In Reddin v. Rash Curtis & Associates, 2016 WL 3743148, at *2-3 (E.D.Cal. 2016), the Court held that the FDCPA only protects third parties where the statute refers to something other than “consumers”.
Subsection 1692c(a)(1) generally prohibits a debt collector from communicating with a “consumer in connection with the collection of any debt…at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.” Id. § 1692c(a)(1). FDCPA defines “consumer” as “any natural person obligated or allegedly obligated to pay any debt.” Id. § 1692a(3). For purposes of § 1692c, “the term ‘consumer’ includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.” Id. § 1692c(d).Here, it is undisputed that plaintiff was not obligated to pay any debt and that defendant telephoned her home only in an effort to collect debts her son owed, and plaintiff conceded at oral argument that her son was not a minor. Although plaintiff cites several cases recognizing FDCPA claims by non-debtors, those claims were for violations of other subsections of the FDCPA that are not limited to “consumers.” (See Pl.’s Opp’n at 5 (Docket No. 13) (citing cases addressing § 1692d and § 1692e, which are not limited to “consumers”).) Plaintiff relies heavily on the Sixth Circuit’s recognition in Montgomery v. Huntington Bank that a non-debtor may bring claims under § 1692d and § 1692e. 346 F.3d 693, 696 (6th Cir. 2003). In that case, however, the Sixth Circuit expressly distinguished those subsections from § 1692c: “[R]elief is limited to ‘consumers’ only under § 1692c, [and]….only a ‘consumer’ has standing to sue for violations under 15 U.S.C. § 1692c.” Id. at 696-97 (internal quotation marks and citation omitted).Plaintiff has also failed to put forth evidence from which a reasonable jury could find that telephone calls to a home at 10:00 a.m. or 6:00 p.m. are “at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.” 15 U.S.C. § 1692c(a)(1). Subsection 1692c(a)(1) in fact contemplates calls at those times, providing that “a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antemeridian and before 9 o’clock postmeridian, local time at the consumer’s location.” Id. § 1692c(a)(1). Accordingly, because § 1692c is limited to “consumers,” the court must grant defendant’s motion for summary judgment on plaintiff’s FDCPA claim based on § 1692c(a)(1).2
The Court also held that two calls, eight hours apart, did not constitute harassment.
Subsection 1692d generally prohibits a debt collector from “engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt,” and subsection 1692d(5) specifically provides that “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number” violates § 1692d. Id. § 1692d(5). While the FDCPA is generally a strict liability statute, “Congress took care to require an element of knowledge or intent in certain portions of the FDCPA where it deemed such a requirement necessary,” such as § 1692d(5). Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1176 (9th Cir. 2006) (internal quotation marks and citation omitted); accord Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 594 (2010) (citing § 1692d(5) as a provision of the FDCPA “applying to acts taken with particular intent”). Even pretending that a reasonable jury could find that two telephone calls are sufficiently repetitive and continuous so as to annoy, abuse, or harass a person, the undisputed evidence is that defendant removed plaintiff’s number from its file after she requested it to cease calling her and the second call was inadvertently placed before the automated dialer system was updated that night. Based on this evidence, a reasonable jury could not find that defendant placed the second phone call “with intent to annoy, abuse, or harass,” 15 U.S.C. § 1692d(5). Nor could a reasonable jury find that the “natural consequence” of the two telephone calls in this case “is to harass, oppress, or abuse any person” as required for an FDCPA claim based solely on the general prohibition of § 1692d. “[C]laims under § 1692d should be viewed from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse.” Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1226 (E.D. Cal. 2010) (quoting Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985)). This objective standard is “similar to that of the ‘least sophisticated debtor,’ which the Ninth Circuit applies to other sections of the FDCPA.” Id. (citing Clark, 460 F.3d at 1171). “Whether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls.” Joseph v. J.J. Mac Intyre Cos., L.L.C., 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002). It is undisputed that defendant placed only two calls to plaintiff that were eight hours apart. The only evidence even weighing slightly in favor of plaintiff’s claim is that she had instructed defendant not to call her again between the two calls. After plaintiff sent defendant the email requesting it not to call her again, defendant responded nine minutes later with a professional email that was responsive to her request: “Good Morning, Your request will be processed accordingly, have a great day. Thank you, Client Services.” (Reddin Decl. Ex. A.) As the evidence reveals, the request required an overnight update of the automated dialer system to “process” plaintiff’s request. When plaintiff informed the representative on the second call that she had already instructed defendant to cease calling her, plaintiff does not indicate that the representative did anything but honor her request and terminate the call. There is simply no evidence from which a reasonable jury could find that defendant was anything but professional in its communications with plaintiff or that it threatened or attempted to force plaintiff to remain on a call.