In Schwartz-Earp v. Advanced Call Center Technologies, LLC, 2016 WL 899149, at *1-2 (N.D.Cal., 2016), Magistrate Judge James denied summary judgment to a debt collector under the FDCPA, but granted summary judgment against the Plaintiff on her TCPA/common law claims. The facts were as follows:
On or about February 3, 2014, Plaintiff applied in-store for a JCPenney-branded credit card, issued by Synchrony Financial (“Synchrony”). As part of the application process, the cashier asked Plaintiff for her telephone number, and Plaintiff provided her number. Plaintiff did not indicate it was for a cell phone. Plaintiff’s application was immediately approved, and she received a temporary bar code, which she used to make purchases. Id. 42:12-24. Eventually, Plaintiff received a permanent credit card in the mail, which she used to make additional purchases. Plaintiff made payments on her credit card account until late 2014, when she claims online access to her account was disabled. Id. 52:5-18. At the time Plaintiff stopped making payments on her credit card account, she had an outstanding balance of approximately $350. Defendant engages in the collection of debts on behalf of creditors, including Synchrony. Synchrony placed Plaintiff’s credit card account with Defendant for collections on January 17, 2015. Between January 17, 2015 and February 22, 2015, Defendant placed at least 134 calls to Plaintiff at the number she provided. Defendant placed up to five calls to Plaintiff in a single day, but allowed at least 90 minutes to elapse between each call. Defendant maintains it never intentionally left voicemails for Plaintiff. However, its dialing software uses a voice recognition algorithm to distinguish live people from answering machines, and in the event that the algorithm mistakes an answering machine for a live person, a brief message may be left unintentionally. For the first 119 calls, Defendant contends Plaintiff did not answer. See Call Log. However, Plaintiff maintains she would answer calls, but a live agent would not respond and she would eventually hang up. . It is undisputed that Plaintiff answered a call placed on February 13, 2015 at approximately 4:16 p.m. See Call Log. During the February 13, 2015 call, Plaintiff asked the agent: “And who do I talk to about…being called six times a day?” Defendant contends the remaining 14 calls it placed to Plaintiff were not answered, while Plaintiff contends she would answer calls but a live agent would not respond. The last call from Defendant to Plaintiff was placed on February 22, 2015. On February 22, 2015 at approximately 1:06 p.m., Plaintiff called Defendant and agreed to a payment plan to bring her credit card account current. On February 23, 2015 at approximately 2:28 p.m., Plaintiff called Defendant and asked to modify the payment plan she had previously agreed to. On February 25, 2015 at approximately 12:25 p.m., Plaintiff called Defendant and asked to cancel the payment plan. During the February 25, 2015 call, Plaintiff asked for Defendant to stop calling her, and Defendant’s collections agent stated that the calls would cease.
The District Court found a triable issue of fact as to whether there was actionable harassment under the FDCPA/Rosenthal Act, being critical of those cases allowing more than one call in a single day.
The Court concurs that “the volume of calls itself is not determinative of whether the collector intended to harass or abuse the called party.” Johnson v. Portfolio Recovery Assocs., LLC, 2013 WL 10156241, at *9 (C.D. Cal. June 24, 2013) (citation omitted). In support of its argument, Defendant cites Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218 (E.D. Cal. 2010). Mot. at 5. In that case, the court found the plaintiff failed to raise a triable issue of fact, despite “daily” or “real close to daily” calls from the collector. Arteaga, 733 F. Supp. 2d at 1223, 1229. However, as the Artega court noted, “[c]alling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute harassment under the FDCPA.” Id. at 1228 (citing Akalwadi, 336 F. Supp. 2d at 506 (telephone calls made on a daily basis and three phone calls made within five hours raises question of fact for jury); Kuhn v. Account Control Tech., Inc., 865 F. Supp. 1443, 1453 (D. Nev. 1994) (six telephone calls in 24 minutes constituted harassment in violation of section 1692d(5)); United States v. Cent. Adjustment Bureau, Inc., 667 F. Supp. 370, 376 (N.D. Tex. 1986), aff’d, 823 F.2d 880 (5th Cir. 1987) (finding harassment where debt collector made as many as four or five telephone calls to the same debtor in one day)). In contrast to the “daily” or “real close to daily” calls in Artega, the evidence in this case includes that Defendant called Plaintiff multiple times a day, with as many as five calls in a day. Thus, the volume and pattern of calls alone is sufficient to raise a genuine dispute of material fact. See Bennett v. Portfolio Recovery Assocs., LLC, 2013 WL 6320851, at *3 (C.D. Cal. Nov. 22, 2013) (denying summary judgment where collector called plaintiff’s number twice in one day on twenty occasions and three times in one day on eight occasions). Finally, Defendant cites two out of district cases in which courts found that even multiple calls in a single day did not constitute a violation of § 1692d(5). Mot. at 5 (citing Tucker v. CBE Grp., Inc., 710 F. Supp. 2d 1301, 1305-06 (M.D. Fla. 2010); Carman v. CBE Grp., Inc., 782 F. Supp. 2d 1223, 1230-32 (D. Kan. 2011)). The Court is not persuaded by these opinions. As noted above, the Ninth Circuit Court of Appeals has not addressed the required proof of intent under § 1692d(5), and courts within this circuit have found summary judgment inappropriate where there are multiple calls in a single day. See Neu, 2013 WL 1773822, at *5; Stirling, 2012 WL 952310 at *5; Krapf, 2010 WL 2025323, at *4. While courts may take different views as to the amount and pattern of calls sufficient to raise a triable issue of fact of intent, when viewed in the light most favorable to Plaintiff, the Court finds there is evidence on the record raising a triable issue of fact in this case. Accordingly, Defendant’s Motion for Summary Judgment is DENIED as to Plaintiff’s § 1692d claim.
The District Court found no actionable TCPA claim because the debtor had consented to receive the calls, having provided her cellular telephone number to the Defendant in the credit application process.
Further, although Plaintiff applied for a JCPenney-branded credit card, there is no genuine factual dispute over the fact that JCPenney contracted with Synchrony to issue the card. No reasonable consumer could believe that consenting to be contacted for a store credit card requires that all communications be made by direct employees of the store, but never by the company that issued the card. “When a consumer provides a cellular telephone number to a creditor as part of the underlying transaction, the provision of the number constitutes express consent for the creditor to contact the consumer about the debt.” Chyba v. First Fin. Asset Mgmt., Inc., 2014 WL 1744136, at *10 (S.D. Cal. Apr. 30, 2014), appeal dismissed (Jan. 16, 2014) (citing In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564-65 (2008) (“2008 FCC Order”)). Thus, “[c]alls placed by a third-party debt collector on behalf of the creditor are treated as if the creditor itself placed the call.” Id. (citing 2008 FCC Order at 565). Further, “[a]n individual may indirectly provide a third party with express consent to be called under TCPA.” Olney v. Job.com, Inc., 2014 WL 1747674, at *7 (E.D. Cal. May 1, 2014). . . Plaintiff’s act of providing her cellphone number was a voluntary act; she was not forced to obtain the credit card. Thus, under the FCC’s interpretation of the TCPA, she consented to be contacted on her cellphone about matters related to her credit card, including by third party debt collectors. As such, when Synchrony engaged Defendant in the collection of Plaintiff’s debt, its calls fell within the scope of her “prior express consent.” Defendant is therefore entitled to summary judgment, and the Court GRANTS Defendant’s Motion as to Plaintiff’s TCPA claim.
Finally, the District Court found no actionable common law claim for invasion of privacy.
However, “[i]n the area of collection practices, a creditor has a qualified privilege to protect its economic interest.” Id. (quoting Symonds v. Mercury Sav. & Loan Ass’n, 225 Cal. App. 3d 1458, 1468 (1990)); see also Bundren v. Superior Ct., 145 Cal. App. 3d 784, 789 (1983) (“When one accepts credit, the debtor impliedly consents for the creditor to take reasonable steps to pursue payment even though it may result in actual, though not actionable, invasion of privacy….In the debtor-creditor situation the right of a debtor to privacy is subject to the right of a creditor to take reasonable steps to collect the debt.”). “The privilege ‘may be lost if the creditor uses outrageous and unreasonable means in seeking payment’, but ‘it is not enough that the creditor’s behavior is rude or insolent’.” Inzerillo, 2014 WL 6660534, at *4 (quoting Symonds, 225 Cal. App. 3d at 1469). “The ‘applicable test is whether or not the creditor goes beyond all reasonable bounds of decency in attempting to collect the debt’.” Id. (quoting Bundren, 145 Cal. App. 3d at 789). No reasonable juror could conclude that Defendant’s conduct exceeded all reasonable bounds of decency. As previously discussed, Plaintiff consented to being contacted by telephone when she provided her number while applying for the JCPenney-branded credit card that gave rise to the underlying debt. Pl. Dep. 36:24-37:25. Plaintiff concedes the account balance was unpaid and remained outstanding. Id. 59:11-17, 70:23-71:6. She has shown little more than that Defendant attempted to call her, albeit on numerous occasions, to collect on this debt. An allegation regarding call volume “without more is not enough to state a claim for invasion of privacy above a speculative level.” Inzerillo, 2014 WL 6660534, at *5 (quoting Castellanos v. JPMorgan Chase & Co., 2009 WL 1833981, at *10 (S.D. Cal. June 23, 2009)). Further, Defendant no longer called after Plaintiff explicitly asked for it to stop calling. These undisputed facts establish that Defendant did not invade Plaintiff’s affairs in a manner highly offensive to a reasonable person.