NJ Fed. Court Holds 18 Calls Over Two Weeks – Mostly Unanswered – Did Not Violate FDCPA

The U.S. District Court for the District of New Jersey recently ruled that 18 telephone calls to a consumer over a two-week period – of which 17 were unanswered, and the last where the consumer hung up – did not violate the federal Fair Debt Collection Practices Act (FDCPA).

In so ruling, the Court also affirmed that under the federal Telephone Consumer Protection Act (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.

A copy of the opinion in Chisholm v. AFNI, Inc. is available at:  Link to Opinion.

The consumer had a delinquent television services account that was referred to a debt collector for collection. The consumer had previously provided his telephone number to the television services provider. This information was given to the debt collector as part of the delinquent account.

The debt collector began contacting the consumer on April 30, 2015.  The debt collector called the consumer’s cell phone multiple times until May 12, 2015.  On May 18, 2015, the debt collector received a letter from the consumer’s attorney demanding a stop to all calls.

As you may recall, to prevail on an FDCPA claim, a consumer must prove that (1) she is a consumer, (2) the debt collector is a debt collector, (3) the debt collector’s challenged practice involves an attempt to collect a debt as the FDCPA defines it, and (4) the debt collector has violated a provision of the FDCPA in attempting to collect the debt.

In this case, it was undisputed that the consumer was a consumer, the debt collector was a debt collector, and that the debt collector was trying to collect a debt owed to the television service provider.

The consumer specifically alleged a violation of  15 U.S.C. §§ 1962d and 1962d(5). 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.” 15 U.S.C. § 1692d. The statute identifies certain conduct that is a per se violation, 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.” Id. at 1692d(5).

The debt collector argued that the consumer could not show the 18 calls to his cellular telephone constituted a violation of § 1692d or § 1962d(5).

The consumer disputed the number of phone calls only with his personal recollection, which were contradicted by evidence shown on telephone logs. The Court found the record established the debt collector only made 18 calls to the consumer over 13 days, between the hours of 9:30 a.m. and 7 p.m., as allowed under the FDCPA.

As to whether conduct is harassing, the Court noted that “actual harassment or annoyance turns on the volume and pattern of calls made,” and “[t]here is no consensus as to the amount and pattern of calls necessary for a Court to infer a debt collector intended to annoy, abuse, or harass a debtor.”  In addition, numerous courts have found that the number of calls alone cannot violate the FDCPA; there must also be outrageous conduct in order “to have the ‘natural consequence’ of harassing a debtor.”

The Court also noted that courts usually allow juries to decide whether a debt collector’s conduct is annoying, abusive or harassing.  However, “if the conduct has — or does not have — the natural consequence of harassing, oppressing or abusing the consumer as a matter of law, summary judgment is appropriate.”

The Court here found that the debt collector’s calls were neither excessive nor harassing, as the calls were limited to no more than three times in one day, between regular business hours, only one call resulted in actual contact, the representative was polite, and the debt collector immediately ceased communications once requested.

Accordingly, the Court found the debt collector was entitled to summary judgment as a matter of law on the FDCPA claims.

The consumer also alleged a violation of 15 U.S.C. § 1692f, a catch-all provision for conduct that is “unfair” but not specifically identified in any section of the FDCPA. Courts have routinely found that § 1692f cannot be the basis for a separate claim for claims already addressed by another section of the FDCPA.

Here, the consumer’s claim was based upon the same conduct as the prior counts.  Accordingly, the Court granted the debt collector’s motion for summary judgment as to this claim as well.

The consumer also sued for alleged violation of the TCPA.  As you may recall, the TCPA prohibits the use of any automatic telephone dialing system or an artificial voice to make nonconsensual calls to cell phones.

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. Prior express consent extends to “[c]alls placed by a third party collector on behalf of that creditor.”

Here, the parties disagreed as to whether the consumer provided his prior express consent to be called on his cell phone.

However, the Court noted that the consumer had a contract with the television service provider where he provided his address and phone number. The consumer alleged this was insufficient to show prior consent, but he did not provide any evidence that he ever revoked the original consent.

Accordingly, the District Court granted in full the debt collector’s motion for summary judgment.

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Morgan Hochheiser is an Associate in Maurice Wutscher's Chicago office. She earned her Juris Doctor from The John Marshall Law School. While in law school, she served as the Symposium Editor for The John Marshall Law School Journal of Information Technology and Privacy Law, as a teaching assistant for Contracts, and as a member of the Moot Court Honor Society.