What Constitutes "Harassment" in High Volume Callers Under the FDCPA
Posted: Monday, April 22, 2013
Section 1692d of the Fair Debt Collection Practices Act
("FDCPA") a 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. This conduct includes but is not
limited to, 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.
15 U.S.C. § 1692d(5).
It appears the biggest issue with compliance under the FDCPA is
abiding with the sections of the statute that are ambiguous…where
should a collector draw the line and whose interpretation should be
used to determine when that imaginary line has been crossed?
This question often accompanies the discussion of what constitutes
repeated and continuous contact as set forth in Section
1692d(5). In this grey area who determines what amounts to
repeated and continuous contact, the consumer or the
Currently, there is no hard and fast rule which establishes how
many phone calls to a debtor are deemed excessive and harassing,
and hence a violation of the FDCPA. If a case makes it a
court of law, individual judges are left to decide whether the
conduct of the collector
amounts to a violation. In Arteaga v. Asset Acceptance, LLC,
the court explained that while the FDCPA is generally a strict
liability statute, meaning that even if an inadvertent violation
occurs, liability normally follows. 733 F.Supp.2d 1218, 1227
(E.D. Cal. 2010). However, certain sections like 1692d(5) add
an intent requirement that must be proven by the debtor, making the
standard by which harassment is judged an objective one.
While the FDCPA does not define what repeatedly or continuously
means, like its
express prohibition of the timing of calls (not before 8:00
a.m. or after 9:00 p.m.), there is no such definition in the FDCPA
against calling a debtor every day or even more than once in the
same day. 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).
There are however several factors that go into determining whether
the contact from a collector amounts to the "repeated" and
continuous" harassment referred to in the FDCPA. Some of
these factors include, immediate call backs, calls after a cease
and desist request, high volume of calls over a short period of
time, calls after reference to an attorney, calling a debtors place
of employment, daily phone calls and leaving messages.
We have covered this topic previously including blogs (click to
Multiple Calls From Collectors as Harassment,
What Are Too Many Calls Considered Harassment, and Multiple
Calls -What Should I Do.
Indeed, call volume is a complaint that we hear from many
consumers every day. SmithMarco is committed to protecting consumers' rights. If you are
receiving repeated or continuous telephone calls from a debt
collector or feel your rights have been violated in any way under
the FDCPA, contact SmithMarco P.C. for a
free case review.