In Frees v. Pioneer Credit Recovery, Inc., 2012 WL 600785 (S.D.Ohio 2012), Judge Rice found no telephonic harassment for 77 efforts in 8 months.
Frees’ Amended Verified Complaint alleges that Pioneer “violated 15 U.S.C. 1692d by causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass,” calling him more than 77 times in less than 8 months. Am. Verified Compl. ¶ 23. ¶ Pioneer admits that between January and August of 2009, it attempted to telephone Frees approximately 77 times in order to amicably resolve his account. Webb Aff. 126. Pioneer argues, however, that this many phone calls, spread over the course of 8 months cannot be described as “repeated” or “continuous.” Pioneer also denies that it made the calls “with intent to annoy, abuse, or harass” Frees. Rather, Pioneer maintains that it was simply making a legitimate attempt to reach him in order to work out an amicable agreement and avoid wage garnishment. Pioneer kept trying, but Frees was repeatedly unavailable. Pioneer further maintains that Frees’ conclusory statement that Pioneer acted “with intent to annoy, abuse, or harass” is insufficient to create a genuine issue of material fact. ¶ Under the FDCPA, however, the debt collector’s “intent” is generally a question of fact for the jury. See Holland v. Bureau of Collection Recovery, 801 F.Supp.2d 1340, 1342 (M.D.Fla.2011). Direct evidence of intent is rarely available, but intent “may be inferred by examining the nature and frequency of debt collection calls.” Id. (citing Meadows v. Franklin Collection Serv., 414 F. App’x 230 (11th Cir.2011)). The pattern of calls may also be considered. See Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492, 505–06 (D.Md.2004) (holding that the reasonableness of 26–28 calls in a two-month period, including 3 calls within 5 hours on the same day, was a question of fact for the jury). ¶ In this case, Pioneer has submitted its call log, showing the dates and times it tried to contact Frees. Ex. 1 to Webb Aff. Because of the somewhat cryptic nature of the coding system used in the call log, however, it is not clear from the record whether Pioneer actually made contact with Frees during those calls, or left any messages for him. In the Court’s view, there is a genuine dispute of material fact concerning whether the volume of calls made by Pioneer was reasonable, and whether the nature, frequency, and pattern of calls shows an intent to annoy, abuse, or harass Frees. Summary judgment on this portion of the FDCPA claim is therefore inappropriate.