Debt collector harassment is Illegal – Here’s what you can do

11 U.S.C. Section 1692(d) covers harassing phone calls from debt collectors and other forms of debt collector harassment. It says:

“A debt 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.”

What is debt collector harassment?

Under this section debtors may be protected against any form of improper collection conduct, even those that are not specifically addressed in the FDCPA. Debt Collector harassment includes any of the following:

• Threats to contact third parties
• Telephone messages left with third parties when the collector could have reached the consumer directly
• Intimidating, belittling, criminal and insulting behavior
• A letter was meant to intimidate consumer in accusing the consumer of purposefully ignoring the debt and believing that the creditor would forget about it and warning consumer that it was debt collector’s job to make sure the debt was not forgotten
• Calling the consumer at her place of employment to collect on the debt notwithstanding warnings on prior occasions that she could not talk at work
• A collector’s failure to provide meaningful self-identification when communicating other than by telephone
• Continuing to collect, including filing suit and obtaining judgment, after multiple notices of bankruptcy discharge

How do courts decide what counts as debt collector harassment?

Not all harassment is actionable under the law. Judges have made up a fiction ’to judge whether debt collectors’ conduct violates the law. The hypothetical standard is called the “least sophisticated consumer” standard and it presupposes that the consumer has “rudimentary amount of information about the world and a willingness to read a collection notice with some care.”

As one court observed, the least sophisticated consumer “isn’t a dimwit. She may be uninformed, naive, and trusting, … but she has rudimentary knowledge about the financial world, and is capable of making basic logical deductions and inferences.”

The least sophisticated consumer standard requires more than “simply examining whether particular language would deceive or mislead a reasonable debtor” because a communication that would not deceive or mislead a reasonable debtor might still deceive or mislead the least sophisticated consumer.

Instance of possible harassment should be viewed from the perspective of a consumer relatively susceptible to harassment. If a debt collector knows about a person’s relatively high sensitivity to misconduct, then even mildly abusive conduct has the “natural consequence” of harassment and oppression.

How many calls from a debt collector is considered harassment?

This is a tricky question. The best answer is ‘It depends.’ Some courts have concluded that juries should generally decide the reasonableness of telephone calls. Others have held that even daily calls unaccompanied by egregious conduct do not raise a triable issue of fact. See Carman v. CBE Group, Inc., 782 F. Supp. 2d 1223, 1230-31 (D. Kan. 2011) (collecting cases holding both). Courts generally agree, however, that a high volume of calls will rarely if ever make out a FDCPA violation on its own. As one district court observed,

A remarkable volume of telephone calls is permissible under FDCPA jurisprudence. See VanHorn v. Genpact Servs., LLC, No. 09–1047–CV–S–GAF, 2011 WL 4565477, at *1 (W.D. Mo. Feb. 14, 2011) (finding 114 calls in a four-month period did not violate the FDCPA); Carman v. CBE Grp., Inc., 782 F. Supp. 2d 1223, 1232 (D. Kan. 2011) (granting summary judgment in favor of a defendant who placed 149 telephone calls to the plaintiff during a two-month period); Clingaman v. Certegy Payment Recovery Servs., No. H–10–2483, 2011 WL 2078629, at *5 (S.D. Tex. May 26, 2011) (granting summary judgment for a defendant who placed 55 phone calls over three and one-half months).

Zortman v. J.C. Christensen & Assocs., Inc., 870 F. Supp. 2d 694, 707 (D. Minn. 2012).

Many courts have granted summary judgment to debt collectors—holding no jury could find an intent to harass—while specifically noting that under the facts of the case the debt collector did not continue calling after being asked to stop. E.g., Tucker v. CBE Grp., Inc., 710 F. Supp. 2d 1301, 1305 (M.D. Fla. 2010) (granting summary judgment where although the number of calls was “somewhat high,” the debt collector left a total of six messages, made no more than seven calls in a single day, did not call back on the same day as leaving a message, and was not asked to stop calling; and the evidence showed debt collector intended to reach the plaintiff’s daughter rather the plaintiff); Waite v. Fin. Recovery Servs., Inc., 2010 WL 5209350, at *4 (M.D. Fla. Dec. 16, 2010) (granting summary judgment where debt collector called plaintiff approximately once per day, not at inconvenient times, and left no more than six messages, and plaintiff never confirmed or disputed the debt or asked the collector to cease calling); Katz v. Capital One, 2010 WL 1039850, at *3 (E.D. Va. Mar. 18, 2010) (granting summary judgment where none of debt collector’s calls were back to back, were made at inconvenient times, or occurred after plaintiff asked collector to stop calling). Because the court in each of these cases mentioned the debt collector had not called the plaintiff after it was asked to stop, these cases could be read to suggest that had the debt collector continued to call after being asked to stop the question of intent would have been for the jury.

Conversely, district courts have inferred an intent to harass where—among other things—a debt collector continuing calling the debtor after the debtor had asked not to be called. E.g., Gilroy v. Ameriquest Mortg. Co., 632 F. Supp. 2d 132, 136 (D. N.H. 2009) (finding for plaintiff where she told the debt collector to stop calling her, that the calls were upsetting her, and that she did not have money to pay the debts; calls were placed late in the evening, and callers sometimes called her a “liar” on the phone); Chiverton v. Fed. Fin. Grp., Inc., 399 F. Supp. 2d 96, 99-100 (D. Conn. 2005) (finding for plaintiff where debt collector repeatedly called him at work despite repeated requests to stop, called him a liar, and told the plaintiff’s supervisor about the alleged debt). These cases tend to support Fox’s argument that an intent to harass may arise when the facts include continued calls after the plaintiff has asked the debt collector to stop calling.

How to stop debt collector harassment?

Strategy: Keep records of all correspondence between you and the debt collector to help substantiate your claim of violations.