49 Call Attempts in 18 Days with No Evidence of Intent to Harass = No FDCPA Violation

On February 27, 2017, a United States district court judge in California issued Findings of Fact and Conclusions of Law in a bench trial that found no FDCPA violation by a debt collector who had made 49 call attempts to a consumer in 18 days.  

The case is Hinderstein v. Advanced Call Center Technologies, (Case No. 15-10017, U.S. District Court, Central District of California.) A copy of the Finding of Fact and Conclusions of Law can be found here.

Background

Plaintiff, Robert Hinderstein, had a GAP-branded credit card, issued by Synchrony Financial (Synchrony).  In or around early 2015, plaintiff was delinquent on his GAP credit card and maintained an outstanding balance of approximately $2,202.00.

On April 3, 2015, Synchrony placed plaintiff’s credit card account with defendant for collections. Defendant engages in the collection of debts on behalf of creditors, including Synchrony.

On the same date, defendant mailed plaintiff a Debt Validation Notice to the address provided for plaintiff by Synchrony. This was the only written communication between the parties prior to the commencement of this action.

Thereafter, defendant attempted to place telephone calls to plaintiff for the purpose of collecting plaintiff’s debt on behalf of Synchrony. From April 23, 2015 through May 10, 2015, defendant called plaintiff at least 49 times.

All telephone calls from defendant to plaintiff were placed between 8:00 a.m. and 9:00 p.m., pacific standard time, to his cellular telephone. Defendant never placed more than five telephone calls to plaintiff in a single day and allowed at least 90 minutes to elapse between each telephone call that it placed to plaintiff. Defendant never intentionally left voicemails for plaintiff.

The first and only call from defendant that plaintiff answered was placed on May 10, 2015 at approximately 11:05 a.m., pacific time. During this call, plaintiff advised defendant’s agent that he was going through a divorce and that he did not have any money to pay the outstanding debt. He asked for defendant to stop calling. Prior to that date and that call, plaintiff never asked defendant to stop calling him and following this conversation, defendant made no further telephone calls to plaintiff.

On December 31, 2015, plaintiff filed this action, alleging violations of the Fair Debt Collection Practices Act (FDCPA) and the Rosenthal Fair Debt Collection Practices Act (RFDCPA).

The parties agreed to waive a jury trial and consented to proceed before the Magistrate Judge. On December 30, 2016, the parties filed cross-motions for summary judgment. After reviewing the cross-motions for summary judgment, the Court held a telephonic status conference on January 30, 2017, during which the parties clarified and mutually agreed that they desired a bench trial on the papers. 

The Judge’s Findings

The Honorable David T. Bristow, United States Magistrate Judge authored the Findings of Fact and Conclusions of Law. Judge Bristow found:

“Section 1692d of the FDCPA 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.” 15 U.S.C. § 1692d. The statute includes a non-exhaustive list of conduct that constitutes harassment, oppression, or abuse, including “[c]ausing 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.” 15 U.S.C. § 1692d(5). 

Although the Ninth Circuit has not addressed the required proof of intent to annoy, abuse, or harass under Section 1692d(5), district courts generally agree that intent may be inferred from circumstantial evidence, such as the nature, pattern, and frequency of the debt collection calls. However, there appears to be some disagreement as to the specific nature, pattern, and volume of calls that are sufficient to demonstrate a violation of Section 1692d(5). Based on a survey of cases addressing FDCPA liability, it appears that, absent egregious conduct or an intent to annoy, abuse, or harass a debtor, merely calling a debtor repeatedly, even multiple times in a single day, does not violate the FDCPA.

Here, plaintiff contends that defendant violated the FDCPA by repeatedly and continuously calling him approximately 49 times in a 18-day period. Although the number of calls does seem relatively high, plaintiff has not adduced evidence of egregious conduct on the part of defendant. All calls were made between 8:00 a.m. and 9:00 p.m., defendant allowed at least 90 minutes to elapse between each call, made no more than five calls in a single day, and did not call plaintiff’s work, family, or friends.

The evidence establishes that plaintiff answered only one of defendant’s telephone calls, a telephone call on May 10, 2015. Until that date, defendant never left any messages for plaintiff. During the May 10, 2015 telephone call, plaintiff acknowledged the debt and asked defendant to cease calling. Plaintiff does not contend that defendant threatened him, or otherwise made any improper statements during this telephone call. Defendant complied with plaintiff’s request and immediately ceased calling him. At no time prior to this telephone conversation did plaintiff notify defendant that he felt harassed or requested that defendant stop calling.

Based on the facts and circumstances in this case, the Court concludes that defendant’s conduct did not constitute harassment, oppression, or abuse in violation of the FDCPA.”

insideARM Perspective

Judge Bristow’s Findings are thoughtful and common sense. In this case there was clearly no intent to harass or annoy the plaintiff. Though the defendant called 49 times in 18 days, the defendant never left a voice message and stopped calling immediately after requested to do so by the plaintiff.

It is interesting to note in the Findings the Judge took judicial notice of other, similar FDCPA lawsuit filed by the plaintiff. Judge Bristow wrote:

“According to two other lawsuits filed by plaintiff in the Central District of California, plaintiff claims that at least two other debt collectors also were calling him during this time period attempting to collect debts owed by plaintiff.” 

It is unclear whether that fact impacted the judge’s decision. Though Bristow mentions the other debt collectors briefly when he wrote:

“Indeed, at least two other debt collectors were calling plaintiff during this same time period. Thus, it was not merely defendant that was causing plaintiff’s telephone to ring.”

This is a positive decision for the ARM industry.