In Lewis v. Portfolio Recovery Associates, LLC, 2015 WL 5672650, at *8-9 (M.D.Tenn.,2015), Judge Haynes granted summary judgment to an FDCPA defendant on the basis that mere volume of collection calls, without more, did not constitute harassment.
Defendant called Plaintiff only nineteen times after May 1, 2012. (Docket Entry No. 37–3 at 30–32). Although Plaintiff disagrees “wholeheartedly” with Defendant’s phone records, Plaintiff does not offer any records of his own. (Docket Entry No. 31–1 at p. 77). Yet, even if Defendant called Plaintiff more frequently than reported, “the volume of calls alone does not establish a violation of § 1692d(5). Plaintiff must offer evidence beyond the mere number of calls to support [his] allegation that the telephone calls were harassing, oppressive, or abusive.” Daniel v. West Asset Mgmt., 2011 WL 5142980, at *4 (E.D.Mich. Oct. 28, 2011) (citation omitted). When considering §§ 1692d and 1692d(5) claims, “[c]ourts have followed the Federal Trade Commission’s interpretations, finding that the term ‘repeatedly’ means calling with excessive frequency under the circumstances, and that ‘continuously’ means making a series of calls, one right after the other.” Hicks v. America’s Recovery Solutions, LLC, 816 F.Supp.2d 509, 515 (N.D.Ohio 2011) (internal quotations omitted). Although Defendant called the 8528 number up to twice a day, these calls were never one right after the other. Further, a total of nineteen calls in four months is not excessive. See Bancroft v. Afni Inc., 2013 WL 3791465, at *4 (N.D.Ohio July 19, 2013) (“Daily calls do not raise an issue of fact as to harassment.”). Plaintiff admitted that he felt the number of calls, alone, constituted harassment. (Docket Entry No. 31–1 at p. 28 and p. 47). Plaintiff does not identify any other complaints about Defendant. Id. at p. 55. Plaintiff asserts that Defendant was “not friendly,” but admitted that Defendant was not rude, never threatened Plaintiff—except with a lawsuit for collection of the debt—and never swore at Plaintiff. (Docket Entry No. 36 at ¶ 37). Further, after receiving Plaintiff’s cease and desist letter, the Defendant stopped contacting Plaintiff. (Docket Entry No. 37–3 at 32–34). “While it is clear that the telephone calls made to the Plaintiff were unwelcome, that is simply insufficient to establish a violation of the FDCPA.” Durthaler v. Accounts Receivable Mgmt., Inc., 854 F.Supp.2d 485, 492 (S.D.Ohio 2012). Plaintiff cannot prove that Defendant’s calls were placed with an intent to annoy, abuse or harass Plaintiff under § 1692d(5). Likewise, Plaintiff cannot prove that Defendant’s calls had the “natural consequence” of harassing, oppressing, or abusing Plaintiff under § 1692d. *9 Plaintiff’s next claim is that Defendant violated § 1692f by repeatedly calling Plaintiff, and by continuing to call after Plaintiff stated that he could not pay the debt. FDCPA § 1692f provides that a “debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” This section “has been described as a ‘backdrop’ in the statute, intended to cover actionable debt collection practices that may not be expressly addressed in Sections 1692d and 1692e.” Williams v. Javitch, Block & Rathbone, LLP, 480 F.Supp.2d 1016, 1023 (S.D.Ohio 2007). Plaintiff contends that he repeatedly told Defendant he could not afford to pay the debt. Yet Plaintiff had only two conversations with Defendant and on other occasions, Plaintiff did not answer Defendant’s calls. (Docket Entry No. 31–1 at p. 48 and p. 54). Defendant’s records also show two answered calls. (Docket Entry No. 37–3 at 30–32). During the first call, Plaintiff negotiated a payment plan of fifty dollars per month. (Docket Entry No. 31–1 at p. 49). During the second call, Defendant requested full payment. Id. at p. 52. Plaintiff told Defendant “what they needed to do,” and that Plaintiff would “be contacting an attorney.” Id. at p. 54. In his amended complaint, Plaintiff states that he “repeatedly explained to collectors that [he] could not afford the demanded payment plan.” (Docket Entry No. 9 at ¶ 16). Yet, Plaintiff admitted that he did not make this statement to Defendant “repeatedly,” as he had only one such conversation. (Docket Entry No. 31–1 at p. 72). In any event, Plaintiff insists that he repeatedly told the Defendant during this one conversation that he could not pay the debt. This conduct is not evidence of harassment. “The fact that Defendant continued to call the [number] despite Plaintiff’s challenge to the underlying basis of the debt, and stated unwillingness to pay the debt, does not demonstrate an intent to harass[.]” Newton v. Portfolio Recovery Assoc., LLC, 2014 WL 340414, at *5 (S.D.Ohio Jan. 30, 2014). Even if Plaintiff had orally told the Defendant to stop calling, “the FDCPA expressly provides that, to be effective, a consumer’s request that a debt collector cease further communications must be in writing.” Newton, 2014 WL 340414 at *5. Upon receiving Plaintiff’s cease and desist letter, the Defendant stopped calling Plaintiff. (Docket Entry No. 37–3 at 32–34). Plaintiff’s § 1692f claim is based upon the same telephone calls as his §§ 1692d and 1692d(5) claims. Because this conduct is addressed by §§ 1692d and 1692d(5) as discussed above, Plaintiff’s § 1692f claim likewise fails.