In Cokeley v. Midland Credit Management, Inc., 2014 WL 5341919 (D.Kan. 2014), Judge Lungstrum granted summary judgment to a debt collector on an FDCPA claim grounded in harassment.
The Court first concludes that defendant cannot have violated Section 1692d(5) because it did not call plaintiff “repeatedly or continuously.” Defendant called plaintiff for the first time on September 7, 2013, and it called again on September 27, 2013, when no one answered and no message was left. In considering claims under this statutory provision, various courts have applied the FTC’s definition of “repeatedly” to mean “calling with excessive frequency under the circumstances,” and “continuously” to mean “making a series of telephone calls right after the other.” See, e.g., Druschel v. CCB Credit Servs., Inc., 2011 WL 2681637, at *5 n. 10 (M.D. Fla. June 14, 2011) (quoting FTC Staff Comm. on FDCPA, 53 Fed.Reg. 50097–02, at 50105 (Dec. 13, 1988)). The Court agrees that such definitions are appropriate and in accord with the generally-understood meaning of those terms as used in this context. Applying those definitions, the Court concludes as a matter of law that making two calls 20 days apart does not constitute calling repeatedly or continuously. Plaintiff has not cited any authority to suggest that making two calls could satisfy that requirement of the statute, and the Court is not aware of any such authority. Cf., e.g., Shuler v. Ingram & Assocs., 441 F. App’x 712, 718 (11th Cir.2011) (unpub.op.) (affirming summary judgment in favor of defendant; making five calls, including one successful contact lasting less than five minutes and two voicemail messages left, did not constitute repeated or continuous attempts to harass under Section 1692d(5)); Sutton v. New Century Fin. Servs., 2006 WL 2038500, at *2 (D.N.J. July 19, 2006) (denying leave to amend as futile; two calls over a two-month period did not show that the defendant made repeated or continuous calls with the intent to harass). In her brief, plaintiff has not attempted to explain how two calls could be considered “repeated” or “continuous” under the statute. Rather, plaintiff argues that a factual dispute arises concerning the number of calls placed by defendant to plaintiff. The Court rejects this argument. Defendant submitted a declaration stating that it called plaintiff only twice. Plaintiff has controverted that evidence only by stating that certain log entries in a report attached to defendant’s declaration are “indecipherable” with respect to conduct occurring at five different times within a 12–minute period on September 27, 2013, and at one time on October 1, 2013. Those disputed entries, however, do not contain language suggesting that additional calls were made to plaintiff at those times, and plaintiff has not submitted any evidence of her own to contradict the sworn statement by defendant’s representative that defendant called plaintiff only on two occasions. Therefore, the Court must accept as an uncontroverted fact that defendant called plaintiff only two times. Courts have generally considered two types of evidence of an intent to harass [under Section 1692d(5) ]. First, where a plaintiff has shown that he asked the collection agency to stop calling or has informed the collection agency that it has the wrong number, and the collection agency nevertheless continued to call the plaintiff, courts have found intent. Second, the volume and pattern of the calls may themselves evidence an intent to harass. See Hendricks v. CBE Group, Inc., 891 F.Supp.2d 982, 896 (N.D.Ill.2012) (citations omitted) (citing cases); see also, e.g., Higgs v. Diversified Consultants, Inc., 2014 WL 1374055, at *3 (W.D.Mo. Apr. 8, 2014) (citing Hendricks ). As noted above, defendant made only two calls to plaintiff, 20 days apart. Thus, no intent to harass may be inferred here from the volume and pattern of calls. Indeed, courts in this district have recognized that even “[a] high volume of calls, even daily calls, unaccompanied by other egregious conduct is insufficient to raise a triable issue of fact for the jury.” See Webb v. Premiere Credit of N. Am., LLC, 2012 WL 5199754, at *3 (D.Kan. Oct. 22, 2012) (Robinson, J.) (citing Carman v. CBE Group, Inc., 782 F.Supp.2d 1223, 1229–31 (D.Kan.2011) (Robinson, J.)); see also Little v. Portfolio Recovery Assocs., LLC, 2014 WL 1400660, at *2 (D.Kan. Apr. 20, 2014) (Marten, J.) (noting that Webb is consistent with other decisions interpreting Section 1692d); Lynch v. Nelson Watson & Assocs., LLC, 2011 WL 2472588, *2 (D. Kan. June 21, 2011) (Melgren, J.) (citing Carman ). Moreover, the undisputed evidence concerning the two telephone contacts between the parties reveals that plaintiff did not ask defendant to stop calling her. Plaintiff argues that intent to harass should be inferred from the fact that defendant called her again after she stated in the first call that she did not have the money to pay the debt. Such conduct falls far short, however, of the sort of egregious conduct that could create a reasonable inference of an intent to harass. Plaintiff did not tell defendant not to call her, and defendant quite reasonably could have chosen to call her weeks later to see whether her financial situation had changed. Plaintiff has not cited any authority to suggest that a single call following a declaration of an inability to pay could create an reasonable inference of an intent to harass. Plaintiff cites Prewitt v. Wolpoff & Abramson, LLP, 2007 WL 841778 (W.D.N.Y. Mar. 19, 2007), in which the court denied summary judgment on a claim under Section 1692d(5), in part based on evidence that the plaintiff had indicated that he could not pay. See id. at *3. In that case, however, the court specifically noted that the frequency of calls after that statement could demonstrate to a jury an intent to harass. See id. In this case, there was only one call after plaintiff stated that she could not pay; thus, Prewitt does not provide support for plaintiff’s claim here. For these reasons, the Court concludes that no reasonable jury could infer, from this evidence, viewed in the light most favorable to plaintiff, that defendant acted with an intent to harass plaintiff. Moreover, as concluded above, defendant did not call plaintiff “repeatedly or continuously.” Therefore, the Court grants summary judgment in favor of defendant on plaintiff’s claim for a violation of Section 1692d of the FDCPA.
The District Court also found that use of the term “pre-legal” did not by itself violate the FDCPA.
The use of the word “prelegal” by defendant was accurate, as no legal proceedings or legal referral had yet been initiated. That word may imply that legal proceedings are a possibility, but again, plaintiff has not submitted evidence that such proceedings were not, in fact, a possibility. The use of the words “review” and “considering” and “looking at,” in the plain and ordinary sense, did not mean necessarily that an employee of defendant was at that time conducting a review and trying to decide what to do with plaintiff’s account; indeed, it should have been apparent even to the least sophisticated consumer that such a decision was not to be made until the deadline had passed without payment by the consumer. That is even more true with respect to defendant’s initial call and official written notice to the debtor, as that person could hardly be misled, under an objective standard, that the collection company was already engaging in an analysis about attorney referral without first waiting to see whether initial collection efforts bore fruit. The Court also concludes that the fact that defendant never referred the case to an attorney or sued plaintiff does not create any reasonable inference that defendant never intended to do such things when it made the statements to plaintiff. Defendant gave plaintiff an explicit deadline of October 23, 2013, for payment of the debt, after which time litigation would become a possibility. Plaintiff, however, initiated the present lawsuit on October 8, 2013, prior to that deadline. Defendant submitted evidence that, as a matter of policy, it ceases all collection activity if a consumer files a lawsuit against it. Plaintiff complains that defendant’s designee was unable to say whether there was a written policy to that effect, but the lack of a written policy in evidence does not controvert the evidence that defendant did cease activity upon being sued as a matter of standard operating procedure. Moreover, even if defendant had no such policy, one would easily and reasonably expect a debt collector to cease collection activity after having been sued. Thus, the fact that defendant did not take steps down the road to litigation either prior to the payment deadline it gave plaintiff or after plaintiff brought suit against it does not serve as evidence or create any reasonable inference that defendant never intended to refer plaintiff’s account to an attorney under any circumstances. Thus, there is no evidence that defendant was deceptive in stating that referral and litigation were possibilities.