Placing 77 calls over a 73-day period is not enough to be considered a violation of Section 1692f of the Fair Debt Collection Practices Act, but is enough to be considered a violation of Section 1692d(5) of the FDCPA, a District Court judge in California has ruled in only partially denying a defendant’s motion for summary judgment.
A copy of the ruling in the case of Ammons v. Diversified Adjustment Service, Inc., can be accessed by clicking here.
The defendant allegedly placed 77 calls to the plaintiff during a 73-day period to try and collect on an unpaid cell phone bill. The plaintiff picked up the phone five times and the sum total of the time spent on those five calls was 217 seconds. On two of the calls, the plaintiff asked for the defendant to stop calling her.
The plaintiff filed suit, alleging the defendant violated the Telephone Consumer Protection Act by contacting her on her cell phone using an automated telephone dialing system without her consent. The judge granted the defendant’s motion for summary judgment, ruling the LiveVox HCI dialer used by the defendant does not meet the definition of an ATDS.
The judge denied the defendant’s summary judgment motion on the alleged 1692d(5) violation, ruling that a “reasonable juror could find that the volume and pattern of calls here indicate an intent to harass, abuse, or annoy.”
“The undisputed facts show that DAS called Ammons’s 3436 Cell Phone seventy-seven times in seventy-three days, sometimes up to five times per day, including calling after she asked DAS to stop,” wrote Judge Otis Wright II of the District Court for the Central District of California. “This alone could indicate DAS’s intent to harass. However, DAS never threatened Ammons or used abusive language, and on the days that DAS reached her, no further calls were placed on the same day. Also, out of seventy-seven attempts, DAS reached Ammons only five times. These facts could evidence DAS’s intent to reach Ammons rather than an intent to harass or annoy.”
The judge granted the defendant’s summary judgment motion on the alleged 1692f violation, ruling there was “no evidence” that the defendant deployed any of the examples provided in 1692f of the FDCPA in attempting to collect on the debt.
