Summary
finding 114 calls in a four-month period did not violate the FDCPA
Summary of this case from Fox v. Procollect, Inc.Opinion
Case No. 09-1047-CV-S-GAF
02-14-2011
BARRET VANHORN, Plaintiff, v. GENPACT SERVICES, LLC, Defendant.
ORDER
Presently before the Court is Defendant Genpact Services, LLC's ("Defendant") Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. (Doc. # 16). Specifically, Defendant requests this Court enter summary judgment in favor of Defendant on Plaintiff Barret VanHorn's ("Plaintiff") Complaint (Doc. # 1) alleging Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the "FDCPA"). (Id.). Plaintiff opposes. (Doc. # 20). For the reasons set forth below, Defendant's Motion is GRANTED.
DISCUSSION
I. FACTS
This case arises from Plaintiff's allegations that Defendant violated § 1692d and § 1692d(5) by "constantly and continuously" placing collection calls to Plaintiff "seeking and demanding payment for an alleged debt." (Doc. # 1, at ¶¶ 11-12, 14; see Doc. # 20). Specifically, from August 21, 2009, to December 15, 2009, Defendant, on behalf of GE Money, attempted to collect a debt owed by Plaintiff to GE Money. (Doc. # 20, p. 2-3; see VanHorn Deposition ("VanHorn Depo."), p. 14-15). Although Plaintiff requested documentation of the debt owed, he does not actually contest that he owed money to GE Money. (Id., p. 3, n.1). In fact, he testified that he believed Defendant was attempting to collect approximately $1,500 owed on the GE Money account. (VanHorn Depo., p. 25). At all relevant times, Defendant called Plaintiff's cellular phone number; Defendant used its same company number to call Plaintiff, which appeared on Plaintiff's caller identification ("caller ID"); and seemingly Plaintiff recognized the number as Defendant's number. (Doc. # 17, p. 2; see VanHorn Depo., p. 48-52).
During the four (4) month period, Defendant placed approximately one-hundred-fourteen (114) calls to Plaintiff, calling almost daily. (Doc. # 20, p. 1). The earliest Defendant called was 8:00 a.m, and the latest call was placed at 8:52 p.m. (VanHorn Depo., p. 53; see Doc. # 20-2). The Record indicates on fourteen (14) days of the four (4) month period, Defendant called Plaintiff more than once. (See Doc. # 20-2). On one (1) occasion, Defendant called Plaintiff up to six (6) times in a twenty-four (24) hour period. (Doc. # 20-1, ¶ 14). On October 30, 2009, Defendant called Plaintiff four (4) times within three (3) hours. (Doc. # 20, p. 3; see Doc. # 20-2). Plaintiff found Defendant's continuous calls harassing, oppressive, and abusive. (VanHorn Depo., p. 55-56). Other than repeatedly calling him, Plaintiff has no evidence of Defendant's intent to harass, annoy, or abuse him. (Id., p. 57-59). As a result of Defendant's calls, Plaintiff claims he had to turn his cellular phone ringer off, causing him to miss business calls. (Doc. # 20, p. 3; see VanHorn Depo, p. 57). However, from 2008-2010, multiple debt collectors were contacting VanHorn in the attempt to collect other debts owed by Plaintiff. (VanHorn Depo., p. 23-28).
Approximately four (4) debt collectors, including Defendant, Berman & Rabin, NCO, and Allied Interstate, were contacting Plaintiff in the attempt to reach Plaintiff and collect debts owed during the same time period. (See id.).
Defendant has a policy where it ceases all calls after receiving a "cease-and-desist" written request from a debtor or the debtor's attorney pursuant to § 1692c(c), or after two (2) oral requests by a debtor or debtor's attorney who have identified themselves to Defendant. (Veerapaneni Declaration, ¶¶ 6-8). The Record indicates during the four (4) month period, Plaintiff and Defendant never had a substantive conversation regarding the debt or collection attempts. Defendant never left messages when Plaintiff did not answer. (VanHorn Depo, p. 54). Plaintiff answered approximately eight (8) of Defendant's calls. (Doc. # 20., p. 3). The dates include: September 02, September 06, September 07, September 18, September 25, September 30, October 30, and November 24 of 2009. (Id.). On the few occasions Plaintiff answered Defendant's calls, Plaintiff either ended the call immediately or quickly ended the call after hearing Defendant identify itself. (VanHorn Depo., p. 42, 48-51). Multiple times Plaintiff orally requested Defendant to stop calling. (Doc. # 20, p. 3; see VanHorn Depo, p. 42, 44). However, Plaintiff did not identify himself to Defendant on the occasions he did answer Defendant's calls. (Doc. # 17, p. 3; see VanHorn Depo, p. 42, 48-49). Further, Defendant never received a "cease-and-desist" letter from Plaintiff. (Doc. # 17, p. 6; see Veerapaneni Declaration, ¶ 11). Other than telephone calls, no other form of communication between the parties is indicated in the Record.
II. LEGAL STANDARD
Summary judgment should be granted if the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). On summary judgment, a district court must view the facts "in the light most favorable to the nonmovant, giving it the benefit of all reasonable inferences to be draw from the facts." Woodsmith Publ'g Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir. 1990). A moving party is "entitled to judgment as a matter of law" if the nonmoving party fails to sufficiently demonstrate an essential element of a claim with respect to which it has the burden of proof. Id. (citing Celotex, 477 U.S. at 323). Summary judgment should not be granted if a reasonable jury could find for the nonmoving party. Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. ANALYSIS
"The FDCPA is designed to protect consumers from abusive debt collection practices and to protect ethical debt collectors from competitive disadvantage." Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1054 (8th Cir. 2002); see 15 U.S.C. § 1692(e) ("[T]o insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged[.]"). FDCPA claims are viewed from the "unsophisticated consumer" perspective. See Peters, 277 F.3d at 1055 (citing Duffy v. Landberg, 215 F.3d 871 (8th Cir. 2000) (adopting the "unsophisticated consumer" test to determine whether the statutory purposes under § 1692(e) are violated)); see also Gammon v. G.C. Servs. Ltd. P'ship., 27 F.3d 1254, 1257 (7th Cir. 1994). The "unsophisticated consumer" test protects consumers of below average sophistication or intelligence. Peters, 277 F.3d at 1055. However, there is an objective element of reasonableness. See id. (citations omitted).
Generally, § 1692d prohibits debt collectors from engaging in harassing, oppressive, or abusive conduct in connection with debt collection. A non-exhaustive list of conduct constituting harassment, oppression, or abuse 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 the called number." § 1692d(5). Section 1692d also prohibits, among other things, egregious conduct such as the "use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person," and use of obscene or profane language as a natural consequence of abuse. See § 1692d(1)-(6). Section 1692d must be read in its entirety to ascertain what constitutes harassment, oppression, or abuse in this context. See U.S. Nat'l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) ("Statutory construction is a holistic endeavor, and, at a minimum, must account for a statute's full text . . . and subject matter.").
Plaintiff claims Defendant's continuous calls constitute harassment, oppression, or abuse in violation of the FDCPA. Ordinarily, whether conduct harasses, oppresses, or abuses will be a question for the jury." Jeter, 790 F.2d at 1179 (11th Cir. 1985). Yet, not all circumstances of persistently calling a debtor constitute harassment. See Joseph v. J.J. Mac Intyre Co., LLC, 238 F. Supp. 2d 1158 (N.D. Cal. 2002) ("Whether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls."). When reading § 1692d in its entirety, it is evident absent egregious conduct or intent to annoy, abuse, or harass, a debt collector does not violate the FDCPA by persistently calling in the attempt to reach a debtor regarding a debt owed and due. A survey of cases herein supports such reading of § 1692d.
For instance, a genuine issue of material fact existed precluding summary judgment where a debt collector made over ninety (90) calls to debtor's home, allowed the phone to ring repeatedly when calling and called back immediately after debtor hung up, failed to identity itself during these calls, the content of the calls where harassing in nature, and the debt collector repeatedly called debtor after receiving a "cease-and-desist" letter from debtor. Fausto v. Credigy Sevrs. Corp., 598 F. Supp. 2d 1049 (N.D. Cal. 2009). In another case, a court determined a debt collector violated the FDCPA where the debt collector repeatedly called debtor and his supervisor at his workplace, the debtor informed the debt collector such calls to his work place were prohibited, and the debt collector labeled debtor as a "liar" during their communications. Chiverton v. Fed. Fin. Grp. Inc., 399 F. Supp. 2d 96 (D. Conn. 2005); see Wineberry v. United Collection Bureau, Inc., 697 F. Supp. 2d 1279 (M.D. Al. 2010); Akalwadi v. Risk Mgmt. Alts., Inc., 336 F. Supp. 2d 492 (D. Md. 2004); see also Kuhn v. Account Control Tech. Inc., 865 F. Supp. 1443, 1453 (D. Nev. 1994) (finding a genuine issue of material fact where the debt collector threatened debtor with legal action, repeatedly called up to six (6) times within twenty-four (24) minutes in a single day, repeatedly called debtor's place of employment, and continued to call debtor after debtor informed debt collector she was represented by an attorney).
Contrarily, a debt collector does not violate § 1695d as a matter of law where a debt collector calls on a daily or near daily basis absent evidence of egregious conduct or intent to harass. See § 1692(e); see also Arteaga v. Asset Acceptance, LLC, - - - F. Supp. 2d - - -, 2010 WL 3310259 at * 7 (E.D. Cal. 2010) (determining there is no triable issue of fact whether a debt collector violated § 1695d and 1695d(5) absent evidence beyond daily or near daily telephone calls to a debtor). Nor does a debt collector necessarily engage in harassment by placing one (1) or more phone calls in a single day after unsuccessful attempts to reach the debtor if such calls are unaccompanied by harassing conduct, such as threatening messages. See Slatzman v. I.C. System, Inc., 2009 WL 3190359, *7 (E.D. Mich. 2009); see also Tucker v. The CBE Grp., Inc., 710 F. Supp. 2d 1301 (M.D. Fla. 2010) (determining no genuine issue of material fact existed whether debt collector intended to harass debtor when debt collector made fifty-seven (57) phone calls to debtor, including seven (7) in a single day, because debt collector never spoke with debtor, was never asked to cease calling, only left six (6) messages for debtor, and never called back on the same day a voice message was left for debtor); Udell v. Kan. Counselors, Inc., 313 F. Supp. 2d 1135 (D. Kan. 2004) (reasoning merely calling a debtor without leaving messages does not constitute harassment under the FDCPA).
Further, absent evidence of egregious conduct or intent to harass, a debt collector does not necessarily violate § 1692d where attempts to contact a debtor are successful and the communications are unpleasant. See Thomas v. LDG Financial Services, Inc., 463 F. Supp. 2d 1370 (N.D. Ga. 2006) (finding a debt collector's conduct did not rise to the level of actionable harassment prohibited by the FDCPA despite debt collector's employee telling debtor they would somehow collect debtor's money; yelled to debtor that Georgia was a garnishable state, and then hung up on debtor; and asked debtor what her problem was since she [debt collector] was making the same salary as debtor and was paying her bills unlike debtor).
There is no evidence in the Record from which a reasonable trier of fact could infer that Defendant acted with the requisite intent to "annoy, abuse, or harass," and therefore, Defendant's conduct does not constitute harassment under § 1629d(5) as a matter of law. Intent to annoy, abuse, or harass cannot be inferred from the simple fact Defendant called Plaintiff daily or near daily, and occasionally called more than once in a single day after unsuccessful attempts to reach Plaintiff. At no time did Defendant immediately recall Plaintiff after Plaintiff initially hung up; call Plaintiff at his employment; or make threatening, profane, or insulting statements. Defendant never had a substantive communication with Plaintiff or left a message for Plaintiff. Additionally, at least three (3) other debt collectors were also calling Plaintiff attempting to collect debt owed during the same time period. (See VanHorn Depo., p. 23-28). Thus, it was not just Defendant causing Plaintiff's telephone to ring. Plaintiff fails to point to evidence beyond Defendant's persistent calls showing intent to annoy, abuse, or harass. In fact, Plaintiff stated he has no evidence Defendant intended to annoy, abuse, or harass him. (See VanHorn Depo., p. 57-59).
Moreover, although Plaintiff believed Defendant's calls were harassing, oppressive, and abusive, the "unsophisticated consumer" test is not solely a subjective test. Rather, the test contains an objective element of reasonableness. See Peters, 277 F.3d at 1055. Defendant's persistent, yet unsuccessful attempts to reach Plaintiff were legitimate and reasonable. Plaintiff essentially argues the FDCPA is violated anytime a debt collector persistently attempts to contact a debtor, and the debtor subjectively feels he or she is being harassed. This argument is unconvincing and does not comport with the language or purpose of the FDCPA or case law. The FDCPA does not prohibit debt collectors from employing legitimate, reasonable, non-abusive means to collect debt. See § 1692(e). Rather, the FDCPA purports to protect such conduct. See id. Therefore, as a matter of law, Defendant's conduct alone does not raise a genuine issue of material fact.
CONCLUSION
Viewing the evidence in the light most favorable to Plaintiff and through the perspective of the unsophisticated consumer, Plaintiff fails to raise a genuine issue of material fact that Defendant violated § 1692d as a matter of law. For these reasons, and the reasons set forth above,
Defendant's Motion is GRANTED.
IT IS SO ORDERED.
s/ Gary A. Fenner
Gary A. Fenner, Judge
United States District Court DATED: February 14, 2011