District Court (Cal.) Says 49 Calls in 18 Days Did Not Violate FDCPA

In Hinderstein v. Advanced Call Center Technologies, 2017 WL 751420 (C.D. Cal. 2017), Magistrate Judge Bristow found that the number and pattern of calls to a debtor did not violate the FDCPA.

Courts also have found that “[c]alling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute harassment under the FDCPA.” Arteaga, 733 F. Supp. 2d at 1228. In Martin v. Litton Loan Servicing LP, 2016 WL 4943832, at *8 (E.D. Cal. Sept. 15, 2016), the district court denied the defendant’s motion for summary judgment where the plaintiff claimed that the defendant called her every 15 minutes, starting before 7:00 a.m. and until 10:00 p.m. Based on such circumstances, the district court found that a jury could reasonably conclude that the defendant was calling the plaintiff with the intent to annoy or harass. Similarly, in Schwartz-Earp, 2016 WL 899149, at *4, the district court denied summary judgment where the defendant called the plaintiff 134 times. When the plaintiff answered the telephone call, no live agent would respond and she would eventually hang up. Although the district court noted that “no bright-line rule exists for the amount and pattern of calls necessary to raise a triable issue of harassment, and courts disagree on the issue,” it found that calling up to five times a day in one month was sufficient to raise a triable issue of fact. Id. at *3-4 (citation omitted). See also Rucker v. Nationwide Credit, Inc., 2011 WL 25300, at *2 (E.D. Cal. Jan. 5, 2011) (80 calls, multiple times a day, sufficient to create genuine issue of material fact regarding whether the defendant violated the FDCPA); Stirling, 2012 WL 952310, at *4 (a trier of fact could reasonably conclude that calling a debtor an average of five to six times a day, seven days a week, for almost four months evidences intentional harassment or abuse); Krapf v. Nationwide Credit Inc., 2010 WL 2025323, at *4 (C.D. Cal. May 21, 2010) (concluding that a jury could infer an intent to harass or annoy where the debt collector called an average of six times per day and sometimes called twice within a matter of minutes); Kuhn v. Account Control Tech., Inc., 865 F. Supp. 1443, 1453 (D. Nev. 1994) (as corrected) (finding harassment where the debt collector called the plaintiff six times in 24 minutes, and twice after the plaintiff hung up); United States v. Cent. Adjustment Bureau, Inc., 667 F. Supp. 370, 376 (N.D. Tex. 1986) (finding violations of the FDCPA where debt collector called at inconvenient times; made calls to the debtor’s work and family members; used harassing and abusive language; threatened the debtors; made false representations; and made as many as four or five telephone calls to the same debtor in one day), aff’d as modified, 823 F.2d 880 (5th Cir. 1987) (per curiam). . . Here, plaintiff contends that defendant violated the FDCPA by repeatedly and continuously calling him approximately 49 times in a 18-day period. Although the number of calls does seem relatively high, plaintiff has not adduced evidence of egregious conduct on the part of defendant. All calls were made between 8:00 a.m. and 9:00 p.m, defendant allowed at least 90 minutes to elapse between each call, made no more than five calls in a single day, and did not call plaintiff’s work, family, or friends.  Plaintiff essentially argues that the FDCPA is violated anytime a debt collector persistently attempts to contact a debtor. However, this argument is unpersuasive and is not supported by the applicable legal authority. “The FDCPA does not prohibit debt collectors from employing legitimate, reasonable, non-abusive means to collect debt” and the “[i]ntent to annoy, abuse, or harass cannot be inferred from the simple fact that [d]efendant called [p]laintiff daily, or near daily, and occasionally called more than once in a single day after unsuccessful attempts to reach [p]laintiff.” VanHorn, 2011 WL 4565477, at *4-5. “Any call from a debt collector may be presumed unwelcome, but that alone is insufficient to constitute a violation of the FDCPA.” Martin v. Select Portfolio Serving Holding Corp., 2008 WL 618788, at *6-7 (S.D. Ohio Mar. 3, 2008). Although plaintiff may have subjectively believed that defendant’s calls were annoying or harassing, as explained above, claims under Section 1692d must be viewed objectively. Arteaga, 733 F. Supp. 2d at 1226. Here, the Court finds that the volume of calls resulted from the difficulty in reaching plaintiff, rather than an intent to annoy, abuse, or harass. Defendant’s persistent attempts to reach plaintiff were legitimate and reasonable in light of its unsuccessful efforts to reach plaintiff. See Reed v. IC Sys., Inc., 2017 WL 89047, at *5 (W.D. Pa. Jan. 10, 2017) (finding that the number of unsuccessful telephone calls suggested a difficulty in reaching the plaintiff, not an intent to abuse, harass, or annoy). . . The evidence establishes that plaintiff answered only one of defendant’s telephone calls, a telephone call on May 10, 2015. Until that date, defendant never left any messages for plaintiff. During the May 10, 2015 telephone call, plaintiff acknowledged the debt and asked defendant to cease calling. (Hsu Decl., Exh. 3, Transcript of May 10, 2015 telephone call.) Plaintiff does not contend that defendant threatened him, or otherwise made any improper statements during this telephone call. (See also id.) Defendant complied with plaintiff’s request and immediately ceased calling him. At no time prior to this telephone conversation did plaintiff notify defendant that he felt harassed or requested that defendant stop calling. Indeed, at least two other debt collectors were calling plaintiff during this same time period. Thus, it was not merely defendant that was causing plaintiff’s telephone to ring. See VanHorn, 2011 WL 4565477, at *4-5. Finally, the Court notes that defendant expressly notified plaintiff in writing of his rights under the FDCPA and RFDCPA and provided him the telephone number and the website for the Federal Trade Commission. (Keller Decl., Exh. 1.) Such evidence does not suggest an intent to annoy, abuse, or harass.   Based on the facts and circumstances in this case, the Court concludes that defendant’s conduct did not constitute harassment, oppression, or abuse in violation of the FDCPA.