The FDCPA offers no definitive number on how many telephone calls constitutes harassment under 15 U.S.C. 1692d(5) and Civil Code 1788.11(e). Recent jurisprudence, at least under the FDCPA, has suggested that a showing of pattern, intent, and consumer complaints about the excessive calls may be required. For example, in Winberry v. United Collection Bureau, Inc., 2010 WL 996144 (M.D.Ala. 2010), Judge Albritton denied summary judgment where the debt collector, “having been informed that Jeffery Winberry was not going to pay the debt, and having been informed that Martha Winberry had health ailments and was not liable for the debt, continued to call both Winberrys, even placing calls to Martha Winberry once Jeffery Winberry had ended a conversation, sometimes not identifying himself as a debt collector, and sometimes threatening legal action he did not intend to take, resulting in 33 calls in relatively short period.” However, in Katz v. Capital One, 2010 WL 1039850 (E.D.Va. 2010), Judge Brinkema granted summary judgment to a debt collector on the basis that the small number of calls — even if repetitive — did not constitute a “pattern” of harassment, explaining that “nothing in the record indicates that the phone calls were intended to be annoying, abusive, or harassing. Instead, the record shows that Allied, believing plaintiff’s debt to be valid, attempted to take steps to collect that debt. Moreover, the record reflects that Allied placed no more than two calls to plaintiff in a single day. . . The evidence shows that none of Allied’s calls were made back-to-back, at inconvenient times, after plaintiff had asked Allied to stop calling, or immediately after plaintiff hung up. Allied called plaintiff twice in a single day, within a three-hour time span on one occasion and within a four hour time span on another occasion. Without any indicia of an unacceptable pattern of calls, this does not constitute harassment.”.
Recently, in Arteaga v. Asset Acceptance, LLC — F.Supp.2d –, 2010 WL 3310259 (E.D.Cal. 2010), Judge O’Neill granted summary judgment to the debt collector on the basis that the calls did not amount to a pattern of harassment. The defendant’s telephone calls consisted of the following:
Between April 16, 2009 and September 29, 2009, Asset’s records reflect that Asset telephoned Ms. Arteaga a total of eighteen times. Specifically, Asset called on the following dates: 4/16, 4/28, 5/8, 5/13, 5/14, 5/27, 6/12, 6/16, 6/25, 6/30, 7/6, 7/13, 7/22, 8/4, 8/12, 8/18, 9/2, and 9/29. Asset noted the following outcome of the calls: (A) On nine occasions, no one answered the phone; (B) On three occasions, an answering machine was detected, but no message was left; (C) On two occasions, an answering machine was detected and a message was left; (D) On one occasion, a busy tone was detected; (E) On one occasion, someone answered but did not confirm whether it was Ms. Arteaga; (F) On one occasion, someone answered and selected a prompt to indicate that it was the right party, but the call dropped before it could be connected to a live representative; and (G) On one occasion, the call dropped before it could be completed. Asset contends that the purpose of the calls was to contact Ms. Arteaga to arrange payments to satisfy the debt, and that no calls were placed with the intent to annoy, abuse or harass Ms. Arteaga. Asset disputes Ms. Arteaga’s recollection that Asset called “daily.”
Judge O’Neill found that these facts did not violate the FDCPA or Rosenthal Act, explaining:
Under the facts of this case, the Court finds that Asset’s conduct did not rise to the level of harassment under Section 1692d, and fails to raise a triable issue of fact as to whether the phone calls were initiated with the intent to harass in violation of Section 1692(5). None of the egregious conduct identified above is present in this case. Ms. Arteaga presents no evidence that Asset called her immediately after she hung up, called multiple times in a single day, called her place of employment, family, or friends, called at odd hours, or called after she requested Asset to cease calling. Indeed, Ms. Arteaga does not claim that she requested Asset to cease calling her, and only recalls the substance of hone conversation in which Ms. Arteaga initiated the communication with Asset. Ms. Arteaga fails to cite a single case in which “daily” or “nearly daily” phone calls alone raise an issue of fact as to these claims. Rather, the case law supports Asset’s position that, even if Ms. Arteaga’s allegations are believed as true, and considered under the “least sophisticated debtor” standard, the conduct does not constitute harassment as a matter of law. See, e.g., Udell v. Kansas Counselors, Inc., 313 F.Supp.2d 1135 (Dist. Kan.2004) (fact that debt collector placed four automated telephone calls to consumers over course of seven days without leaving message did not, as matter of law, constitute harassment under DCPA). Accordingly, this Court grants summary judgment in favor of Asset on Ms. Arteaga’s Section 1962d and 1962d(5) claims. ¶ The above analysis applies equally to Ms. Arteaga’s Rosenthal Act claims. Under the Rosenthal Act, it is unlawful to cause “a telephone to ring repeatedly or continuously to annoy the person called.” Cal. Civ. Code 1788.11(d), or “[c]ommunicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and constitute an harassment to the debtor under the circumstances.” Id. at 1788.11(e). For the reasons explained above, this Court finds that “daily” calls alleged by Ms. Arteaga fails to raise a genuine issue of material fact as to whether Asset’s communications were so frequent as to be unreasonable or to constitute harassment under the circumstances regarding Ms. Arteaga’s Rosenthal Act claims. See Joseph, 238 F. Supp. 2d 1158 (finding that actionable harassment or annoyance under Rosenthal Act may be based on either the volume or pattern of calls, similar to FDCPA analysis).
Finally, Judge O’Neill found that the debt collector could rely on the bona fide error defense to any claim that its employee made a misrepresentation in any telephone call, as the facts demonstrated that “these procedures were reasonable methods for preventing collection personnel from making inappropriate statements during collection calls.”
UPDATE: Shortly after the ruling, the Plaintiff moved for reconsideration. The Court’s order on the harassment issue made it worse for the Plaintiff:
Ms. Arteaga’s assertion that this Court accepted defendants’ facts as true is false and unsupported by a reading of this Court’s order. Nowhere in its MSJ Order did this Court accept as true defendants’ facts. Rather, on her Section 1692d claims, the Court reasoned as follows (emphasis added): ¶ Under the facts of this case, the Court finds that Asset’s conduct did not rise to the level of harassment under Section 1692d, and fails to raise a triable issue of fact as to whether the phone calls were initiated with the intent to harass in violation of Section 1692(5). None of the egregious conduct identified above is present in this case. Ms. Arteaga presents no evidence that Asset called her immediately after she hung up, called multiple times in a single day, called her place of employment, family, or friends, called at odd hours, or called after she requested Asset to cease calling. Indeed, Ms. Arteaga does not claim that she requested Asset to cease calling her, and only recalls the substance of one conversation in which Ms. Arteaga initiated the communication with Asset. Ms. Arteaga fails to cite a single case in which “daily” or “nearly daily” phone calls alone raise an issue of fact as to these claims. Rather, the case law supports Asset’s position that, even if Ms. Arteaga’s allegations are believed as true, and considered under the “least sophisticated debtor” standard, the conduct does not constitute harassment as a matter of law. ¶ The Court based its decision, not on whether Asset called her 18 times, but on whether “daily” or “near daily phone calls” during the relevant time period raised a question of fact on the issue of harassment. This Court pointed out that no authority found that “daily” or “near daily” calls raised an issue of fact for a jury to determine whether the conduct violated Section 1692d. The Court plainly stated that “even if Ms. Arteaga’s allegations are believed as true,” the conduct did not constitute harassment as a matter of law. Accordingly, this Court denies reconsideration on these grounds. ¶ Next, Ms. Arteaga argues that this Court erred because whether the conduct constitutes harassment was a factual issue for the jury to decide, not an issue for the Court to decide. To support this assertion, Ms. Arteaga string cites multiple cases, most of which she cited in opposition to the summary judgment motion. Ms. Arteaga re-asserts her original argument that because the facts are contested, there is a question for the jury. ¶ As this court set forth above, reconsideration is not to be used to ask the court to rethink what it has already thought. Rezzonico, 32 F.Supp.2d at 1116. . . Indeed, the MSJ Order includes a four-page assessment of the state of the law on Section 1692d claims, and cited over twenty published opinions on the matter. Ms. Arteaga ignores this Court’s lengthy analysis in this motion, and her arguments on reconsideration simply recapitulate her original argument. In addition, and most importantly, Ms. Arteaga continues to fail to cite a single case in which “daily” or “nearly daily” phone calls for any period of time raised a question of fact on harassment. Accordingly, this Court denies reconsideration on this ground. . . ¶ Ms. Arteaga argues that this Court committed clear error because it failed to construe the evidence liberally. In its order, this Court noted that the FDCPA is to be construed liberally; however, liberal construction of a statute does not mean that Ms. Arteaga withstands summary adjudication of her claim without having evidence to support it. Courts across the country have found that: ¶ Some conduct does not constitute harassment as a matter of law. See e.g., Gallagher v. Gurstel, Staloch & Chargo, P.A., 645 F.Supp.2d 795 (Dist.Minn.2009) (single laugh by employee of debt collector during phone call with debtor to discuss holds placed on funds in debtor’s bank account was not harassing, oppressive, or abusive conduct violative of FDCPA; laugh was during a single phone call involving only employee and debtor that was initiated by debtor, and there were no profanities, name calling, insults, unwanted calls or disclosure of private information to third parties caused by debt collector); Baker v. Allstate Financial Services, Inc., 554 F.Supp.2d 945 (Dist.Minn.2008) (debt collector’s statement in voicemail that consumer’s “case” was “urgent” and “time sensitive” was not sufficiently harassing, oppressive, and abusive to violate FDCPA); Thomas v. LDG Financial Services, Inc., 463 F.Supp.2d 1370 (N.D.Ga.2006) (alleged conduct by debt collector during telephone conversation, in telling debtor that they were going to get their money one way or another, yelling that Georgia was a garnishable state, then hanging up, and asking debtor what her problem was because she was making the same salary as she did when she was paying her bills, did not rise to the level of harassment prohibited by the FDCPA); Tucker v. The CBE Group, Inc., — F.Supp.2d. —-, 2010 WL 1849034 (M.D.Fla.2010) (facts did not raise reasonable inference of intent to harass where debt collector made 57 calls to the plaintiff, including seven calls in one day, because the debt collector never spoke to the debtor, was never asked to cease calling, and never called back on the same day it had left a message). Even liberally construed, Ms. Arteaga continues to fail to cite a single case in which “daily” or “nearly daily” phone calls alone raise an issue of fact as to these claims. In fact, the cases cited in which conduct was found not to constitute harassment as a matter of law involved facts comparatively more egregious that the instant action. The case law supports this Court’s decision that, even if Ms. Arteaga’s allegations are believed as true, and considered under the “least sophisticated debtor” standard, the conduct does not constitute harassment as a matter of law. Accordingly, Ms. Arteaga’s motion to reconsider this Court’s grant of summary adjudication against her on her Section 1962d and 1962d(5) claims is denied.
Arteaga v. Asset Acceptance, LLC, 2010 WL 3590161 (E.D. Cal. Sept. 15, 2010).