Court Rules 125 Calls in 135 Days is Not FDCPA Violation

A United States District Court judge granted a collection agency’s motion for summary judgment in a Fair Debt Collection Practices Act (FDCPA) case alleging that the defendant violated 15 U.S.C. §§ 1692d and 1692d(5) by repeatedly contacting Plaintiff on her cellular telephone, as well as calling multiple times a day. The case is Reed v. IC System, Inc. (United States District Court, Western District of Pennsylvania, Case No. 3:15-279). 

A copy of the opinion can be found here.

Background

In her complaint, Plaintiff, Laura Reed, alleged “that between December 2014 and March 2015, Defendant, a 'debt collector' under the Act, violated [15 U.S.C.] §§ 1692d and 1692d(5). . . by repeatedly contacting Plaintiff on her cellular telephone, more than eighty-four (84) times over a four (4) month period [beginning in December 2014 and lasting through March 2015], as well as calling multiple times a day.”

Plaintiff also alleges that Defendant “failed to send her written notification of her rights, along with information about the debt, within five days of its initial communication with her, as required by 15 U.S.C. § 1692g(a)." 

After Discovery was completed the following facts were deemed to not be in dispute:

• Defendant attempted to reach Plaintiff by calling her and sending her a notice dated December 9, 2014, to the address where she was living at the time.
• Although Plaintiff claims that she never received the notice, there is no evidence that it was ever returned to Defendant as undeliverable.
• Defendant’s account notes reflect that Defendant attempted to call Plaintiff’s cell phone 125 times over a span of 135 days, beginning on December 8, 2014, and ending on April 22, 2015.
• There were 35 days on which Defendant called at least two times, and three days on which Defendant called three times.
• All of the calls went to Plaintiff’s voicemail, and on one occasion, Defendant left a message.
• According to the account notes, the calls ceased after Plaintiff’s attorney wrote a letter to Defendant, requesting that it stop all communication with Plaintiff.
• Once she started receiving the calls, she downloaded a cell phone app called “Blocked Calls Get Cash.”
• From that point on, when Plaintiff received a call on her cell phone, the app “would ask whether it was a personal call or whether it was a debt collector or a telemarketer.”
• Plaintiff explained that her phone would “ring for, like, a second or two” before blocking the call, and then the app “would give [her] a notification of a blocked call.”
• Plaintiff testified that she had the option of answering the call before it was blocked, “but most of the time, when [she] got the phone calls, [she was] at work, and [she could not] answer [the phone].”
• Plaintiff never requested the name of the creditor in writing, nor did she request that Defendant stop making the calls.

The court noted two additional items in footnotes:

• Plaintiff has filed six similar law suits alleging FDCPA violations against other debt collectors during the same time period.
• According to its Web site, “[t]he Block Calls Get Cash app was developed to help [users] effortlessly exercise [their] rights under the Telephone Consumer Protection Act (TCPA). If [a consumer] receives a robocall, BCGC prompts [the consumer] to answer a few simple questions” and the call is logged. Then that “information is reviewed by Lemberg Law, the most active consumer law firm in the country[,]” for violations of the TCPA.

IC System moved for summary judgment.

Editor’s Note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

Defendant made two arguments in support of its motion. First, that Plaintiff lacks Article III standing. Second, Defendant contended that, assuming Plaintiff had standing, she had nonetheless failed to adduce sufficient evidence to support either of her claims under the FDCPA.

The Court first addressed the Article III standing issue. The court discussed the Supreme Court decision in Spokeo Inc. v. Robbins, (136 S. Ct. 1540 (2016) and the need for plaintiff’s alleged injury to be “concrete and particularized” rather than a “bare procedural violation.”

The court determined that Plaintiff had alleged injury in precisely the form the FDCPA was intended to guard against and thus had Article II standing to bring the action.

The court then turned to the merits of Plaintiff’s claim. As to Count 1 the opinion notes:

“15 U.S.C. §§ 1692d prohibits debt collectors from engaging 'in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.' In addition to that general prohibition, § 1692d(5) specifically prohibits a debt collector from 'causing a telephone to ring . . . repeatedly or continuously wit.'

Generally, the question of whether a debt collector acted with the necessary intent is left for the jury. A court, however, may grant summary judgment if a Plaintiff fails to 'provide evidence such that a reasonable juror could conclude that such calls were caused by Defendants with an intent to harass.' Although '[t]here is no consensus as to the amount and pattern of calls necessary' to survive summary judgment, it is clear that 'the number of calls alone cannot violate the FDCPA; a plaintiff must also show some other egregious or outrageous conduct in order for a high number of calls to have the ‘natural consequence’ of harassing a debtor.'

In this case, the Court finds that no reasonable jury could infer that Defendant acted with the intent to 'annoy, abuse, or harass' Plaintiff. To be sure, the number of calls does seem relatively high: Defendant called 125 times over the span of 135 days – more than once per day on 35 days, and three times per day on three days. Nevertheless, Plaintiff has not adduced evidence of egregious conduct on the part of Defendant.

First, the calls were never back-to-back; there was always at least two hours between them, and often times, more than that. Second, the calls took place between the hours of approximately 8 a.m. and 7:45 p.m., with the vast majority taking place within ordinary business hours. Third, Defendant only left one message during the entire four month span, and did not call Plaintiff again for three days after leaving that message. Fourth, Defendant never communicated directly to Plaintiff. Indeed, Plaintiff was able to block the calls following just a few rings via the “Block Calls Get Cash” app on her cell phone, so Defendant was put in a position where it effectively had to place repeated calls in order to try to reach her. Finally, the calls ceased as soon as Plaintiff’s attorney contacted Defendant on April 22, 2015.”

As to Count 2, the court held:

“The evidence submitted by Defendant in support of its motion shows that the statutorily required notice was sent to Plaintiff at her correct address on December 9, 2014, which was just one day after the initial communication with Plaintiff. The notice was not returned as undeliverable. Plaintiff, by contrast, has not adduced any evidence of her own that suggests the requisite notice was not sent to her correct address or that it was returned to Defendant as undeliverable. Her testimony that she never received the notice is simply not enough to create a genuine issue of material fact since the statute does not require that the notice be received.”

insideARM Perspective

This is a positive case for the industry. The court recognized and understood that the relevant provision of the FDCPA requires “intent to annoy, abuse, or harass.” 

The case is also an endorsement for policies, procedures and technology that control call attempts and voicemail messages.

Kudos to IC System. The company clearly had controls in place. As noted in the opinion, the calls were never back-to-back; there was always at least two hours between them, and often, more than that. The call attempts took place between the hours of approximately 8 a.m. and 7:45 p.m., with the vast majority taking place within ordinary business hours. The company only left one message during the entire four-month span, and did not call Plaintiff again for three days after leaving that message and, finally, the calls ceased as soon as Plaintiff’s attorney contacted the company on April 22, 2015. 

In the CFPB’s Outline of Proposed Rules, the bureau attempts to define “intent” by creating specific call limitations.  It could be argued that “intent to annoy, abuse, or harass” is better determined on a case by case basis.  It could also be argued that the number of call attempts made by all agencies might be reduced if the specific content of voice messages was defined as suggested by the CFPB in that same Outline.

Finally, insideARM did not research the other six FDCPA lawsuits filed by the plaintiff. Thus, it is unclear whether plaintiff received paydays in those other cases or whether defendants in those cases will use this decision to defend the actions.