Calls Not Harassing But May Be Third Party Communication Under FDCPA

July 26, 2013 in FDCPA, Ohio Courts by Brad Council

Last month, the United States District Court for the Northern District of Ohio made a ruling on a complaint brought forth by Karen Miller against Prompt Recovery Services, Inc under the Fair Debt Collection Practices Act (FDCPA) for alleged violations including harassing phone calls, making false threats, and communication with a third party.  Miller (Plaintiff) was seeking actual and statutory damages, attorney’s fees, and costs.  Prompt Recovery Services, Inc. (Defendant) filed a motion for summary judgment on all claims brought forth by Miller.

 

After Plaintiff fell behind on her credit card payments, she began receiving phone calls from Defendant.  Plaintiff stated that she received 27-32 phone calls from Defendant over the period of four months and that she would receive multiple calls in a single day on some occasions.  On three occasions, Plaintiff spoke with Defendant about this debt.  On one occasion, Plaintiff’s son answered the phone and was questioned about his father’s employment.  During the conversation between Plaintiff’s son and Defendant, the son was never informed that the person he was speaking with was attempting to collect a debt.  After the phone was handed over to Plaintiff, she went over settlement options and payment options with Defendant.  At this time, Plaintiff was informed that the small monthly payment she was willing to pay would not cover the interest and would not decrease the balance due at all.  Also at this time, Defendant informed Plaintiff that if payments were not made on the account, then it would be recommend that suit be filed against Plaintiff, so a wage garnishment could be filed against her husband and a lien would be placed on her house.

 

In allegations against Defendant, Plaintiff brought forth the following provisions of the FDCPA:  15 U.S.C §1692d (anti-harassment), 15 U.S.C. §1692e (threatening behavior), and 15 U.S.C. §1692c(b) (communications with third parties).  The anti-harassment provision of the FDCPA states that “[a] debt collector may not engage 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.  The statute goes on to give an example by stating specifically that a debt collector is prohibited from “using the 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.”   Plaintiff alleges that the frequency in which Defendant contacted her coupled with the rudeness in which Defendant informed her that her payments were not large enough to satisfy the debt constitutes harassment under 15 U.S.C. §1692d.  However, the court reasoned that 33 phone calls over a four month period was not a high enough volume of calls to violate the statute and that, even if Defendant was rude in his statement that her payments were not large enough to satisfy the debt, his statement was true and accurate.  The court therefore, granted Defendant’s motion for summary judgment on the issue of harassment.

 

The FDCPA section involving threatening behavior states that a “debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt” and prohibits a debt collector from “”threat[ening] to take action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. §1692e.  Plaintiff alleges that Defendant violated this statute by threatening to take legal action in the form of filing a lien on her property and garnishing her husband’s wages if payments were not made.  Defendant argues that the agent was not threatening Plaintiff, but merely informing her of the recommendation that would be taken to Defendant’s client if the debt was not satisfied.  The court recognizes that the law is unclear on whether or not threatening to take legal action constitutes a thread under the FDCPA. However, the court reasons that the statement was not false or misleading.  By looking at Defendant’s history, the court established that the “threat” to take legal action was not made without the intent to follow through; therefore, the court ruled in favor of the defendant’s motion for summary judgment on this issue as well.

 

The FDCPA also prohibits a debt collector from discussing the debt owed with anyone other than the consumer under 15 U.S.C. §1692c(b).  Plaintiff alleges that Defendant violated this statute when the agent spoke with her son about her husband’s employment information.  Defendant argues that the collector was not in violation of §1692c(b) because he was inquiring about the husband’s employment information and not the Plaintiff’s.  However, the court reasons that “[f]or the purposes of § 1692c, the definition of consumer is expanded to also include “the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.” § 1692c(d). As George Miller’s spouse, plaintiff has standing to sue.”  Defendant also argues that the conversation with the minor child does not qualify as a “communication” by definition in the statute because the collector did not inform the child that he was calling in connection with Plaintiff’s debt.  The court disagrees, arguing that “it seems unlikely that Congress intended to define the term ‘communication’ so narrowly that it would essentially sanction the use of third-parties to coerce payment.”  Lastly, Defendant argues that if the conversation with the child is considered a communication under the FDCPA, then it falls under the safe harbor provision.  The safe harbor provision allows collectors to interact with third-parties for the purpose of obtaining location information about the debtor, but the statute states that the collector must identify himself and his reason for calling.  In this case, the collector did not meet either of these requirements nor did he ask any questions relating to location information.  The court denied Defendant’s motion for summary judgment on this issue.

 

Plaintiff was seeking actual damages in addition to statutory damages, attorney’s fees and court costs in this case.  However, the court reasoned that Plaintiff did not offer any evidence to prove actual damages and is not entitled to them.  The court concludes the opinion by granting Defendant’s motion for summary judgment in part, while dismissing Plaintiff’s request for actual damages, as well as her claims alleging harassment and threatening behavior with prejudice.  However, “Plaintiff’s claim under §1692c(b) and her prayer for statutory damages survive summary judgment.”

The Full Text of the Opinion May Be Found Here:  http://goo.gl/WGpLuW

 

Special thanks to Brittany Page for her contributions to this article.  Brittany is a paralegal with Slovin & Associates Co., L.P.A.