Why Courts Have Read the FDCPA Narrowly to Prohibit Only Outrageous Language

Tomio Narita

Debt collectors are being sued in courts across the country for allegedly violating the FDCPA by making harassing and abusive phone calls to consumers.  No clear rules exist on what constitutes harassing or abusive language, however, and the language of the FDCPA does not shed much light on this subject.

Section 1692d provides that collectors 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.”  See 15 U.S.C. § 1692d.  In addition, section 1692d(2) of the Act prohibits debt collectors from using “obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.”  Id. at § 1692d(2).  But what exactly does this mean?  When has a collector stepped over the line from making an appropriate demand for payment into harassing or abusive conduct?

Surprisingly few circuit courts have interpreted section 1692d of the FDCPA, but the courts that have done so have construed it very narrowly.  The leading case is Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (7th Cir. 1985), where the Seventh Circuit held that a letter stating that an account would be referred for legal action, and that this “may cause you embarrassment, inconvenience and further expense,” did not violate section 1692d.  Id. at 1178-79.  The description of the potential impact of a lawsuit was a “true statement” and did not create a “tone of intimidation.”  Id. at 1179.  The statement did not violate section 1692d(2), because that subsection was “meant to deter offensive language which is at least akin to profanity or obscenity.  Such offensive language might encompass name-calling, racial or ethnic slurs, and other derogatory remarks which are similar in their offensiveness to obscene or profane remarks.”  Id. at 1178.  It was no surprise, therefore, in Horkey v. J.V.D.B. & Associates, Inc., 333 F. 3d 769 (7th Cir. 2003), when the Seventh Circuit affirmed a trial court ruling that section 1692d(2) was violated.  There, after the debtor explained she could not discuss the debt a work, the collector called back and left a message with a coworker stating “tell Amanda to stop being such a [expletive] bitch.”  Id. at 773.

More recently, the Sixth Circuit held in Harvey v. Great Seneca Fin. Corp., 453 F.3d 324 (6th Cir. 2006), that “the filing of a debt-collection lawsuit without the immediate means of proving the debt does not have the natural consequence of harassing, abusing, or oppressing a debtor” and thus does not violate section 1692d.  Id. at 330.  As the Harvey Court observed:  “Any attempt to collect a defaulted debt will be unwanted by a debtor, but employing the court system in the way alleged by Harvey cannot be said to be an abusive tactic under the FDCPA.”  Id. at. 330-31.

District courts have also read section 1692d narrowly, recognizing that it prohibits “only oppressive and outrageous conduct,” and that it was “not intended to shield even the least sophisticated recipients of debt collection activities from the inconvenience and embarrassment that are natural consequences of debt collection.”  Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 394 (D. Del. 1991) (attempts to collect debt from wrong individuals did not violate section 1692d); see also Bieber v. Associated Collection Servs., Inc., 631 F. Supp. 1410, 1471 (D. Kan. 1986) (asking if debtor had hired a bankruptcy attorney did not violate section 1692d:  “[Section 1692d] prohibits a debtor’s tender sensibilities only from oppressive and outrageous conduct.  Some inconvenience to the debtor is a natural consequence of debt collection.”); Shuler v. Ingram & Assocs., 710 F. Supp. 2d 1213, 1222 (N.D. Ala. 2010) ( references to potential garnishment and liens were “probably unpleasant” but were not sufficient to support a claim:  “Courts have construed narrowly the type of conduct that violates § 1692d( 2).”)).

Given that section 1692d only prohibits outrageous language and conduct, courts have held that laughing at a debtor during a collection call is not sufficient to support a section 1692d claim. See, e.g., Bassett v. I.C. Sys., Inc., 715 F. Supp. 2d 803, 809 (N.D. Ill. 2010) (laughing may be “rude” but does not amount to a section 1692d violation); Gallagher v. Gurstel, Staloch & Chargo, P.A., 645 F. Supp. 2d 795, 799  (D. Minn. 2009) (laughing is not even “remotely comparable” to type of conduct that violates section 1692d).

In addition, courts have held that calling a debtor a “liar” does not violate section 1692d.  See, e.g., Bassett, 715 F. Supp. 2d at 809 (calling debtor “liar” and accusing him of making excuses to avoid payment did not violate section 1692d(2)); Guarjardo v. GC Servs., LP, 2009 WL 3715603 (S.D. Tex. Nov. 3, 2009) (calling debtor “liar,” demanding “payment in full within 24 hours or else,” and saying “I can tell the kind of life you live by the fact that you don’t pay your bills on time” not enough to prove section 1692d claim); Mammen v. Bronson & Migliacco, LLP, 715 F. Supp. 2d 1210, 1218 (M.D. Fla. 2009) (telling debtor “You’re lying, this is your account and you have to pay it” and hanging up not sufficient to prove a section 1692d claim); Montgomery v. Florida First Financial Group, Inc., 2008 WL 3540374 (M.D. Fla. Aug. 12, 2008) (calling debtor a “liar” and her mother a liar not enough to prove section 1692d claim).

Some courts have held that yelling at a debtor is not a violation of section 1692d. See, e.g., Kelemen v. Professional Collection Sys., 2011 WL 31396 (M.D. Fla. Jan. 4, 2011) (telling debtor to “pay your damn bills” was rude but not obscene or profane under section 1692d(2); noting that profane means “importing an imprecation of divine vengeance or implying divine condemnation or irreverence toward God or holy things.”); Unterreiner v. Stoneleigh Recovery Assocs., LLC, 2010 WL 2523257, *1 (N.D. Ill. June 17, 2010) (screaming at debtor, saying you owe “all kinds of money” and asking “how could you go and max out a card like that?” was “rude and unpleasant” but did not state a section 1692d claim); Thomas v. LDG Fin. Servs. LLC, 463 F. Supp. 2d 1370, 1373 (N.D. Ga. 2006) (yelling at debtor “Georgia is a garnishable state” and hanging up did not violate section 1692d).

Debt collectors should always treat consumers with dignity and respect during the collection process.  As courts throughout the country have recognized, however, section 1692d of the FDCPA is narrow in scope, and only prohibits the use of truly outrageous language – such as profanity, racial or ethnic slurs or other derogatory remarks – which has the natural tendency to harass, oppress or abuse the listener.

Tomio Narita is a partner of Simmonds & Narita LLP, a California law firm specializing in defending claims arising under the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and the Rosenthal Act.