We hear many complaints from consumers that they are getting so
many calls from the collector that it is harassing and
abusive. The
Fair Debt Collection Practices Act deems it a violation of the
law to harass a debtor, and one of the ways it can be done is
through a campaign of constant calling. This is done in the
hopes that the consumer will just give in and make payment so that
the calls will stop. The
statute says that a debt collector cannot “caus[e] a
telephone to ring…repeatedly or continuously with the intent to
annoy, abuse, or harass the person at the called
number.”
15 U.S.C. 1692d(5).
The natural sense of the consumer is to feel abused if a debt
collector calls more than one time a day, or even multiple times a
week, even if it is only one time or less per day. However,
that is not necessarily a violation. Surely, we feel harassed
any time a collector is asking for money, but the law holds a
little higher of a standard for a compensable violation.
Moreover, our opposition has crafted arguments against claims under
1692d(5) and some are successful.
The first issue is the “called number” issue. Many people
have a home phone, a cell phone, and sometimes a work number as
well. If a collector calls each number just one time, it
translates to three calls in a day to the consumer. Is that
enough for harassment? Likely no. Under certain
circumstances it may, such as having a discussion just the day
before with the collector wherein it was made clear that calls the
next day would not be necessary. However, most often those
three calls will not pass for a claim because each number was just
called once.
This leads to the next issue, or defense we must face – that the
calls were not made with the intent to annoy, abuse, or
harass. This is the argument that we see most
often. Collectors will claim that the attempt to call
was merely to get in touch with the person and not to annoy or
harass. They will point to the fact that the calls were made
various points of the day (such as 8:00 a.m., noon, and then 4:00
p.m.) to show that they were just seeing when was the best time to
call. Typically, when they do call three times in a single
day, it is spread out throughout the whole day. However, if
the calls were all close in time, say within a single hour, then
their excuse fails.
Thus, whether a collector’s multiple calls will be deemed
harassment under the FDCPA is not cut and dry.
Ultimately, you will need to show some facts which can lead to the
conclusion that the intent of the debt collector is to harass you
into paying the debt.
A final point in this area is that the person making the claim
of harassment does not have to be the actual debtor. By
including the language “the person at the called number” Congress
made it clear that the protection of this section extends not just
to the debtor, but to anyone who has been called multiple times by
the debt collector. Thus, even if the collector has the wrong
number, the person getting the calls may have a claim under the
FDCPA. We have seen this on many occasions where an
innocent person received numerous calls. The person who
receives the calls warns the collector that they have the wrong
number time and time again, only to continue receiving calls
because someone will not update their records. Another common
scenario is when family members, usually parents, receive calls
looking for their child who may owe money. When the parent
advises that their child moved out of the home years before, the
collector ignores this and continues to call there looking for
their money. As it is seen here, the protections
of the FDCPA from debt collector harassment extends beyond the
debtors themselves.