How Many Calls Are Too Many?
John H. Bedard, Jr.
Bedard Law Group, P.C.
2810 Peachtree Industrial Blvd., Suite D
Duluth, GA 30097
Collectors need it. Consumers are demanding it. Regulators want it. Courts are learning about it. And with hawk-like vision, consumer attorneys are looking for it. What is it? Plain and simple; it is dialer control. How many calls do you make in a day, week, month? How many messages do you leave? Complaints focusing on “overdialing” are on the rise. Consumers are challenging courts to draw more definite lines in the law about how many calls are too many. Federal judges concede that the case law on this issue is anything but consistent. Don’t be the next poster child for “Dialers Gone Wild!”
Although the case law isn’t entirely consistent, court rulings are beginning to give some definition to the outer boundaries of the call volume issue. Over the last 12 months several courts have had an opportunity to discuss their ideas on call volume. For example, the following cases resulted in summary judgment in favor of the debt collector (i.e. the debt collector won the case):
Compare the above cases; however, to this next set of cases in which the debt collector did not fare as well:
· Bassett v. I.C. Sys., 2010 U.S. Dist. LEXIS 53697 (N.D. Ill. June 1, 2010)(Collector’s summary judgment denied – 31 calls over 12 days raises fact issue on harassment.)
· Krapf v. Nationwide Credit, Inc., 2010 U.S. Dist. LEXIS 57849 (C.D. Cal. May 21, 2010)(Collector’s summary judgment denied - 180 calls/month. 6 calls/day.)
· Langdon v. Credit Mgmt., LP, 2010 U.S. Dist. LEXIS 16138 (N.D. Cal. Feb. 24, 2010)(Collector’s motion to dismiss denied. Court says: 2+ calls/day “certainly may constitute harassment or annoyance.” “If . . . Defendant calls plaintiff and hangs up the phone, common sense dictates that defendant has not provided meaningful disclosure under FDCPA section 1692d(6).”
· Brown v. Hosto & Buchan, PLLC, 2010 U.S. Dist. LEXIS 116759 (W.D. Tenn. Nov. 2, 2010)(17 calls in 1 month sufficient to state a claim for causing a telephone to ring repeatedly or continuously with intent to annoy, abuse, or harass etc.)
· Valentine v. Brock & Scott, PLLC, 2010 U.S. Dist. LEXIS 40532 (D. S.C. Apr. 26, 2010)(11 calls in 19 days with 2 calls in 1 day is sufficient to state a claim).
The theme beginning to emerge from the case law is that debt collectors may not engage in an “unacceptable pattern of calls.” The problem; however, is that the consumer’s behavior will often be a factor in considering whether the pattern of calls is unacceptable. For example, the court in Katz specifically noted that the consumer never requested that the calls cease. In Jiminez, the court noted the collector never had live contact with the consumer. In Saltzman, the collector only made live contact with the consumer a handful of times and the court noted that the high volume of calls reflected the difficultly in reaching the consumer and not that the collector intended to harass the consumer. Had the consumer repeatedly disputed the debt, the court in Saltzman may have reached a different conclusion.
It is difficult to apply this emerging legal standard (i.e. the “unacceptable pattern of calls” standard) uniformly across a portfolio or a collector’s entire inventory, but instead likely requires case by case analysis. For example, three calls to a consumer in a single day may be lawful if the phone is never answered, at least three hours separate each attempt, and there has never been any live contact with the consumer. However, the same three calls may very well cross the line when the consumer answers each call, explains that they are the wrong Jane Smith, requests verification of the debt, and demands that all calls cease (including calls to family, the POE, nearbys etc.).
So what lessons can we learn from this smattering of judicial opinions on the issue? In the absence of consumer consent or instructions from a consumer about how they would like to be contacted, debt collectors interested in reducing litigation risk on the issue of call volume might consider the following:
Dialer Control, make it a new phrase in your IT department. Dialer Control, make sure employees at all levels know what it means. Dialer Control, resist the temptation to simply “crank it up.” Dialer Control, get more sophisticated with how you utilize your dialer. Everything in moderation . . . including outbound calls.