Sunday, October 2, 2016

FYI: 8th Cir Rejects FDCPA Claims Regarding Follow Up Calls for Location Information, Alleged Harassment

The U.S. Court of Appeals for the Eighth Circuit recently held that a debt collector did not violate the federal Fair Debt Collection Practices Act ("FDCPA") for making subsequent telephone calls to a person other than the consumer regarding the location of the debtor, because the debt collector reasonably believed that the person's initial response was incomplete.


In so ruling, the Eighth Circuit held as a matter of law that fourteen calls over a period of approximately two months did not rise to the level of harassment prohibited under FDCPA, at 15 U.S.C. § 1692d(5). 


A copy of the opinion is available at:  Link to Opinion


A credit card company hired a debt collector to collect a consumer's credit card debt. The credit card company provided the debt collector with three telephone contact numbers for the consumer, two cell phone numbers with Minnesota area codes, where the consumer apparently resided, and a North Dakota landline that was the home phone number of an individual, the consumer's father.  The consumer had not lived with her father for nearly two decades. 


Beginning December 18, 2013, and continuing through January 20, 2014, the debt collector called the individual's landline number twelve times without a response.  The individual's caller ID revealed that the debt collector had called but not the reason for the call.  His phone did not record voicemail messages.


On January 20, 2014, the individual returned the twelfth call from the debt collector. He spoke to an employee, the person in charge of the consumer's collection file.  In a recorded conversation, the individual asked why he was called because he was not on any of his daughter's accounts.  The employee said she could not discuss the file with him and then said either, "She has her phone number. We can get in contact with her and take yours out," or, "If you have her phone number, we can get in contact with her and take yours out." The individual responded, "Ah, let me call her and find out what she's been getting."


After that conversation, the debt collector called the individual twice more, one autodialed call, and once when his number came up on the employee's call list.  The debt collector's employee testified that this call was a mistake, as she had intended to remove the individual's phone number from the file after the January 20 call.  The debt collector made no further calls to the individual.


The individual brought suit against the debt collector asserting violations of the FDCPA for the two unanswered calls made after the January 20 conversation.   The district court granted summary judgment to the debt collector, and the individual appealed. 


On appeal, the Eighth Circuit first addressed the individual's claim under FDCPA section 1692b(3).  As you may recall, this section prohibits any debt collector from communicating with any person other than the consumer more than once for the purpose of acquiring location information about the consumer unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information.  15 U.S.C. § 1692b(3).


The Court of Appeals accepted the individual's position that it was reasonable to infer that the debt collector called the individual to acquire information about the consumer.  At issue then was whether the debt collector "reasonably believed" that the individual did not provide a complete response in his January 20 communication with the debt collector's employee.  


The Eighth Circuit first ruled that the reasonableness of a debt collector's conduct under FDCPA section 1692b(3) is an objective legal standard.  The Court then reviewed the substance of the January 20 communication.  The Court found that the individual did not refuse to provide location information or state that he could not provide it.  The individual did not even say that the consumer could not be reached at the number the debt collector called.  The individual simply said he wanted to call his daughter and check with her before responding further.


Under these circumstances, the Court of Appeals agreed with the district court that it was objectively reasonable for the debt collector to believe that the individual, as the parent of the consumer, had or could obtain location information about his daughter, permitting a follow-up call to learn if he had acquired or was now willing to provide "correct or complete location information," as allowed under 15 U.S.C. § 1692b(3).  Consequently, the Eighth Circuit held that summary judgment was proper as to this claim. 


Next, the Court of Appeals analyzed the individual's claim under FDCPA section 1692d(5).  As you may recall, this section prohibits a debt collector from causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with the intent to annoy, abuse, or harass any person at the called number. 


The individual did not preserve on appeal the merits as to whether the communications were legally harassing, but instead argued that summary judgment was improper because there was a material issue of fact as to the debt collector's intent in making the telephone calls. 


The Eighth Circuit did not delve into the individual's argument that there was a material issue of fact as to intent.  Instead, the Court found, as a matter of law, that no reasonable jury could find that the debt collector's fourteen calls over the period of approximately two months rose to the level of harassment prohibited under FDCPA section 1692d(5). 


Accordingly, the Eighth Circuit affirmed the judgment of the district court. 





Ralph T. Wutscher
Maurice Wutscher LLP
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