District Court (Mich.) Says Debtor Has Standing and Valid Claim to Sue for 200+ Collection Calls Placed to and Third Party Disclosure to Debtor’s Parents, But Could Not Prove “Intent” Necessary to Prove Harassment

In Litt v. Portfolio Recovery Associates LLC, 2015 WL 7351781, at *7-8 (E.D.Mich. 2015), Judge Borman found that the debtor had standing, and a valid claim, to sue for 200+ “wrong number” calls to the debtor’s parents, even if most of them went unanswered.  The District Court found that the Plaintiff should be entitled to summary judgment on his claim for violation of the third party disclosure sections 15 U.S.C. 1692b and 1692c(b).

Even viewing the facts in the light most favorable to PRA, there is no genuine dispute of material fact that PRA placed over 200 calls to Plaintiff’s parents after learning that Marvin and Karol Litt’s number was a “wrong number” for directly reaching Michael Litt. Approximately 120 of these calls occurred within the one-year period prior to the filing of Plaintiff’s Complaint on May 1, 2013. Because the FDCPA is a strict liability statute, and because there is no genuine issue of material fact that Marvin and Karol Litt’s number was known to PRA, as of February 5, 2011, to be a third party contact number, it is irrelevant that PRA now takes the litigation position that it “believed” that it was at all times calling a “good” number for Michael Litt when dialing Marvin and Karol Litt. . . PRA argues that it was justified in continuing to call the elder Litts, notwithstanding the notation in its own records that the debtor could not be reached at their number, because it “believed” that it was calling a “good” number for reaching Michael Litt. The FDCPA is a strict liability statute, and “believing” that it was calling a good number to directly reach the debtor is not an exception included within the safe harbor provisions of § 1692b. See Gryzbowski v. L.C. System, Inc., 691 F. Supp. 2d 618, 624 (M.D. Pa. 2010) (holding that defendant’s “subjective belief” that the number it called was that of plaintiff’s employer and not her cell phone was “irrelevant as the FDCPA is a strict liability statute”); Allen v. Checkredi of Kentucky, LLC, No. 09-103, 2010 WL 4791947, at *4 (E.D. Ky. Nov. 17, 2010) (noting that “because the Sixth Circuit treats the FDCPA as a strict liability statute, a single or technical violation by Defendant is sufficient to incur liability,” and finding that because defendant communicated with plaintiff’s father, mother and sister regarding plaintiff’s debt, defendant “would be found to have violated § 1992c(b) unless it is protected by the FDCPA’s safe harbor provision, 15 U.S.C. § 1692b”); Kempa v. Cadlerock Joint Ventures, L.P., No. 10-11696, 2011 WL 761500, at *4-5 (E.D. Mich. Feb. 25, 2011) (holding that because the FDCPA is a strict liability statute, plaintiff was entitled to summary judgment on her § 1692c(b) claim despite the fact that defendant thought it was entitled to contact the plaintiff’s parents). Therefore PRA is liable for violating § 1692c(b) for communicating with a third party in connection with the collection of the debt without the consent of the debtor unless it is protected by the safe harbor provisions of § 1692b. Checkredi, 2010 WL 4791947, at *4.  .  .Applying the rationale of Van Ru to the unanswered call scenario at issue in this case, and finding persuasive the reasoning of the courts in Cerrato and Rush, the Court finds no genuine issue of material fact that the Litts, inferentially if not directly, understood that the 160 PRA calls that they received but did not answer were from PRA in connection with their son Michael’s debt. “[T]aking the facts and drawing inferences in favor of the non-moving party, Plaintiffs knew that…Portfolio was a debt collector….[and] it can reasonably be inferred that at that point Plaintiffs knew that Portfolio, as a debt collector, was calling Plaintiffs with respect to a debt.” Rush, 977 F. Supp. 2d at 423. Plaintiffs’ declarations establish that by mid-February, 2011, they were well aware of why PRA was calling them and they knew by the information conveyed on their caller ID that the PRA calls that they did not answer in 2012 and 2013 were from PRA. Marvin Litt testified that he “told [his] son on several occasions that PRA was calling our home about his debt and that it was upsetting his mother.” ECF No. 108, Amended Declaration of Marvin Litt ¶ 9. PRA has submitted no evidence in response to create a genuine issue of material fact regarding these assertions by Marvin Litt. PRA’s 30(b)(6) deponent confirmed that all of PRA’s calls “outpulse” PRA’s identifying information. According to Ms. Privette, what PRA “out-pulses” for purposes of information to be displayed on a caller ID is a telephone number and the name Portfolio Recovery Associates. Privette Dep. 137. According to Ms. Privette, every number “out-pulsed” by PRA when called gets back to a PRA representative. Id. PRA never deposed Marvin and Karol Litt and has submitted no evidence to contradict their testimony that they reasonably understood these unanswered calls to have been from PRA regarding their son Michael’s alleged debts. Accordingly, the Court finds that the 160 some calls from PRA to Marvin and Karol Litt that occurred within the one year prior to filing of this action were “communications” under the FDCPA.  For these reasons, the Court GRANTS Plaintiff’s motion for summary judgment on his claim that PRA violated § 1692c(b) and DENIES Defendant’s motion for summary judgment on this claim.

But, the District Court found that the debtor could not state a claim for actionable harassment under 15 U.S.C. § 1692d (“A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt”)  due to an absence of “intent”.

Plaintiff appears to concede that there is no direct evidence of such intent on the part of the PRA caller (who in fact has never been identified) with regard to the calls to his parents, but suggests that the general proscription of § 1692d requires no proof of intent if the “natural consequence” of the conduct is to harass, annoy or oppress. Courts have held, however, that the requirement that plaintiff establish that the facts alleged have the natural consequence of harassing or abusing a debtor is tantamount to requiring plaintiff to allege facts that support an inference of intent:  Section 1692d prohibits debt collectors 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 debt.” § 1692d. “This provision of the FDCPA lists nonexclusive examples of the type of conduct prohibited by the Act,” including “[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.” Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329–30 (6th Cir. 2006) (citing § 1692d(5)). “[A]lthough the question of whether conduct harasses, oppresses, or abuses will [ordinarily] be a question for the jury,…Congress has indicated its desire for the courts to structure the confines of § 1692d. Courts have therefore dismissed claims filed pursuant to § 1692d as a matter of law if the facts alleged do not have the natural consequence of harassing or abusing a debtor.” Id. at 330 (second alteration in original). In other words, the debt collector’s conduct must be “intended to embarrass, upset, or frighten a debtor.” Id.  Lashbrook v. Portfolio Recovery Assoc., LLC, No. 11-15624, 2013 WL 4604281, at *5 (E.D. Mich. Aug. 29, 2013). Thus, while the general proscription of § 1692d does not use the word “intent,” such a requirement is inferred from the necessity to establish that the natural tendency of the conduct is to embarrass, upset or frighten a debtor. If the natural tendency of certain conduct is to embarrass, upset or frighten, then one who engages in such conduct can be presumed to have intended the natural consequences of his acts. Indeed, where, as here, the alleged § 1692d violation is based solely upon repetitive calling, it would read the intent requirement out of § 1692d(5) if Plaintiff were permitted to proceed under the general proscription of § 1692d based upon repeated calls without demonstrating, at a minimum, a reasonable inference of intent.  Plaintiff contends that “by calling Plaintiff’s parents 213 times, PRA violated § 1692d in general.” ECF No. 120, Pl.’s Resp. 25. However, evidence of the sheer number of calls, standing alone, will not meet Plaintiff’s burden of establishing a violation of § 1692d. . . Lashbrook, 2013 WL 4604281, at *6 (quoting Millsap v. CCB Credit Servs., Inc., No. 07-11915, 2008 WL 8511691, at *7 (E.D. Mich. Sept. 30, 2008)). In Lashbrook, the court concluded that 120 calls over a one-year period was not sufficient to raise a triable issue of harassment. The court concluded that allegations of nearly daily phone calls, absent allegations regarding the content of the calls, is not sufficient to create a material question of fact regarding harassment. 2013 WL 4604281, at *6. The court did find that allegations regarding multiple phone calls within a single day that plaintiff actually answered “likely does constitute harassment,” even though placing a few calls a day that go unanswered “is likely not harassment.” Id. See also Tye v. LJ Ross Assoc., No. 11-15195, 2013 WL 424765, at *4 (E.D. Mich. Feb. 4, 2013) (finding that “the amount of calls, in and of themselves, is not a per se violation of the statute,” and finding no triable issue as to a violation of § 1692d where there was no evidence beyond the frequency of calls to establish how they were harassing, oppressive or abusive, holding that “a debt collector does not necessarily engage in harassment by placing one or two unanswered calls a day in an unsuccessful effort to reach the debtor, if this effort is unaccompanied by any oppressive conduct such as threatening messages”).  Plaintiff provides no evidence in support of his § 1692d claim other than evidence that PRA “called his parents 213 times.” But the Court is required to consider both the context and the pattern of calls and Plaintiff provides evidence of neither. Plaintiff asserts that “the sheer volume of calls” to his parents violates § 1692d. Even assuming that Plaintiff could assert this claim based on calls to his parents and not to himself, the evidence he has proffered is insufficient evidence to create a triable issue of fact of harassment under § 1692d. Accordingly, the Court DENIES Plaintiff’s motion for summary judgment on his § 1692d claim and GRANTS Defendant’s motion for summary judgment on this claim.