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The Current Status of Excessive Call "Harassment"

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Overview

For you the collector, there is no bright-line rule which establishes how many phone calls to a debtor are deemed excessive and harassing, and hence a violation of the FDCPA.  Arteaga v. Asset Acceptance, LLC, 733 F.Supp.2d 1218, 1227 (E.D. Cal. 2010).  For example, in Jones v. Rash Curtis & Assoc., 2011 WL 2050195 (N.D. Cal. 2011), a case our firm litigated, the court ruled 179 calls over the course of one year (where there was no other indication of harassment) did not constitute a violation of the FDCPA or Rosenthal Act.  

Whether your collection calls to debtors run the risk of constituting actionable harassment is based on several factors, not simply the volume of the calls.  Joseph v. J. J. MacIntyre, LLC., 238 F.Supp.2d 1158, 1168 (N.D. Cal. 2002).  This article explains these relevant factors and the current law in this area so that you may better “calibrate” your collection calls.

The Relevant Statutory Provisions

The FDCPA at 15 U.S.C. § 1692d prohibits a debt collector from engaging “in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”  15 U.S.C. § 1692d(5) specifically forbids a collector from “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.”

The FDCPA is generally a strict liability statute, meaning that even if an inadvertent violation occurs, liability normally follows. 1 However certain sections (and §1692d(5) is one of them) add an intent requirement that must be proven by the debtor.  Nonetheless, the standard by which harassment is judged is an objective one.  Arteaga, 733 F. Supp.2d at 226.

California Civil Code § 1788.11(d) of the Rosenthal FDCPA prohibits “causing a telephone to ring repeatedly or continuously to annoy the person called.”  California Civil Code § 1788.11(e) prohibits “communicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and to constitute harassment to the debtor under the circumstances.” 

California Civil Code § 1788.17 requires that debt collectors comply with the federal FDCPA, and failure to do so is a violation of state law.  Any claim under § 1788.11(d) must involve a situation where the debt collector is causing a telephone to ring repeatedly.  Any claim under § 1788.11(e) requires a communication with a debtor with unreasonable frequency.  Krapf v. Nationwide Credit, Inc., 2010 WL 2025323, *4 (C.D. Cal. 2010).  Significantly, Krapf holds:  ‘”Communicating,” at least for purposes of this section of the Rosenthal Act, requires actual contact between the debt collector and the debtor.”   

The FDCPA does not define what “repeatedly” or “continuously” means.  Unlike the FDCPA’s express prohibitions about the timing of calls (not before 8:00 a.m. or after 9:00 p.m.), there is no express prohibition built in the FDCPA against calling a debtor every day, or even more than once in the same day. 

In analyzing such claims, courts have looked to all the surrounding circumstances to determine whether or not the frequency of the calls violate the Acts.   “Whether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of the calls.”  Arteaga, 733 F.Supp.2d at 1227.

The Federal Trade Commission, the federal agency charged with enforcing the FDCPA, defines “continuously” as “a series of collection calls, one right after another.”  The FTC defines “repeatedly” as “calling with excessive frequency under the circumstances.”  FTC Statements of General Policy or Interpretation Staff Commentary on the FDCPA, 53 Fed. Reg. 50097, 50105 (Dec. 13, 1988).  One FTC Staffer has suggested that six collection calls in one hour is likely a violation.  Atteberry, FTC Informal Staff Letter (July 18, 1978).  These informal letters, however, are neither binding on a court, nor are they found particularly persuasive by most courts. 

The Various Factors

Immediate Call Backs

Case law interpreting the FDCPA has found that immediately calling back a debtor who has hung up on a debt collector is a violation.  Bingham v. Collection Bureau, Inc., 505 F.Supp. 864, 873 (D.N.D. 1981).  Placing a number of  telephone calls to the debtor in a very short period of time is risky.  See Kuhn v. Account Control Tech, Inc., 865 F.Supp. 1443 (D. Nev. 1994) (six calls to the debtor at her place of employment within a 24-minute period was a violation).  

Where The Debtor Has Asked For Calls To Stop

Courts have found liability where calls are made after the debtor has asked not to be called anymore. See Joseph v. J. J. MacIntyre Companies, LLC, 238 F.Supp.2d 1158 (N.D. Cal. 2002) (court found potential liability where 200 calls were made over 19 months and on some days there were multiple calls made after plaintiff requested no further calls be made). 

Courts are much more likely to find, or infer, actionable harassment under § 1692d(5) after a debtor has asked the collector to cease or desist calling – which is also a separate violation of § 1692c(c).  Compare Jones, 2011 WL 2050195, at *3 (granting summary judgment to collector where “[t]here is no genuine issue of fact that Plaintiff asked the collectors to stop calling”) with Prewitt v. Wolpoff & Abramson, LLP, 2007 WL 841778 at *3 (W.D. N.Y. 3/19/07) (denying summary judgment to a defendant collector where it continued to call after plaintiff had informed the collector he could not pay due to financial constraints); Fausto v. Credigy Servs. Corp., 598 F.Supp.2d 1049 (N.D. Cal. 2005) (90 phone calls with many being made after cease and desist requests). 

Call Volume

Under FDCPA § 1692d(5), “[a]ctionable harassment or annoyance turns on the volume and pattern of calls made, irrespective of the substance of the messages.”  Majewski v. I.C. Sys., Inc., 2010 WL 145861, at *3 (N.D. Ill. Jan. 8, 2010).  A high number of calls, by itself, has repeatedly been found not to constitute a violation of the FDCPA – as a matter of law.  This is particularly true where the collector is simply trying to establish contact with the debtor, and the debtor fails to respond at all. 

The courts that have considered these circumstances generally hold a high volume of calls reflects an intent to establish contact rather than an intent to annoy, abuse or harass the debtor.  See, e.g., Chavious v. The CBE Group, 2012 WL 113509, at *2 (E.D. NY 1/12/2012) (36 calls in a 2-month period, without more, is not actionable as a matter of law); Carmen v. CBE Group, 782 F.Supp.2d 12234, 1232 (D. Kan. 2011) (149 calls; collector never reached debtor); Tucker v. CBE Group, 710 F.Supp.2d 1301, 1305 (M.D. Fla. 2010) (same); Jones v. Rash Curtis, 2011 WL 2050185, at *2-3 (179 phone calls – no violation); Lynch v. Nelson, Watson & Assoc., LLC, 2011 WL 2472588, at *2 (D. Kan. 6/11/11) (86 calls over three months – no violation).

Tucker v. The CBE Group, Inc. is illustrative.  There, the court ruled that 57 calls during the relevant 3-month period was not a violation.  In Tucker, the debt collector never spoke to the debtor, was never asked to cease calling, and never called back on the same day it left a message.  Id. at2010 WL 1849034.  The court observed:

While the number of calls made during the relevant time period does seem somewhat high, Defendant only left a total of six messages, made no more than seven calls in a single day, and did not call back the same day after leaving a message.  The evidence demonstrates that CBE placed each of its telephone calls with an intent to reach [the debtor] rather than an intent to harass [the debtor].

In Waite v. Financial Recovery Services, Inc., 2010 WL 5209350, *3, 6 (M.D. Fla. Dec. 16, 2010), the court ruled that 132 calls in a nine-month period was not a violation of the FDCPA.

In Jimenez v. Accounts Receivable Management, Inc., 2010 WL 5829206 (C.D. Cal. Nov. 15, 2010) the District Court found in favor of the collector as a matter of law, finding that no reasonable jury could find that 69 unanswered calls over a 115-day period violated § 1692d(5) of the FDCPA

In Arteaga v. Asset Acceptance, LLC, at 2010 WL 33102059, the court ruled:

[T]he court finds that Asset’s conduct did not rise to the level of harassment under section 1692d. . .Ms. Arteaga presents no evidence that Asset called her immediately after she hung up, called multiple times in a single day, called her place of employment, family, or friends, called at odd hours, or called after she requested Asset to cease calling.  Indeed, Ms. Arteaga does not claim that she requested Asset to cease calling her, and only recalls the substance of one conversation in which Ms. Arteaga initiated the communication with Asset. . ..Ms. Arteaga fails to cite a single case in which “daily” or “nearly daily” phone calls alone raises an issue of fact as to these claims.  Rather the case law supports Asset’s position that. . .the conduct does not constitute harassment as a matter of law.

In Udell v. Kansas Counselors, Inc., 313 F.Supp.2d 1135 (D. Kan. 2004), the court held the fact that debt collector placed four automated telephone calls to consumers over course of seven days without leaving message did not, as a matter of law, constitute harassment under the FDCPA. 

In Bey v. Daimler Chrysler Servs., LLC, 2006 WL 361385 (D.N.J. Feb. 15, 2006), the court granted judgment in favor of the collector even though the collector called multiple times in one day without leaving any messages.

In Saltzman v. I.C. Systems, Inc., 2009 WL 3190359, at *7 (E.D. Mich. 2009), the court wrote:

Plaintiff has not pointed to any evidence in the record regarding the amount, frequency, pattern or content of Defendant’s calls that would suggest anything other than a legitimate, albeit persistent effort to reach her. . .[T]he FDCPA does not prohibit such legitimate attempts to contact a debtor.

In Saltzman, the defendant placed somewhere between twenty and fifty unsuccessful telephone calls and between two and ten successful telephone calls to the debtor between approximately November 9 and December 12, 2008.

As shown, high call volume, without more, generally does not demonstrate an intent to harass.  However, some courts disagree and have ruled that a high volume of calls, without more, can raise a triable issue of fact as to the collector’s intent. 

In Krapf, 2010 WL 2025323, at *3-*4, the court denied the collector’s motion for summary judgment where the phone calls to the debtor exceeded 180 over a 1-month period.

In Bassett v. I.C. Systems, Inc., 715 F.Supp.2d 803, 810 (N.D. Ill. 2010), the defendant collector’s motion for summary judgment was denied where the collector placed 31 calls in slightly more than 12 days.

Calling The Debtor’s Place Of Employment

Likewise, repeatedly calling the debtor’s place of employment to speak with the debtor, when combined with high call volume (with or without cease and desist) is more likely to be found to constitute actionable harassment.  See Kuhn v. Account Control Tech, Inc., 865 F.Supp. at 1453 (denying collectors motion for summary judgment where, among other things, the collector called debtor 6 times in 24 minutes, repeatedly called debtor’s place of employment, and the debtor informed the collector she was represented by an attorney); Sanchez v. Client Services, Inc., 520 F.Supp.2d 1149 (N.D. Cal. 2007) (court found harassment where 54 calls to debtor’s work and 24 messages left there).

Daily Phone Calls

As with the volume of phone calls overall, there is likewise no bright-line rule as to how many calls are too many in one day.  Akalwadi v. Risk Management Alternatives, Inc., 336 F.Supp.2d 492 (D. Md. 2004).  But, as noted above, calling repeatedly in a short period is dangerous, as the Kuhn decision demonstrates where 6 calls in less than a half hour were found to violate § 1692d(5).  Re-calling after the debtor terminates a collection call (which demonstrates by conduct that she wants no further contact) may be found to violate the FDCPA.

On the other hand, up to 7 or more phone calls to a debtor in one day has been found not to constitute a violation of the FDCPA, as a matter of law, where the collector is still attempting to establish contact.  Tucker v. The CBE Group, 710 F.Supp.2d at 1302-03.  This result may not be the same after contact has been established.

Leaving Messages

The number of messages left is another factor the courts review in call volume cases.  The courts appear to accept a number of messages as reasonable – again, particularly where the collector is attempting to establish initial contact.  Robo messages have not been singled out.  The courts seem more understanding where it is established the debtor is refusing to respond despite receiving the messages.  See, e.g., Jones v. Rash Curtis, 2011 WL 2050195, at *3; Branco v. Credit Collection Servs., Inc., 2011 WL 3684503, at *6-*7.  A failure to leave a message is, without more, not a violation.  Udell v. Kan. Counselors, Inc., 313 F.Supp.2d at 1144.

The Content Of The Calls/Messages

Not surprisingly, the courts who have analyzed call volume cases also have looked to whether the content of the calls and/or messages provides additional evidence from which to infer the requisite intent to harass or annoy.  A substantive communication in which a collector berates, insults, or threatens a debtor may be used as a factor in a court finding excessive call volume, even though these may seem like distinct issues.  See Chiverton v. Fed. Fin. Group, Inc., 599 F.Supp.2d 96 (D. Conn. 2005) (collector called debtor a liar). 

Of course, the mere fact a debtor subjectively wishes she was not in debt, or the calls (during normal business hours) are inconvenient or embarrassing, does not, without more, create a violation.  VanHorn v. Genpact Services, LLC, 2011 WL 4565477 (W.D. Mo. 2/14/11); Thomas v. LDG Financial Servs., Inc., 463 F.Supp.2d 1370 (N.D. Ga. 2006).

Indeed, our courts have long recognized that debt collection naturally causes some embarrassment and annoyance.  But the fact that collection calls may be unwelcome, disruptive or annoying does not mean that, without more, they amount to a violation of federal or state law.  Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 393-394 (D. Del. 1991); Ross v. Creel Printing & Pub. Co., 100 Cal.App.4th 736, 747 (2002); Symonds v. Mercury Savings and Loan Assn., 225 Cal.App.3d 1458 (1990); Bundren v. Superior Court, 145 Cal.App.3d 784, 789 (1983).

Conclusion

As in most areas of your collection process, the frequency of your contacts (or attempted contacts) with debtors should be reviewed with common sense, as well as a sense of “risk management” under the FDCPA and Rosenthal FDCPA.  Recent cases suggest that courts are more understanding with a higher volume of calls where you, as the collector, are attempting to establish initial contact with the debtor (or even re-establish contact). 

From the author’s perspective, placing phone calls every other day is an acceptable and defensible frequency, especially when you are attempting to initially contact a debtor.  Phone calls every day are probably too many if they persist over a long time period.  Whatever the initial frequency, after a period of time, if the debtor does not respond, call frequency should, in my view, diminish, and ultimately calls should terminate if there is no response.  How long communications should be attempted is up to your business model, your agreement with your client, and common sense.

Be careful about more than one phone call to a particular phone number in one day; separate phone calls to separate debtor phone numbers will likely not be deemed a violation of § 1692d(5).

A relatively safe calibration for risk management purposes (for most agencies) would be no more than 4 to 5 calls in one week, and no more than 2 phone calls in one day.  Auto dialer campaigns may need to be adjusted accordingly.  Volumes higher than this are not out of compliance with the FDCPA and RFDCPA, but as call volume goes up, so does the risk of a potential violation being found.

Calls to a debtor’s work phone, calls after a cease and desist request, calls after reference to an attorney, and hostile, threatening calls are all more likely to lead to a finding of call volume harassment – as well as separate violations under other separate provisions of the FDCPA.  Repeated calls in a short period, and back-to-back calls are, by the very language of the statutes, problematic.

In VanHorn v. Genpact. Services, LLC, 2011 WL 4565477 (W.D. Mo. 2/14/2011), the court granted summary judgment in favor of the collector, and in so doing summarized the current state of the law as follows:

[N]ot all circumstances of persistently calling a debtor constitutes harassment. . .[A] debt collector does not violate  1692d as a matter of law where a debt collector calls on a daily, or near daily basis, absent evidence of egregious conduct or intent to harass. . .Nor does a debt collector necessarily engage in harassment by placing one or more phone calls in a single day after unsuccessful attempts to reach the debtor if unaccompanied by harassing conduct, such as threatening messages.

VanHorn, 2011 WL 45656477 at *3, *4.

Keep this language in mind in deciding how to comply with the FDCPA.  But understand that after a certain point, if the debtor has not returned your calls, high frequency not only has a decreasing marginal return in getting you paid, but also a correspondingly increased risk of getting you sued.

                     

1 Unless the collector can prove an affirmative defense such as bona fide error.  15 U.S.C. § 1692k(c) Return to Text

The above article and all articles in this website are not intended to be legal advice. Readers should consult an attorney to determine how the law applies to their particular circumstances. Also, please understand that the law constantly evolves and changes. Certain of the decisions and legal propositions quoted in the above article may be out of date or superseded. Questions or comments about the above article can be directed to its author, Mark E. Ellis.

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