CEB Prac. Guide § 2A.33 -- Communications with the Debtor -- Harassment, Abuse, and Threats

In Katzakian v. Collectibles Management Resources, 2013 WL 57712 (E.D.Cal. 2013), Judge O'Neill found that an FDCPA Plaintiff failed to state a claim for harassment under 1692d for continuing to collect after a dispute when the debt collector complied with post-dispute debt validation under 1692g. CMR summarizes that section 1692g(b) authorizes continued debt collection unless a consumer disputes in writing during the… Read More

In Caw v. Portfolio Recovery Associates, LLC, 2013 WL 30567 (W.D.Mo. 2013), Judge Gaitan found no telephonic harassment for 35 calls in a  year and 100 calls in 10 years.  “A non-exhaustive list of prohibited conduct includes, “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at… Read More

In Kleiman v. Equable Ascent, 2013 WL 49754 (C.D.Cal. 2013), Judge Snyder allowed an FDCPA-telephonic harassment claim to proceed as adequately pleaded. Defendant's argument that plaintiff must allege the exact time debt collection phone calls occurred and the names of the individuals who made the calls appears to rest on the mistaken assumption that the heightened pleading standards of Federal Rule… Read More

In In re Culpepper, --- B.R. ----, 2012 WL 5395935 (Bkrtcy.D.Or. 2012), Judge Dunn denied a Bank’s MSJ as to an alleged discharge violation arising out of efforts to collect discharged debts surrounding a promissory note related to a deed of trust on Ms. Culpepper's residence property.  You know how it might turn out when Judge Dunn began his opinion… Read More

In Dunning v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 5463294 (S.D.Fla. 2012), Judge Demitrouleas denied summary judgment in an FDCPA call-volume case, not because of the volume of the calls but because of a factual question regarding whether they were received and, if so, their content. The Court finds the parties' dispute about the accuracy of Plaintiff's… Read More

In Gnoinska v. Messerli & Kramer, P.A., 2012 WL 5382180 (D.Minn. 2012), Judge Magnusson held that rudeness did not equate to harassment under the FDCPA. The standard on a Motion to Dismiss is not merely whether the allegations could amount to a claim, but whether the allegations plausibly state a claim. Gnoinska bases her claim on: (1) Doe's unwillingness to… Read More

In Webb v. Premiere Credit of North America, LLC, 2012 WL 5199754 (D.Kan. 2012), Judge Robinson granted summary judgment to a debt collector who called a debtor 150 times in 7 months, but was never able to reach the customer during that time.  The facts were as follows: The following facts are either uncontroverted, stipulated to, or viewed in the… Read More

  In Swearingen v. Portfolio Recovery Associates, LLC, --- F.Supp.2d ----, 2012 WL 4354748 (N.D.Ill. 2012), Judge Chang found that a ‘loud buzzing sound’ in the debt collector’s telephone calls was meant to harass the debtor. In addition, Gordon testified that on numerous occasions he requested that Portfolio provide him with a letter or at least an address for him… Read More

In Dicesari v. Asset Acceptance LLC, 2012 WL 4108944 (E.D.Pa. 2012), Judge Joyner found that false statements in a lawsuit complaint were not actionable under 15 USC 1692e(5) that prohibits a threat to take any action that can not legally be taken or that is not intended to be taken.  The lawsuit is not a “threat”, it is an action,… Read More

In Hinderliter v. Diverisified Consultants, Inc., 2012 WL 3888148 (N.D.N.Y. 2012), Judge Mordue granted summary judgment for a debt collector on a telephonic harassment claim because the efforts to call were efforts to reach the Plaintiff, not to harass. Plaintiffs also complain that during the August 23, 2010 call, Losco stated that failure to resolve the debt would affect Dean… Read More

In Beard v. Sentry Credit, Inc., 2012 WL 3778880 (E.D.Cal. 2012), Judge Mueller partially granted summary judgment on Plaintiff’s FDCPA harassment claim.  Judge Mueller found that the call volume and pattern did not support a claim of harassment. Plaintiff later estimated that Sentry called her at least seven times per day, every day over the course of months (Id. at… Read More

In Hoover v. Monarch Recovery Management, Inc., 2012 WL 3638680 (E.D.Pa. 2012), Judge Gardner allowed a telephonic harassment case to proceed, but dismissed an TCPA “unintended recipient” case based on Meadows as to land-line calls, deferring to the FCC on the subject.  On the harassment case, Judge Gardner found that Plaintiff stated a claim for calls, on average, ten times per… Read More

In Torres v. ProCollect, Inc., 2012 WL 1969280 (D.Colo. 2012), Judge Babcock found wanting a voicemail message left for a debtor under the FDCPA because it did not identify the debt collection agency. Thus, the only way for an identity disclosure to be meaningful to a consumer is if it discloses the name of the debt collection company. Moreover, “because… Read More

In Valle v. National Recovery Service, here, Judge Merryday held that 82 calls during a 252 day span did not constitute harassment as a matter of law, granting summary judgment for the debt collector under the FDCPA. Attempting to show a triable issue of fact, Valle cites only the phone calls from National. Occurring during a 252-day span, the eighty-two… Read More

In Lopez v. Professional Collection Consultants, 2012 WL 777497 (C.D.Cal. 2012), Judge Gutierrez found that the Plaintiff stated a claim for harassment under the Rosenthal Act and FDCPA. Plaintiff alleges that Defendant began placing collection calls to Plaintiff in January 2010 for a debt that Defendant claimed was owed to AT & T. SAC ¶ 11. FN1 Defendant informed Plaintiff… Read More

In Frees v. Pioneer Credit Recovery, Inc., 2012 WL 600785 (S.D.Ohio 2012), Judge Rice found no telephonic harassment for 77 efforts in 8 months.    Frees' Amended Verified Complaint alleges that Pioneer “violated 15 U.S.C. 1692d by causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass,” calling… Read More

In Tarrant v. Northland Group, Inc., 2012 WL 140431 (M.D.Tenn. 2012), Judge Trauger found no telephonic harassment under the FDCPA where the debt collector tried to reach the consumer 39 times, but reached her only twice.      In determining whether Northland's “calls amount to harassment, annoyance, or abuse, the volume of calls must be examined along with the pattern… Read More

In Bautista v. Hunt & Henriques, 2012 WL 160252 (N.D.Cal. 2012), Judge Spero found a telephonic harassment claim too remote from litigation to trigger protection under California’s anti-SLAPP statute, explaining:   In Briggs, supra, the California court of appeal explained that “just as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are… Read More

In Chavious v. CBE Group, Inc., 2012 WL 113509 (E.D.N.Y. 2011), Judge Seybert granted summary judgment in a call-volume/FDCPA harassment case, finding that the call volume was not excessive in light of Plaintiff’s failure to answer the telephone or to tell the collector to stop calling.      Plaintiff has not established a triable issue of fact in this case.… Read More

In Fry v. Berks Credit and Collections, Inc., here, the Magistrate found no FDCPA telephonic harassment for 69 phone calls made to Plaintiffs’ home in two months, where there nineteen days during which Defendant placed three calls to Plaintiffs and five other days during which Defendant placed two calls, five days during which only one call was made and 24… Read More