In Caudell v. Financial Credit Network, Inc., 2011 WL 1377643 (E.D.Cal. 2011), Judge O’Neill applied Iqbal/Twombly to find that Plaintiff had not adequately pleaded obscene or profane communications in connection with debt collection, nor did Plaintiff’s allegations of daily telephone calls rise to the level of pleading harassment.
15 U.S.C. § 1692d(2) “was meant to deter offensive language which is at least akin to profanity or obscenity. Such offensive language might encompass name-calling, racial or ethnic slurs, and other derogatory remarks which are similar in their offensiveness to obscene or profane remarks.” Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1178 (11th Cir.1985). FCN faults the complaint’s failure to identify profanity, obscenity or abusive language. FCN notes the complaint’s limited references to “if you were a responsible person we wouldn’t need to call you” and “[e]ven if you pay we’ll still sue you.” FCN argues that such statements fail to constitute profanity or obscenity akin to name calling or racial or ethnic slurs and are not “naturally abusive.” FCN equates the statements to the “debt collection process.” FCN further notes that the complaint fails to identify the maker of the statements. The “responsible person” and “sue you” comments are neither obscene nor profane. The complaint lacks specifics or context to constitute the comments as abusive. The natural consequence of the alleged statements does not rise to the level of profanity, obscenity or abuse to support FDCPA and RFDCPA claims.
As to the issue of harassment, the Court explained:
FCN urges this Court to examine the frequency and pattern of telephone calls “to determine whether a debt collector has demonstrated an intent to harass.” FCN points to the complaint’s allegation of FCN’s daily phone calls and contends that “merely calling once or more per day, is not, by itself, sufficient to create liability for harassment.” FCN argues that the complaint lacks facts to constitute harassment in the absence of allegations that “FCN undertook any other action related to calling Mr. Caudell .” FCN further faults the lack of allegations of the number and succession of telephone calls and whether messages were left or FCN made contact with Mr. Caudell. [para] FCN raises valid points. There are no allegations that FCN caused Mr. Caudell’s telephone to ring or engaged him in telephone conversations repeatedly or continuously. The limited allegation of daily telephone calls over an unspecified period fails to support unreasonable frequency to support harassment. In the absence of facts of frequency, pattern, duration and succession of telephone calls, repeated telephoning and conversation claims fail.