Your collection agency has just been hit with another "generic FDCPA" lawsuit. The facts are similar to the thousands of other FDCPA lawsuits filed nationwide, "Collector Rocko was mean to me by threatening to make me go sleep with the fishes unless I paid my debt." Perhaps a nationwide FDCPA mill steps in and immediately files a lawsuit claiming statutory damages and attorney's fees.
Your agency is faced with the immediate decision... do we fight this lawsuit or do we pay a settlement in the range of $1,500 to $3,000? Communication between defense counsel and the client is extremely important in evaluating the case. And the use of summary judgment proceedings should never be overlooked and in fact, should often be considered as an effective trial tool.
In a recent case filed in the Northern District of New York, the plaintiffs claimed my client violated the FDCPA by using abusive language directed toward them and by calling repeatedly. (Hinderliter v. Diversified Consultants, Inc., 6:10-cv-01313-NAM-TWD, Northern District of New York.) We determined that the plaintiffs’ claims were very weak, engaged in written discovery and without deposing the plaintiffs, filed a motion for summary judgment.
In Hinderliter, Plaintiffs claimed my client violated the FDCPA § 1692d(5) by causing Plaintiffs’ telephone to ring repeatedly and continuously with the intent to annoy, abuse and harass. More specifically, plaintiffs alleged my client called in excess of three (3) times per day. However, the Account History notes indicated that they never attempted to call plaintiffs more then twice in one day and the only time two telephone calls were made was when the first attempt was not successful.
We filed our MSJ and argued whether there is actionable harassment [under § 1692d(5)] or annoyance turns not only on the volume of calls made, but also on the pattern of calls. Joseph v. J.J. MacIntyre Companies, LLC., 238 F. Supp.2d 1158, 1168 (N.D. Cal. 2002). Courts consider a range of facts as to the specific volume and pattern of calls sufficient to raise a triable issue of fact of a defendant's intent to annoy or harass and thus become actionable under the FDCPA. See Fashakin v. Nextel Communications, 2009 WL 790350, at *7 (E.D.N.Y. March 25, 2009). The FDCPA does not prevent a collector from calling multiple times in a week, or even in a day. Allegations of daily, or nearly daily, phone calls do not raise a triable issue of fact to claims under § 1692(d)(5). Arteoya v. Asset Acceptance, LLC, 773 F.Supp.2d 1218, 1229 (E.D. Ca. 2010).
Under the FDCPA, the plaintiff has the burden of proof to establish two elements to show a violation of § 1692d(5): (1). To show that Defendant caused a telephone to ring or engaged any person in telephone conversations repeatedly or continuously, and (2). That Defendant engaged in such conduct with the intent to annoy, abuse, or harass Plaintiffs. See, 15 U.S.C. § 1692d(5).
In Hinderliter, the plaintiffs did not demand my client to cease all communications either verbally or in writing. The Court, in its ruling held, “A number of courts have awarded summary judgment to the defendant even in cases of frequent calls, where the evidence demonstrates an intent to contact the plaintiff and does not support a finding of an intent to annoy, abuse or harass him.” Hinderliter v. Diversified Consultants, Inc., 6:10-cv-01313-NAM-TWD, Northern District of New York (Sep. 7, 20120[Doc. 33] citing Chavious v. CBE Group, Inc., 2012 WL 113509, 2-3 (E.D.N.Y. 2012); Carman v. CBE Group, Inc., 782 F.Supp.2d 1223, 1232 (D.Kan. 2011) and others. The Hinderliter court noted, “These courts based their determinations on undisputed evidence of factors such as the following: the plaintiff did not answer most or all of the defendant’s calls; the plaintiff did not ask the defendant to stop calling; the defendant did not make numerous calls in a single day; the defendant did not call third parties such as plaintiff’s employer; the defendant did not immediately call back if a plaintiff hung up the telephone; and the defendant did not otherwise engage in egregious conduct.” Hinderliter, at p. 5.
The summary judgment evidence in Hinderliter showed that the collection associate only spoke with the plaintiff on one occasion, on August 23. After that communication, the collector attempted to call the plaintiff 4 times the following week, 17 times in September and fifteen times in October. The plaintiffs did not answer any of those calls. The Court found that the collection associate handled the case in accordance with her training, that the volume and pattern of calls was consistent with an intent to contact the plaintiff to arrange for payment and that no evidence existed supporting an intent to annoy, abuse or harass the plaintiff.
The court in Hinderliter ultimately held, “The undisputed factual record, interpreted most favorably to plaintiffs, would not permit a rational trier of fact to find that [Defendant] made the unanswered telephone calls to plaintiffs “with intent to annoy, abuse or harass” them in violation of section 1692d(5).” and granted our summary judgment motion.
In many cases, I recommend you file your MSJ to put the plaintiff on his burden to show that your client had the requisite intent to annoy, abuse and harass. Intent is the key. If there is no history of numerous calls made every day and if calls are made in accordance with the standard operating procedures of the agency, the plaintiff’s burden to show intent becomes problematic. If nothing else, it gives you a blueprint as to the manner in which the plaintiff intends to present its case. A little hard work and coordination with your client are the keys to defeating these generic FDCPA claims
