In this case,[1] an individual, Robert Doyle, brought suit against Midland Credit Management after enduring between 22 and 28 automated telephone calls to his cell phone during the fall of 2011. And he did not owe the debt.
The calls were of the supremely annoying type where, when you answer the phone, you are greeted with a pre-recorded message telling you to hold on until the caller picks up to speak to you. At first, Mr. Doyle simply hung up, then he started asking who was calling, prompting Midland to hang up without response. Eventually he learned the caller was Midland, so he told them they had the wrong number, and not to call again. In one instance, he spoke with a supervisor. Then he went back to hanging up. Finally, he resorted to litigation, alleging violations of the Fair Debt Collection Practices Act (FDCPA) 15 U.S.C § 1692c(b) – communication with third parties, and § 1692d – harassment or abuse.
Those familiar with the FDCPA see an issue right away – the plaintiff is not a debtor. Does the FDCPA still protect him? The court here says the answer is yes. And no. In rejecting plaintiff's 1692c(b) claim, Judge Gleeson referred to one of his own earlier opinions, Bank v Pentagroup Financial, LLC, No. 08–CV–5293 (JG)(RML), 2009 WL 1606420 (E.D.N.Y. June 9, 2009), a decision which held that non-consumers lacked standing to sue under 1692c. In that case, Judge Gleeson reasoned "that the purpose of § 1692c is to protect the consumer's privacy and reputation, not to protect the rights of third parties." Thus, Midland prevailed on its motion to dismiss this count.
As to the 1692d claim, Midland argued that the plaintiff lacked standing on this claim as well, and "indeed, Midland invited [the court] to conclude that its conduct was not harassing as a matter of law because it did nothing other than place Doyle on hold."
The court responded by first citing to the plain language of the statute, which states:
A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person (emphasis added) in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
....
(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller's identity.
The court then referred again to his opinion in Bank, in which he observed that the civil liability provision of § 1692k provides that any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person," (emphasis added), noting that 15 U.S.C. § 1692k(a) "intentionally utilizes the broadest possible language to allow any person exposed to a proscribed debt collection practice to sue."
Midland also argued that the plaintiff's complaint failed to state a claim under § 1692d because the complaint did not allege "any intent to annoy, harass, or oppress." Again, the court referred back to its opinion in Bank, in which it expressly rejected that argument, stating:
Though it is true that one of the enumerated means of violating the anti-harassment prohibition is the making of telephone calls "with intent to annoy, abuse or harass," § 1692d(5), the list of specified violations is explicitly not exhaustive; it is not intended to limit the general application of the provision's sweeping prohibition of conduct "the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." A debt collection program that negligently misplaces numerous calls to a single wrong number could plausibly have the natural consequence of harassment or abuse.
Accordingly, plaintiff's claims under § 1692d were allowed to proceed against Midland.
Sheril Stanford