In Shuler v. Ingram & Associates, 2010 WL 1833626 (N.D.Ala. 2010), Judge Kallon addressed what constitutes harassment, both in substance and frequency. As to substance, Judge Kallon listed to audiotapes and found that testiness and advising a consumer of the consequences of their (in)action did not violate the FDCPA.
Section 1692d(2) forbids debt collectors from “engaging in any conduct the natural consequence of which is to harass, oppress or abuse” any person, including “the use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.” This subsection “was meant to deter offensive language which is at least akin to profanity or obscenity … [which] might encompass name-calling, racial or ethnic slurs, and other derogatory remarks which are similar in their offensiveness to obscene or profane remarks.” Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1178 (11th Cir.1985). Significantly, a debt collector informing a consumer that legal proceedings could cause her “embarrassment, inconvenience, and further expense is a true statement … does not create a tone of intimidation,” and “such consequences of a debt collection … lawsuit are so commonplace that even a consumer susceptible to harassment, oppression, or abuse would not have been harassed, oppressed, or abused by the statement in and of itself.” Id. at 1179 (citations and quotations omitted); see also Wright v. Credit Bureau of Ga., Inc., 555 F.Supp. 1005, 1007 (N.D.Ga.1983) (holding that a general threat that debtor’s failure to pay his bills would adversely affect his credit rating is not a violation of the FDCPA). ¶ . . . This court has reviewed the statements and conduct plaintiffs challenge, listened to the two audio-tapes, and read the transcripts (including the third conversation plaintiffs allegedly only disclosed in response to Ingram’s summary judgment motion), and finds no violation of 1692d(2). . . . The court finds that, as in Jeter, Wright, and Thomas, Ingram’s employees only described to plaintiffs the likely consequences of their failure to pay the alleged debt and engaged in no abusive conduct. Indeed, the statements merely outlined the types of problems a consumer faces if the creditor files a lawsuit to collect on the debt, and as such, comply with § 1692d(2). Jeter, 760 F.2d at 1179. Moreover, the tape recordings and corresponding transcripts Roger Shuler made demonstrate clearly that Ingram’s employees never used obscene, profane, or abusive language (rather, plaintiff Roger Shuler used obscene language (see doc. 71-2 at 3)), and while plaintiffs allege that Ingram’s employees were “testy,” “abusive,” and “smart-alecky,” this was in connection to Roger Shuler’s insistence that they help him take on lawyers and judges in an unrelated matter. While it is probably unpleasant to hear about the garnishment of wages or the placement of a lien on one’s residence, these are remedies available to creditors. As such, there is no violation of § 1692d(2).
As to frequency of communications, Judge Kallon found no violation either, explaining:
As to the number of calls, the undisputed facts show that Ingram initiated telephone contact with Roger Shuler on five occasions over a 17-day period, never called repeatedly at the same location, and only made contact with plaintiffs once (and for less than five minutes) on a call Ingram initiated. The court finds that, collectively, these five telephone call attempts do not violate § 1692d(5), as they were not abusive, annoying, or harassing. Compare Udell v. Kan. Counselors, Inc., 313 F.Supp.2d 1135, 1143 (D.Kan.2004) (four automated calls over seven days without leaving a message did not, as a matter of law, constitute harassment under the FDCPA); Kuhn v. Account Control Tech., Inc., 865 F.Supp. 1443, 1453 (D.Nev.1994) (holding that calling a consumer at her place of employment back two times in a five-minute period after she had hung up on the collector constituted harassment).
Finally, Judge Kallon held that merely advising the debtor of the consequences of their actions did not violate the FDCPA:
Courts are clear that “merely advising the debtor of the agency’s options with which to pursue the debt is the sort of truism that is legally insufficient to violate § 1692e.” Sparks v. Phillips & Cohen Assoc., LTD., 641 F.Supp.2d 1234, 1249 (S.D.Ala .2008). In Sparks, the plaintiff alleged that the debt collector’s statement that it could force her to sell her deceased mother’s house in probate to pay her mother’s debts constituted a deceptive threat under § 1692e(4). Id. The court disagreed and granted summary judgment, finding that the statement constituted neither a threat nor a false representation, but rather an “innocuous statement” of defendant’s “legal rights.” Id. The court also rejected plaintiff’s contention that defendant’s statement amounted to a threat to take action that it could not legally take, or that it did not intend to take, in violation of § 1692e(5). Id. The court held that no one could reasonably construe the statement as a threat, or a “threat that defendant never intended to pursue.” Id. at 1250. Rather, the statement “placed [plaintiff] on notice of [defendant’s] options,” and because the creditor could legally seek to sell the debtor’s home, it could not constitute a threat for purposes of § 1692e(5). Id. at 1250. ¶ Like the defendant in Sparks, Ingram, as a debt collection law firm, is legally entitled to seek the seizure, garnishment, or attachment of the property or wages of Roger Shuler to collect on the American Express debt. The statements that Ingram may place a lien on plaintiffs’ property, garnish Shuler’s wages, that Ingram prosecutes debts like his, and always wins since the debt is owed, do not constitute threats or actions that Ingram could not or did not intend to take. Rather, the statements placed plaintiffs on notice of options legally available to Ingram. See Sparks, 641 F.Supp.2d at 1249-50. As such, they are not prohibited by §§ 1692e(4) and (5).