Debt collector, Diversified Consultants, Inc., held Not Liable Under FDCPA for 38 Phone Calls Made in a 3-month Time Span

To reiterate, it is just as important to see why fair debt collection cases fail as it is to see why they succeed.

This blog summarizes a Northern District, NY decision[1] that dismissed a case complaining of repeated telephone calls.

The calls at issue:

• 6 collection calls made in August 2012;
• 17 calls made in September 2010; and
• 15 calls made in October 2012.

The plaintiffs' claims:

1. Diversified violated FDCPA § 1692d(5) for causing Plaintiffs' telephone to ring repeatedly and continuously with the intent to annoy, abuse, and harass; and
2. Diversified violated FDCPA § 1692d by engaging in conduct the natural consequence of which is to harass, oppress or abuse.

The parties conducted discovery, including the deposition of Diversified's collection employee. Oddly, the plaintiffs did not submit affidavits of their own in support of their case. The instant decision granted summary judgment to Diversified.

Regarding the first claim (causing phone to ring repeatedly with the intent to annoy, abuse, and harass), courts generally consider the "volume" and "pattern" of calls, but courts disagree as to what volume or pattern is sufficient to survive a summary judgment motion.

This intent requirement, an aberration of the FDCPA's general strict liability nature, must be supported by facts that infer an intent to annoy, harass, and abuse.

Factual inquiries seeking to answer the intent requirement have included:

• whether the debtor ignored the collection calls;
• whether the debtor requested a cessation of calls;
• whether the collector made numerous calls in a single day;
• whether the collector called third parties such as the plaintiff's employer; and
• whether the collector immediately called back after debtor hung up the phone.

The following facts in this case, the court held, inferred that the collector called to establish further communication – not to annoy, abuse, or harass:

• On all but 3 occasions, the collector placed one call per day.
• The collector never placed more than two calls in a day. On the days two calls were made, they were at least one and a half hours apart.
• Plaintiff answered only one of the calls.
• All voicemails appeared to be FDCPA compliant.

The court found that not only do the above facts negate the claim that Diversified possessed the intent to annoy, abuse, or harass – but the facts also diffuse the broader FDCPA § 1692 claim that Diversified engaged in conduct "the natural consequence of which is to harass, oppress, or abuse" the plaintiffs.

To this end, the court held, "Section 1692d is meant to protect debtors form oppressive and outrageous conduct, but not from every negative consequence of debt collection." Even viewed under the "lease sophisticated consumer" standard, Diversified's calls did not violate either provision.

Fair Debt cases premised solely on telephone calls are risky because the evidence in controversey is usually the plaintiffs' memory versus the collector's business records. I would be much more comfortable with another inescapable violation, for example a documentary misrepresentation.