In Swearingen v. Portfolio Recovery Associates, LLC, — F.Supp.2d —-, 2012 WL 4354748 (N.D.Ill. 2012), Judge Chang found that a ‘loud buzzing sound’ in the debt collector’s telephone calls was meant to harass the debtor.
In addition, Gordon testified that on numerous occasions he requested that Portfolio provide him with a letter or at least an address for him to write to request that the calls stop, and each time the Portfolio representative refused to provide him with an address. Gordon Dep. at 52:18–53:23, 93:8–15. Gordon’s testimony in this respect is corroborated by the audio recording of the December 28, 2010 phone call, wherein Gordon can be heard asking for an address to write to Portfolio, and the Portfolio representative does not respond to the request. R. 46–4, Pl.’s Exh. C (audio file) at 1:05. Finally, Gordon testified that Portfolio used an “extremely loud buzzing sound” in some of the phone calls with him; the December 28 audio file corroborates that the loud buzz is heard during that call. Gordon Dep. at 125:24–126:6; R. 46–4, Pl.’s Exh. C (audio file) at 2:25. Portfolio has not provided any reason for using a buzzing device in its calls other than to harass the recipient of the phone call (again, at the summary judgment stage, the evidence is viewed in Plaintiffs’ favor, meaning that we assume that Portfolio indeed employs such a device during its calls).
The District Court also found that a threat to sue on a time barred debt violated the FDCPA.
The final issue this Court must decide is whether threatening to file a lawsuit on the debt in this case would violate either § 1692e(5) or § 1692e(10) of the FDCPA. The Swearingens have argued, and Portfolio has not denied, that Portfolio could not legally take, and did not intend to take, legal action with regard to the debts in this case, given the age of the debts in this case. R. 45, Pl.’s Resp. Br. at 18; R. 48, Def.’s Reply Br. at 5. Courts appear to be in agreement that although mere efforts to collect on a time-barred debt may not be prohibited by the FDCPA, threats to file a lawsuit on a time-barred debt may constitute a violation of § 1692e(5) of the Act. See Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir.2001) (attempting to collect on a time-barred debt does not violate the FDCPA “in the absence of an express threat of litigation”) (emphasis added); Murray v. CCB Credit Services, Inc., 04 C 7456, 2004 WL 2943656, at *2 (N.D.Ill.Dec. 15, 2004) (“[A] violation of the FDCPA occurs if the attempt to collect the time-barred debt is accompanied by a threat to sue, or if litigation has actually begun.”); Walker v. Cash Flow Consultants, Inc., 200 F.R.D. 613, 616 (N.D.Ill.2001) (“[I]n order to survive a motion to dismiss, a defendant’s attempt to collect on a time-barred debt must be accompanied by actual litigation or a threat, either explicit or implicit, of future litigation.”); Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 393 (D.Del.1991) (“[T]hreatening [ ] a lawsuit which the debt collector knows or should know is unavailable or unwinnable by reason of a legal bar such as the statute of limitations is the kind of abusive practice the FDCPA was intended to eliminate.”). Viewing the evidence in the light most favorable to the Swearingens, Portfolio knew it could not and did not intend to file a lawsuit to collect on Majolis’s 20–year–old debts, and therefore the Swearingens have raised a genuine issue as to whether Portfolio violated § 1692e(5).