Sunday, August 22, 2010

Defending “Call Volume” Claims: How Many Calls Are Too Many Under Section 1692d(5) Of The FDCPA?

Collectors cannot collect money if they cannot make contact with consumers. The primary way collectors do this is by phone, and it is often necessary to make multiple call attempts before a consumer is reached. But how many call attempts are too many? When will a collector cross the line between diligently trying to make contact, and calling so many times that a court will conclude the collector was trying to harass the consumer? Is there a magic number of calls?

There are no hard and fast rules on how many times a collector can call a consumer, and decisions of the district courts have been all over the map. Call volume claims are generally fact-intensive and can be expensive to defend, and this may explain why these cases are favored by consumer lawyers. Fortunately for collectors, however, there is an emerging trend among the district courts to reject FDCPA claims that are based solely upon counting up the number of call attempts made by the collector. These decisions reflect an appreciation of the basic fact that collectors often must make multiple attempts before the can make contact with the debtor. These call attempts reflect an attempt to start a dialogue about the debt – not an intent to harass or annoy.

Section 1692d(5) of the FDCPA prohibits collectors “[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) (emphasis added). The FDCPA is often described as a “strict liability” statute, but this is not true for a section 1692d(5) claim. The plaintiff must plead and prove that the collector intended to annoy, abuse or harass in order to prevail. See, e.g., Clark v. Capital Credit & Collection Servs, Inc., 460 F. 3d 1162, 1176, n.11 (9th Cir. 2006) (identifying sections 1692d(5), 1692f(3) and 1692c(a)(1) of the FDCPA as exceptions to strict liability); Kaplan v. Assetcare, Inc., 88 F. Supp. 2d 1355, 1362 (S.D. Fla. 2000)(same: “Congress took care to require an element of knowledge or intent in certain portions of the FDCPA where it deemed such a requirement necessary.”).

Thus, to establish a violation of section 1692d(5), the consumer must show that the calls were made “repeatedly or continuously” and that they were made with the intent to annoy, abuse, or harass. Although the FDCPA does not define “repeatedly or continuously,” the FTC has opined that "continuously" means “making a series of telephone calls, one right after the other” and has said that “repeatedly means “calling with excessive frequency under the circumstances.” See Statements of General Policy or Interpretation Staff Commentary On the Fair Debt Collection Practices Act, 53 Fed.Reg. 50,097, 50,105 (Fed. Trade Comm’n Dec. 13, 1988).

The FDCPA does not contain any bright-line rules setting forth the permissible number of calls a collector can place in a day, week, month or year without violating section 1692d(5). When deciding if a collector has violated section 1692d(5), courts consider both the volume and the pattern of the calls. See Katz v. Capital One, 2010 WL 1039850, *3 (E.D. Va. Mar. 18, 2010); Saltzman v. I.C. Sys., Inc., 2009 WL 2190359, *7 (E.D. Mich. Sept. 30, 2009); see also Martin v. Select Portfolio Serving Holding Corp., 2008 WL 618788, *6 (S.D. Ohio Mar. 3, 2008) (“In determining whether the debt collector intended to annoy, abuse and harass the consumer, the Court may consider frequency, persistence, and volume of the telephone calls.”); Sanchez v. Client Services, Inc., 520 F. Supp. 2d 1149 (N.D. Cal. 2007) (summary judgment for consumer on section 1692d(5) claim where collector placed 54 telephone calls to debtor's place of employment during six month period, including 17 calls in one month and six on one day); Akalwadi v. Risk Management Alternatives, Inc.,336 F. Supp. 2d 492, 505-06 (D. Maryland 2004) (summary judgment denied on section 1692d(5) claim; 28 calls in two month period, including periods of daily calls, and three calls on one day); Kuhn v. Account Control Tech., Inc., 865 F. Supp. 1443, 1453 (D. Nev.1994) (six calls to consumer’s place of employment within twenty-four minutes constituted harassment under section 1692d(5)).

Recent decisions by district courts around the country reflect an encouraging trend for collectors facing call volume claims. A district court in Florida recently granted summary judgment for a collector who called plaintiff (a non-debtor) fifty-seven times, including seven times in a single day. See Tucker v. CBE Group, Inc., _ F. Supp. 2d _, 2010 WL 1849034, *1, 3 (M.D. Fla. May 5, 2010). Despite the relatively high number of calls, there was no evidence the collector had repeatedly placed calls after being asked to cease communication, or that it had called back on the same day it left a message. See id. at *3. The court held the “evidence demonstrates that CBE placed each of its telephone calls with an intent to reach [plaintiff’s daughter] rather than an intent to harass Plaintiff.” Id.

In Katz v. Capital One, the collector allegedly called the consumer “fifteen to seventeen times” after her attorney sent a letter instructing the collector to cease contact. The letter was sent to the original creditor, however, not to the collector. See 2010 WL 1039850 at **1-2. The court granted summary judgment for the collector, concluding there was no evidence to establish “that the phone calls were intended to be annoying, abusive, or harassing. Instead, the records shows that Allied, believing the debt to be valid, attempted to take steps to collect that debt.” Id. at *3. The collector never called more than twice in one day, none of its calls “were made back-to-back, at inconvenient times, after plaintiff had asked [the collector] to stop calling, or immediately after plaintiff hung up.” Id.

In Saltzman v. I.C. Systems, Inc., the court granted summary judgment for a collector who placed “somewhere between twenty and fifty unsuccessful telephone calls and between two and ten successful telephone calls” to the consumer in just over one month. See Saltzman, 2009 WL 2190359 at *6 n.4. While number of call attempts was relatively high, the court observed that the disparity between the large number of calls placed by the collector, and low number of actual conversations with the consumer, suggested a “difficulty of reaching Plaintiff, rather than an intent to harass.” Id. at *7 (citation omitted).

In Arteaga v. Asset Acceptance, LLC, _ F. Supp. 2d _, 2010 WL 3310259 (E.D. Cal. Aug. 23, 2010), the court granted summary judgment for a collector on a section 1692d(5) claim, despite testimony from the consumer that the collector called her “daily” or “almost daily.” Id. at *7. The court held that “even if Ms. Arteaga’s allegations are believed true, and considered under the ‘least sophisticated debtor’ standard, the conduct does not constitute harassment as a matter of law.” Id.

There is no circuit level authority on section 1692d(5) claims, and no precise guidelines regarding the permissible number of call attempts have been established. Some cases appear to reflect ad hoc reasoning based solely on number of attempts made to reach the consumer. See, e.g., Bassett v. I.C. System, Inc., _ F.Supp.2d _, 2010 WL 2179175 at *4 (N.D. Ill. June 1, 2010) (denying summary judgment where collector made thirty-one call attempts during a twelve day period); Krapf v. Nationwide Credit Inc., 2010 WL 2025323, *4 (C. D. Cal. May 21, 2010) (denying summary judgment where collector placed over 180 calls in a single month, with an average of six calls per day). The trend in the case law is encouraging for collectors, however, with courts using a more holistic, analytical approach to section 1692d(5) claims, rather than just blindly counting up the number of call attempts.