In Hinderliter v. Diverisified Consultants, Inc., 2012 WL 3888148 (N.D.N.Y. 2012), Judge Mordue granted summary judgment for a debt collector on a telephonic harassment claim because the efforts to call were efforts to reach the Plaintiff, not to harass.
Plaintiffs also complain that during the August 23, 2010 call, Losco stated that failure to resolve the debt would affect Dean Hinderliter’s credit. This common-sense observation is not abusive. In their memorandum of law plaintiffs argue that Losco told them she would designate the account “refusal to pay”; that she should have marked it “cannot pay”; and that if she had marked the file “cannot pay” they would not have received any more calls. This assertion is unsupported by any evidence and directly contradicts Losco’s deposition testimony that in either case plaintiffs would continue to receive calls. Losco’s persistent efforts during the August 23, 2010 call to obtain plaintiffs’ commitment to make a payment in September, although perhaps unpleasant for plaintiffs, do not support a finding that her conduct was harassing, oppressive, or abusive. “ ‘Section 1692d is meant to protect debtors from oppressive and outrageous conduct, but not from every negative consequence of debt collection.’ “ Johnson, 2011 WL 6012509 at *5 (citation omitted). Plaintiffs’ contentions regarding the content of the August 23, 2010 call are either unsupported by the record or, assuming their truth and viewing them from the perspective of the least sophisticated consumer, do not amount to harassing, oppressive, or abusive conduct within the meaning of section 1692d. Further, whether viewed from the perspective of the least sophisticated consumer or that of a consumer whose circumstances make him relatively more susceptible to harassment, oppression, or abuse, the totality of defendant’s conduct does not support a section 1692d claim. ¶ The undisputed factual record, interpreted most favorably to plaintiffs, would not permit a rational trier of fact to find that Losco made the unanswered telephone calls to plaintiffs “with intent to annoy, abuse, or harass” them in violation of section 1692d(5). Nor, on the undisputed record, could a rational trier of fact find that defendant engaged in conduct “the natural consequence of which is to harass, oppress, or abuse” plaintiffs in violation of section 1692d. Plaintiffs raise no question of fact requiring a trial. Defendant’s motion for summary judgment dismissing the action is granted.