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

In Coleman v. Credit Management, here, Judge Lynn held that section 1692c of the FDCPA – related to communications with consumers at inconvenient times or places – does not apply to non-consumers.   Even though §1692d – related to harassing any person -- does apply to non-consumers, the section is not violated where the debt collector only makes fourteen phone calls in… Read More

In Daniel v. West Asset Management, Inc., 2011 WL 5142980 (E.D.Mich. 2011), Judge Cleland granted summary judgment against a debtor on the debtor’s FDCPA harassment claim:    Defendant argues that Plaintiff has failed to raise a genuine issue for trial because “Plaintiff has offered no indication on the number of calls, the time of calls, the content of any conversations… Read More

In Lopez v. Professional Collection Consultants, 2011 WL 4964886 (C.D.Cal. 2011), Judge Gutierrez granted a debt collector's Motion to Dismiss a telephonic harassment case, with leave to amend, holding: There are no facts alleged as to the content of the calls. And the confusing statement that Defendant made “up to three [ ] collection calls five [ ] times per week”… Read More

In Monahan v. NRA Group, LLC (D.Conn. 2011), here, Judge Hall held that debt collection, after all, by its nature inflicts some inconvenience and embarrassment and the FDCPA was not designed to eliminate all of it.      The district court held that section 1692d is meant to protect debtors from oppressive and outrageous conduct, but not from every negative… Read More

In Vester v. Asset Acceptance, L.L.C., 2011 WL 4591948 (D.Colo. 2011), Judge Krieger was asked to reconsider an FDCPA ruling adverse to the consumer on the basis that the 9th Circuit’s decision in McCullough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir.2011) and its holding regarding the evidentiary value of generic credit card agreements to prove-up a… Read More

In Dudley v. Powell Law Office, P.C., 2011 WL 4544632 (W.D.Wash. 2011), Judge Leighton expanded on the Arteaga holding that one-call-per-day is not too much, saying that the FDCPA “does not even prevent a collector from calling multiple times in a week, or even in a day.”    Crystal Dudley owes a debt and acknowledges that the debt is owed.… Read More

In Monahan v. NRA Group L.L.C., 2011 WL 3901877 (D.Conn. 2011), Judge Hall found that a debt collector’s statements that collections would continue were not oppressive to the debtor:   Section 1692d is meant to protect debtors from oppressive and outrageous conduct, but not from every negative consequence of debt collection. See Bieber v. Assoc. Collection Servs., Inc., 631 F… Read More

In Branco v. Credit Collection Services Inc., 2011 WL 3684503 (E.D.Cal. 2011), Judge Damrell ruled on a number FDPCA/Rosenthal Act claims.  The highlights related to the number of calls relevant to a harassment claim and to the standard applicable to proof of ‘actual damages’ under the Rosenthal Act.  As to the harassment claim, Judge Damrell held that:    In the… Read More

In Griffiths v. Sentry Credit, here, Judge Aitken found no intent to harass under FDCPA for 2 answered calls and 12 unanswered calls to the debtor. Read More

In Lynch v. Nelson Watson & Associates, LLC, 2011 WL 2472588 (D.Kan. 2011), Judge Melgren held that 56 calls in a 3 month period was not too many under the FDCPA.    In this case, the Court finds there is no evidence of an unacceptable pattern of calls. The record is lacking any indicia of the type of egregious conduct… Read More

In Clingaman v. Certegy Payment Recovery Services (S.D. Tex. 2011), here, Judge Atlas found no telephonic harassment based purely on the number of calls to the consumer because, in part, “[d]uring roughly the same time period, Plaintiff filed nine (9) similar lawsuits against various other debt collectors. Plaintiff admitted in his deposition that he kept records of telephone calls from… Read More

Judge Mueller didn't actually channel the late-George Carlin.  But, in Probasco v. IQ Data Intern., 2011 WL 1807429 (E.D. Cal. 2011), Judge Mueller held that Iqbal/Twombly require a Plaintiff to plead the profane or inappropriate language allegedly used by a debt collector. Before a debt collector's language falls within the prohibition against harassment, it must be “akin to profanity or… Read More

In Young v. Asset Acceptance, LLC, 2011 WL 1766058 (N.D.Tex. 2011), Judge Ramirez found a triable issue of fact as to whether an FDCPA claimant was harassed by telephone in connection with the collection of a debt, explaining:   To meet his summary judgment burden, Plaintiff must produce some evidence from which the intent to annoy, abuse, or harass may… Read More

In Caudell v. Financial Credit Network, Inc., 2011 WL 1377643 (E.D.Cal. 2011), Judge O’Neill applied Iqbal/Twombly to find that Plaintiff had not adequately pleaded obscene or profane communications in connection with debt collection, nor did Plaintiff’s allegations of daily telephone calls rise to the level of pleading harassment. 15 U.S.C. § 1692d(2) “was meant to deter offensive language which is… Read More

In Carman v. the CBE Group, Ltd., here, Judge Robinson found an absence of harassing intent under the FDCPA notwithstanding 149 phone call attempts in a two month period, 0-4 call attempts per day to the plaintiff's home phone number and 0-3 call attempts per day to the plaintiff's place of employment.   Judge Robinson explained:    In this case, the Court finds there… Read More

In Meadows v. Franklin Collection Service, Inc., 2011 WL 479997 (11th Cir. 2011), the Court of Appeals for the Eleventh Circuit found in an unpublished opinion that a triable issue of material fact existed as to whether 300 telephone calls over a 2 ½ year period constituted harassment.     We find that the district court erred in granting summary judgment… Read More

In Kelemen v. Professional Collection Systems, 2011 WL 31396 (M.D.Fla.), Judge Antoon ruled on what constitutes ‘obscene’ or ‘profane’ under the FDCPA 's section 1692d(2) (violation of the FDCPA for a debt collector to use “obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.”). Harkening back to Justice Stewart’s concurrence in… Read More

What is the frequency with which a creditor can attempt to reach, or actually communicate with, a debtor in connection with the collection of a consumer obligation?  The FDCPA established no statutory safe-harbor minimum or maximum call frequency; Congress specifically declined to issue bright line rules.  Recent jurisprudence has moved away from a numbers-based approach to examine the call frequency… Read More

In Jiminez v. Accounts Receivable Management, Inc., Judge Wu relied on the Arteaga decision, and granted summary judgment for a debt collector on Plaintiff's FDCPA claim, which arged that 69 calls in a 115 day period constituted harassment.  A copy of Judge Wu's order can be found here. Read More

In Brown v. Hosto & Buchan, PLLC (2010 Wl 4352932 (W.D.Tn. 2010), Judge Mays framed the issue on a Motion to Dismiss as whether "a debt collector calling a debtor's telephone seventeen times in one month and impermissibly calling a cellular telephone at least once plausibly violates section 1692d(5)".  The Court found that Plaintiff stated a claim, explaining that "the… Read More