Federal Judge Determines That 18 Calls Over Two-Week Period Does Not Violate FDCPA

A federal Judge in New Jersey has determined that a debt collector who made 18 telephone calls to a consumer over a two-week period (17 of which were unanswered and one where the recipient hung up) “could not reasonably be found to violate the Fair Debt Collection Practices Act (FDCPA).”  The case is Chisholm v. AFNI, Inc., (Case No. 15-3625, U.S, District Court, New Jersey, Nov. 22, 2016) A copy of the opinion from the Honorable Jerome B. Simandle, U.S. District Court Judge, District of New Jersey, can be found here.

Background

Plaintiff Samuel Chisholm had an account with DirecTV which became delinquent at some point and was referred on April 28, 2015 to Defendant AFNI (AFNI) for collection. Plaintiff provided his cellular telephone number to DirecTV as part of his contract with the company.

DirecTV provided Defendant with information regarding Plaintiff’s delinquent account, including Plaintiff’s name, home address, and telephone number. On April 30, 2015, Defendant sent Plaintiff a collection letter, or Validation Notice, and attempted to contact him on his cell phone.

Defendant placed the following calls to Plaintiff’s cell phone: twice on April 30, 2015; once on May 1, 2015; once on May 2, 2015, twice on May 4, 2015; three times on May 5, 2015; once on May 6, 2015; twice on May 7, 2015; twice on May 8, 2015; once on May 9, 2015; twice on May 11, 2015; and once on May 12, 2015.

On May 18, 2015, Defendant received a letter from Plaintiff’s attorney that all communication with him should be directed to his attorneys. Consistent with its policy, AFNI then coded Plaintiff’s account as a “cease and desist” account and stopped all calls. 

In all, Defendant placed 18 calls in 13 days. Defendant reached Plaintiff by phone only one time, when an AFNI representative identified himself and asked to speak with Mr. Chisholm, who hung up seconds later. 

Plaintiff’s recollection differs. He maintains that he received calls from AFNI “that were not recorded in its records, namely that he received calls from AFNI multiple times a day and multiple days a week with calls coming in rapid succession.”

However, Plaintiff’s dispute arises from his belief in the inauthenticity or inaccuracy of the records produced by AFNI and his own cell phone carrier T-Mobile, because those records do not match his later recollection of the 2015 calls.

Plaintiff brought this case against AFNI alleging violations of the FDCPA, and the Telephone Consumer Protection Act (“TCPA”), arising from telephone calls placed in connection with AFNI’s efforts to collect a consumer debt.

After the parties exchanged discovery AFNI filed a Motion for Summary Judgment.

Editor’s Note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

The Court’s Opinion

Per Judge Simandle:

“The principal issue is whether a series of 18 telephone calls from a debt collector, of which 17 were unanswered and one where the recipient hung up, unaccompanied by harsh or threatening language or back-to-back calls, could reasonably be found to violate the FDCPA and the TCPA.”

The 1692d FDCPA Claim

Section 1692d of the FDCPA makes unlawful “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” The statue identifies certain conduct that is per se “a violation of this section,” including as relevant here, “Causing 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.”

Judge Simandle wrote: 

“Courts around the country have held that the number of calls alone cannot violate the FDCPA; a plaintiff must also show some other egregious or outrageous conduct in order for a high number of calls to have the “natural consequence” of harassing a debtor.

[A] debt collector does not necessarily engage in harassment by placing one or two unanswered calls in a day in an unsuccessful effort to reach the debtor, if this effort is unaccompanied by any oppressive conduct such as threatening messages.

The nature of the telephone calls in this case does not strike the Court as excessive or harassing: Defendant’s representatives never called more than three times in one day, with at least three hours between attempts, each was unanswered, and all during regular business hours between the hours of 9:30 a.m. and 7 p.m.; Plaintiff was not called every day during the relevant time period; only one call resulted in actual voice contact with Plaintiff; the transcript of that call shows that Defendant’s representative conducted himself politely and the duration was less than 40 seconds; and Defendant immediately ceased calling Plaintiff upon receiving a letter from his lawyer on May 18, 2015. Plaintiff has pointed to no harassing, threatening or vulgar language.

In the present case, no reasonable jury could find that the quantity, frequency, and proximity of the telephone calls demonstrates conduct, the natural consequence of which is to harass, oppress, or abuse the plaintiff under § 1692d.

The FDCPA was not intended to prevent debt collectors from contacting debtors at all, or to “impose unnecessary restrictions” on ethical collectors.” Emphasis Added

The TCPA Claim

The parties dispute whether Plaintiff provided express consent to be called on his cell phone. AFNI contends that it is entitled to summary judgment on this claim for two reasons: first, because Plaintiff provided prior express consent to DirecTV to contact him by providing his phone number and address as part of his written contract for television service, and that consent extended to AFNI when DirecTV assigned Plaintiff’s delinquent account to AFNI for collection; and second, because Plaintiff cannot show that Defendant used an automatic dialing system or an artificial voice in its calls.

Plaintiff argues that summary judgment is inappropriate because there are factual disputes regarding his consent and Defendant’s use of prerecorded voices.

However, the Court found that those disputes were not genuine and that AFNI was also entitled to summary judgment on this claim.

Judge Simandle determined:

“Under the TCPA, “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.

With respect to calls from a creditor regarding a particular debt, “prior express consent” is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.

Prior express consent extends to calls placed by a third party collector on behalf of that creditor.

In this case, it is undisputed that Plaintiff had a written contract with DirecTV for cable television service, that he provided his address and phone number to DirecTV, and that AFNI called Plaintiff to collect on that debt after DirecTV referred the account to AFNI.

Furthermore, Plaintiff has not created a genuine dispute over whether he revoked that consent. Although Plaintiff presents deposition testimony that he asked AFNI to stop calling him during “the second call I got after the first call,” Plaintiff’s account is contradicted by the actual transcript and audio recording of that call. Again, Plaintiff cannot use his recollection to contradict the clear content of the conversation in which he participated, reflected in the recording and in the transcript thereof. This is a false dispute of fact, not a genuine one.

For these reasons, the Court will grant Defendant’s motion for summary judgment as to Plaintiff’s TCPA claims in Count V of the Complaint.” 

insideARM Perspective

The FDCPA discussion in this case should be most interesting to the ARM industry. It should also be mandatory reading for members of the Consumer Financial Protection Bureau (CFPB) Debt Collection Rulemaking Team.

As noted in Judge Simandle’s Opinion, when Congress enacted the FDCPA, it sought to curb the consumer harm from frequent and abusive debt collection calls by enacting 15 U.S.C. §1692d(5).  Rather than focus on a set number of calls per day or week – or on how collection calls made the consumer feel – the FDCPA looked to the intent of the caller. The emphasis on intent allows a Court to critically examine on a case-by-case basis whether there was an abuse intended by the debt collector.  That is exactly what the court did in this case.

However, the CFPB’s July, 2016 Outline of Proposals Under Consideration and Alternatives Considered (“the Outline”) proposes the following regarding debt collection contacts and attempts:

The July, 2016 Outline discusses that the CFPB is considering applying the limits in Table 2 either as a “bright-line rule but with some specific exceptions” or as a “rebuttable presumption that contacts or attempted contacts above the threshold constitute harassing, oppressive, or abusive conduct, and contacts or contact attempts at or below the thresholds do not.” This case shows that a “bright-line” rule is not needed.

Finally, insideARM contacted AFNI for additional perspective on the case. Alicia McKeighan, Chief Compliance Officer at AFNI commented:

 “He said/she said cases are difficult to defend, but the court has taken a well-reasoned approach and determined that the evidence provided confirms there was no genuine issue of fact, and no trial was necessary.  We are also equally delighted with the position the court took regarding the call volume and the allegations under 1692d. Afni made 18 calls in a two-week time period and the court opined that there was no way a reasonable jury could find the calls to be harassing or abusive.  Finally, the case included a victory for he said/she said allegations under the FDCPA and the TCPA. The court concluded the dispute over the facts of the TCPA allegations were not genuine. Plaintiff disputed that the phone number was given during the account inception, and alleged the consent to call him was revoked in a later conversation. However, the Plaintiff failed to provide any evidence that his phone number was not given when entering into a contract with DirecTV, or that he revoked consent to call the phone number provided. We are thankful this case resulted in a positive outcome for Afni, and the industry.”

By Tim Bauer