What is the frequency with which a creditor can attempt to reach, or actually communicate with, a debtor in connection with the collection of a consumer obligation? The FDCPA established no statutory safe-harbor minimum or maximum call frequency; Congress specifically declined to issue bright line rules. Recent jurisprudence has moved away from a numbers-based approach to examine the call frequency along with other factors, including (1) pattern, (2) debtor objection, (3) debtor inconvenience, and (4) comparing the number of attempts to the number of actual contacts. Two recent decisions confirm this approach: Waite from Judge Hernandez-Covington of the USDC for the Middle District of Florida and Jones from Judge White of the USDC for the Northern District of California.
In Jones, Judge White explained:
Abusive conduct under section 1692d includes, but is not limited to, “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). A plaintiff carries the burden of demonstrating that a defendant debt collector placed abusive telephone calls. See, e.g., Harvey v. United Adjusters, 509 F. Supp. 1218, 1221 (D. Or. 1981). Intent to annoy, abuse, or harass may be inferred from the frequency of phone calls, the substance of phone calls, or the place to which the calls are made. See, e.g., Joseph v. J.J. Mac Intyre Cos., LLC, 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002) (“Whether there is actionable harassment of annoyance turns not only on the volume of calls made, but also on the pattern of calls.”); Arteaga v. Asset Acceptance, LLC, 2010 WL 3310259, *5 (E.D. Cal. 2010) (finding no harassment although calls were allegedly daily or more often than daily, and holding that “[a]lthough there is no bright-line rule, certain conduct generally is found to either constitute harassment, or raise an issue of fact was to whether the conduct constitutes harassment, while other conduct fails to establish harassment as a matter of law.”). A debt collector may be found to harass a debtor by immediately recalling a debtor after the debtor has hung up the phone. Bingham v. Collection Bureau, Inc., 505 F. Supp. 864, 873 (N.D. Cal. 1981). A debt collector may be found to harass a debtor by continually calling the debtor after the debtor has requested that the debt collector cease and desist communication. See Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1516-17 (9th Cir. 1994). “Intent to annoy, abuse, or harass may be inferred from the frequency of calls, or the place to which the phone calls are made.” Kerwin v. Remittance Assistance Corp., 559 F. Supp. 2d 1117, 1124 (D. Nev. 2008). Here, although it is uncontested that Rash Curtis placed approximately 179 calls in 2009 to resolve the alleged debt owed by Plaintiff to various creditors (Plaintiff approximates 200), there is no genuine issue of fact that Plaintiff asked the collectors to stop calling, or asked them to refrain from calling at all or specifically at work, or complained about the number of calls received. Beside the frequency of the calls, there is nothing in the record to sustain a claim for intentional harassment. There is no evidence that Rash Curtis was calling immediately after Plaintiff hung up the telephone. There is no evidence that Rash Curtis used unprofessional or misleading language when speaking with Plaintiff. There is no evidence of improper timing or calls to a known inconvenient place. Under the undisputed facts of this case, the Court finds that Rash Curtis’s conduct did not rise to the level of harassment under Section 1692d, and fails to raise a triable issue as to whether the phone calls were initiated with the intent to harass in violation of Section 1692d(5).