District Court (Cal.) Says FDCPA Plaintiff Can Not Simulaneously Sue Under Separate FDCPA Provisions In Order to Avoid the Intent Element of One of Them; Says Calls to Multiple Numbers Does Not Explain Call Volume But Instead Evidences Intent to Harass

In Neu v. Genpact Services, LLC, 2013 WL 1773822 (S.D.Cal. 2013) granted in part and denied in part a debt collector’s summary judgment motion brought against a debtor’s FDCPA harassment claim.  The facts were as follows.

Genpact is a debt collector as defined by the Fair Debt Collections Practices Act (“FDCPA”) and California Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”). (MSJ, 7.) Neu owed a debt to GE Money Bank for the balance of his Lowe’s credit card. (Compl. [Doc. 1.], ¶ 12.) Genpact attempted to collect the debt on GE Money Bank’s behalf. (Declaration of Prasad Veerapaneni [Doc. 20–2], ¶ 2.) Genpact wrote to Neu on June 22, 2011 in order to settle the debt. (Opp’n Ex. B [Doc. 22–2].) Genpact alleges Neu did not respond to the letter. (MSJ, 7.)  ¶  Following its unsuccessful attempt to reach Neu via mail, Genpact tried to reach Neu via telephone. (Decl. Veerapaneni, ¶ 4.) Genpact had two phone numbers for Neu, a home number and a cell number. (Id., ¶¶ 4–5.) Between July 21, 2011 and September 9, 2011, Genpact called the two numbers 150 times. (Decl. Veerapaneni, ¶ 5.) Genpact’s records show that it called Neu’s home phone number 79 times and Neu’s cell number 71 times. (MSJ, 8.) On one occasion, Genpact called Neu 6 times in one day. (Opp’n Ex. C [Doc. 22–3], 7.) Genpact alleges it left Neu no voice messages to avoid the possibility of third parties overhearing the messages. (Decl. Veerapaneni, ¶ 5.)

  First, the District Court found that the Plaintiff could not simultaneously maintain an FDCPA claim under one provision that had no intent element in order to avoid the intent element under another provision of the FDCPA.

Neu argues that he can simultaneously assert a § 1692d claim and a separate 1692d (5) claim. (Opp’n, 4–5.) This distinction is important, as Neu points out, because while § 1692d(5) has an “intent” requirement, § 1692(d) has no such requirement. (Id.) According to Neu, Genpact’s MSJ improperly conflates Neu’s § 1692d claim “with § 1692d(5) [,] ignoring the fact that a collector can violate § 1692d without violating § 1692d5.” (Id.) ¶  Genpact argues that § 1692d(5)controls in this case because Neu’s claim is based solely on the number of Genpact’s phone calls. (Reply, 4.) According to Genpact, “ §§ 1692d and 1692d(5) should not be viewed as separate bases for claims for harassment, but rather as a single statutory basis for a claim of harassment which provides specific guidelines in certain circumstances as to what constitutes harassment.” (Id., 5–6.) The Court agrees with Genpact.  ¶  A plaintiff “may ordinarily pursue claims under both § 1692d and § 1692d (5).” Stirling v. Genpact Services, LLC, No. 2:11–CV–06369, 2012 WL 952310 at *3 (C.D.Cal. Mar.19, 2012) (emphasis added); Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1177 (9th Cir.2006) (“[O]ne action can give rise to multiple violations of the Act.”). However, this case fits entirely within § 1692d (5)’s specific prohibition against telephone calls made “with intent to annoy, abuse, or harass” because the entire case is premised on Genpact’s phone calls. 15 U.S.C. § 1692d(5). If Neu could pursue both a § 1692d and a § 1692d(5) claim on the same facts, the result would “effectively eviscerate the requisite intent contemplated in situations governed by § 1692d(5) … [and] would also render that entire subsection super-fluous.” Stirling, 2012 WL 952310 at *3. Neu “cannot obviate § 1692d(5)’s intent requirement by electing to pursue a § 1692d claim, where the only conduct relied on fits squarely within § 1692d(5).” Stirling, 2012 WL 952310 at *3. Accordingly, the Court finds that § 1692d(5), the more specific FDCPA provision, governs this case. See Id.; see also Hendricks v. CBE Grp., Inc., 891 F.Supp.2d 892, 896 n. 2 (N.D.Ill.2012) (refusing to analyze claim under both § 1692d and § 1692d(5) when alleged misconduct consisted solely of telephone calls).

The District Court denied the debt collector’s summary judgment motion on the basis that the call volume suggested an intent to harass.  Moreover, the District Court rejected the debt collector’s argument that the call volume was high due to calls on multiple numbers.  The District Court instead found that calls to multiple numbers could demonstrate an intent to harass.

Genpact cites a number of out-of-district cases in support of its MSJ. (MSJ, 22–26.) While the number of calls here far exceeds the number of calls in most of Genpact’s support, one case is factually similar. In Carman v. CBE Group, Inc., the court granted summary judgment against the debtor, holding that the debt collector’s actions-calling the plaintiff on two phone numbers 149 times in 55 days-evidenced intent to establish contact, not intent to harass. 782 F.Supp.2d 1223 (D.Kan.2011). While Genpact and the debt collector in Carman both called the debtors two to three times per day for a similar period of time, the debt collector in Carmen never called the debtor six times in one day. See Carman, 782 F.Supp.2d 1223. A reasonable trier of fact could find that this fact alone, apart from the sheer volume of calls placed by Genpact, is sufficient to find that Genpact had the “intent to annoy, abuse or harass” Neu. 15 U.S.C. § 1692d(5). ¶  Genpact also contends that the number of calls it placed was “simply a function of the fact that Genpact had two numbers potentially applicable to Plaintiff and that Plaintiff did not respond to any of Genpact’s attempts to reach him.” (MSJ, 15–16.) Thus, it appears that Genpact is suggesting that this Court should somehow discount the number of calls it made because it had two different contact numbers for Neu. However, a reasonable trier of fact could find that a debt collector intended to harass a debtor by continuously calling not one, but two different numbers belonging to the debtor.

Finally, the District Court found that the Plaintiff’s claim under the Rosenthal Act’s prohibition against communicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances (Cal. Civ.Code § 1788.11) was barred because there was no actual “communication” under the Rosenthal Act.  Call “attempts” were not “communications” under this provision.

Genpact also argues it is entitled to summary judgment with respect to Neu’s § 1788.11(e) claim because Neu and Genpact never actually communicated by telephone or in person. (MSJ, 26.) Because § 1788.11(e) requires actual communication between the debt collector and the debtor and there is no evidence of such communication, the Court GRANTS Genpact’s summary-judgment motion with respect to Neu’s § 1788.11(e) claim.