminded Santander that the United States Circuit Court of Appeals for the Seventh Circuit has ruled that “the Hobbs Act, reserves to the courts of appeals [on direct review] the power ‘to enjoin, set aside, suspend (in whole or in part), or to determine the validity of’ all final FCC orders.” Citing CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 446, 449 n.5 (7th Cir., 2010). The CE Design court expressly ruled that “a litigant can’t avoid the Hobbs Act’s jurisdictional bar simply by accusing an agency of acting outside its authority.” Id at 449.

The Nelson Court noted that Defendant cited Griffith for its definition of automatic dialing equipment under Section 227(a)(1) and reminded defendant’s counsel that “they have a duty under Rule 11 to refrain from making a legal contention unless it is ‘warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law’ and a duty under SCR 20:3:30 to “disclose to the [court] authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client’.”

The Court addressed Defendant’s remaining arguments which Defendant raised to attempt to negate the evidence introduced by Ms. Nelson to support her argument that Santander used “automatic dialing equipment” to place the calls at issue in her case.

Ms. Nelson relied upon the testimony of Santander’s Senior Vice President of Servicing, Mr. Wayne Nightengale. Santander argued that Mr. Nightengale “is neither a representative of Aspect [the company that created the telephone system] nor is he a telephone communications expert” and Ms. Nelson’s counsel did not ask Mr. Nightengale any questions establishing the foundation for the testimony. Usually, the witness must have direct personal knowledge as to how the equipment functioned or it is inadmissible hearsay.

In this case, Ms. Nelson’s counsel served Santander with a Notice of Deposition pursuant to Fed. R. Civ. Pro. 30(b)(6) which allows an opposing party to depose a “corporate representative” who testifies on behalf of the corporation. The corporation being deposed (in this case Santander) gets to chose the person who will testify on the corporation’s behalf (in this case Ms. Nightengale.)

The corporation’s designation of that person to testify waives any objection to lack of foundation that the witness testifies to.   Square D. Co. v. Breakers Unlimited, Inc., 2009 WL 1661582, *1-2 (S.D. Ind. 2009); Bowoto v. Chevron Corp., 2006 WL 2455740, *1 (N.D. Cla. 2006).

Finally, the Court rejected Santander’s argument that Ms. Nelson failed to show which calls it placed to her employing predictive dialing and which calls Santander made through “preview dialing”. (“Preview dialing” allows an employee rather than a computer to choose which number to dial.) The Court held that :

“Regardless whether preview dialing falls outside the scope of [Section] 227(a)(1) and the FCC’s order, I agree with the plaintiff that defendant’s argument is another red herring. Under both the statute and the order, the question is not how the defendant made a particular call, but whether the system it used had the ‘capacity’ to make automated calls.”

Nelson, pg. 18-19, citing Satterfield v. Simon & Schuster, Inc, 569 F.3d 946, 952 (9th Cir. 2009) (“[A] system need not actually store, produce or randomly call or sequentially generated numbers, it need only have the capacity to do it.”)

If you are receiving robo-calls on your cell phone and want to learn more about the basics of how the TCPA protects cell phones from unwelcome robo-dialed calls and pre-recorded messages and even SMS texts, please click on the Big Blue Box immediately below.

ARE YOU RECEIVING ROBODIALLED CALLS, PRERECORDED VOICEMAILS, OR TEXT MESSAGES ON YOUR CELL PHONE?

TIP OF THE HAT TO PLAINTIFF AND HER COUNSEL

As Jimmy Cliff wrote, “The Bigger They Come, The Harder They Fall”. Congratulations to Ms. Nelson and her lawyers for an excellent decision and for establishing additional precedence which helps to combat cell phone harassment.

    ARE DEBT COLLECTORS BURNING YOUR CELL PHONE?
    HAD ENOUGH?

Donald E. Petersen, Orlando Florida Consumer Rights Lawyer

If you are receiving calls from collection agencies on your cell phone, you may contact me by calling me or by completing the contact form or Free Case Evaluation forms on this page.

If you are a Florida resident, you are also welcome to call my office at (407) 648 – 9050. I will contact you to discuss your situation and how I may be able to help you.

FREE CASE EVALUATION

(C) 2013 – 2018  Donald E. Petersen
All rights reserved.

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What Is The Statute Of Limitations To File A TCPA Lawsuit?

WHAT IS THE STATUTE OF LIMITATIONS FOR A TCPA LAWSUIT?

A statute of limitations is the period of time from the date of the violation to the deadline for filing a lawsuit or the lawsuit will be time barred. “Time barred” is another way of saying that the statute of limitations has expired.

The TCPA does not provide an express statute of limitations so the four year federal “catch all” limitations period of four (4) years governs TCPA claims.     28 U.S.C. Section 1658(a) (2017).  If the TCPA case is filed in federal court, the limitations period may be tolled during the periods when a prior TCPA class action was pending if the plaintiff was a member of the prior class or potential class.

DOES THE TCPA SPECIFY A STATUTE OF LIMITATIONS PERIOD ?

The TCPA does not specify a statute of limitations.   When a federal law does not provide for a statute of limitations, the courts often have to decide whether to apply the federal or the state statutes of limitations.

For many years, courts applied the statute of limitations of the state where the case was filed. This practice arose because the TCPA provides “[a] person or entity may, if otherwise permitted by the law or rules of court of a State, bring an action in an appropriate court of that State ***.” 47 U.S.C. Section 227(b)(3).

The United States Court of Appeals for the Seventh Circuit applied the federal four year catch all limitations period in Sawyer v. Atlas Heating And Sheet Metal Works, Inc. without much discussion.   Sawyer v. Atlas Heating And Sheet Metal Works, Inc., 642 F.3d 560 561 (7th Cir. May 26, 2011).   Subsequent appellate decisions greatly strengthen the authority for the Sawyer court’s statutory interpretation.

On January 18, 2012, the United States Supreme Court issued its decision in Mimms v. Arrow Financial Services, LLC, which held that defendants can remove (i.e., transfer) a TCPA case from state court to a federal trial court regardless of the amount in controversy and that the federal court has jurisdiction to hear the case. Mimms v. Arrow Fin. Servs, LLC, 565 U.S. 740, 132 S.Ct. 740, 181 L. Ed. 2D 88 (SCOTUS 2012). Although the Supreme Court’s decision in Mimms did not address the applicable statute of limitations, it undercut the grounds for borrowing the state’s statutes of limitations. After Mimms, federal courts apply the four-year federal “catch all” statute of limitations period set forth in the United States Code.

The United States Court of Appeals for the Second Circuit relied on the logic in Mimms to apply the federal four year catch all limitations period in Giovanniello v. ALM Media, 726 F.3d 106 (2nd Cir. Aug. 8, 2013) and in Bank v. Independence Energy, 726 F.3d 760 (2nd Cir. Dec. 3,2013).

The federal “catch all” statute of limitations provides that :

except as otherwise provided by law, a civil action under an Act of Congress enacted after the date of enactment of this section may not be commenced later than 4 years after the cause of action accrues.”

28 U.S.C. Section 1658(a) (2017).     Congress enacted this statute of limitations on December 1, 1990,  a full year before Congress enacted the TCPA on December 20, 1991, so this statute of limitations applies to TCPA claims.

In cases heard in the federal courts in the Eleventh Circuit — Florida, Georgia and Alabama — the courts are required to apply the four  year catch all  statute of limitations.   See Coniglio v. Bank of America, N.A., 638 F. App’x  972, 974 n. 1 (2016) (“The TCPA has a four year statute of limitations”.)

CAN I FILE A TCPA CLASS ACTION MORE THAN FOUR YEARS AFTER THE CALLER VIOLATED THE TCPA?

The “catch all” federal statute of limitations period (4 years) applies to TCPA cases.

Statutes of limitations are hardly a “cookie cutter” formula because there are many exceptions.  If the TCPA lawsuit is filed in federal court, the statute of limitations my be tolled while a class action is pending. Tolled means that the 4 year “shot clock” is turned “off” beginning on the date the class action was filed until the court denies or grants class certification.   The growth in the number of TCPA class actions,  many individual’s  TCPA cases may be tolled because of this exception.   In many cases, this tolling theory can substantially expand the number of days or years available.

WHY IS THE TCPA STATUTE OF LIMITATIONS TOLLED BY A CLASS ACTION?

In American Pipe & Const. Co. v.Utah, 414 U.S. 538 (1974), the United States Supreme Court was presented with the question whether a statute of limitations is tolled for members of a class action for the period from initiation of that action until class certification is denied.  The Supreme Court was concerned that allowing the statute of limitations to continue to run while a putative class was pending would require potential class  members to protect their rights by intervening or even filing individual lawsuits which would undermine the efficiency of the the class action process.   American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974).  See also, Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983).

The purpose of statutes of limitations is to protect defendants from having to defend themselves against claims which are so old that memories have faded, documents are lost or destroyed, etc.   The Supreme Court reasoned that the defendants are obligated to preserve evidence concerning the potential class members’ claims until the trial court denies the named plaintiff’s motion for class certification.   But, tolling may apply regardless of whether a motion for class certification where, for example, other plaintiffs’ lawsuits sought class action relief.

The United States Supreme Court ruled that a pending class action tolls the statute of limitations only for plaintiffs who bring their cases on their own behalf (i.e., individual’s lawsuits) and not to any subsequent class actions.  China Agritech, Inc. v. Michael H. Resh (June 11, 2018).

WHEN IS THE TCPA STATUTE OF LIMITATIONS TOLLED BY A CLASS ACTION?

How does a court determine when the prior class action ended and, therefore, the length of time the statute of limitations should be tolled after the filing of the prior case?

Each federal circuit court of appeals has its own more or less unique interpretation of American Pipe.  For example, “[i]n the Third Circuit, American Pipe controls so long as the prior class action never materialized for reasons ‘unrelated to the appropriateness of the substantive claims for certification’ (e.g., commonality of the claims as distinct from adequacy of the representative or numerousity).”  City Select Auto Sales, Inc. v. David Randall Assocs., Inc. (D. N.J.  2012) citing McKowan Lowe & Co., Ltd. v. Jasmine, Ltd., 295 F.3d 380, 389 (3d Cir. 2002).

This tolling operates to extend the filing deadline for subsequent individual TCPA cases.

HOW DOES THE TCPA STATUTE OF LIMITATIONS EFFECT MY OPTIONS?

Federal law allows cell phone users up to four (4) years after the violation to file their TCPA lawsuit.  28 U.S.C. Section 1658(a) (2017).

But why would a called party who knows about the TCPA wait four years to file a case?  As a general rule, I would not recommend it.

The purpose of a statute of limitations is to avoid claims which are so old that evidence gets destroyed and memories fade.   The plaintiff cell phone user has the burden of proving the number of calls (times, dates and phone numbers are typically required) and, even in “fresh cases” defendants records are often woefully inadequate.  Furthermore,  many defendants do not save their dialer records for anything close to four years.  Unless a defendant maintains adequate records and is complies with the rules of civil procedure and produces complete phone records (which is seldom the case without a discovery war), the wireless carriers’ records usually make the difference between a “he said, she said” trial.

Wireless providers are not required to retain records for four years. Some wireless providers save critical call information for one year but many do not even save such information that long. Plaintiffs have the burden of proof on most issues and the law sometimes develops in ways which are unfavorable to called parties or valuable TCPA cases get sucked up into defendant-friendly “multi-district litigation  (“MDL”) cases where the cell phone user can not even subpoena his or her carrier until the MDL Court allows the plaintiff to opt-out of the class and pursue his or her individualized discovery.

By the time the MDL Court allows potential class members to opt-out, the wireless carrier probably disposed of many of the call details crucial to prove the unanswered calls (including messages) many years ago.   Although the cell phone user can mitigate this risk by maintaining thorough call logs and preserving screen shots and messages, the cell phone network’s records carry more weight with a judge or jury.

If you believe you have TCPA claims that may be worth pursuing, you are welcome to contact Mr. Petersen to discuss your rights, the call history,  how to preserve the evidence of the caller’s violations, and answer any questions you have about TCPA cases.

CALL DONALD E. PETERSEN AT 407 – 648 – 9050

Or, provide a brief description of you potential case and along with your contact information for a free case evaluation.

FREE CASE EVALUATION

(C) Donald E. Petersen 2017 –  2018

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