Beeders v. Gulf Coast Collection Bureau

796 F.Supp.2d 1335

Eric BEEDERS, Plaintiff,

v.GULF COAST COLLECTION BUREAU, Defendant.

Case No. 8:09–CV–00458–T–AEP.

United States District Court, M.D. Florida,Tampa Division.

Jan. 12, 2011.

Timothy Condon, Vollrath–Condon, PA, Tampa, FL, for Plaintiff.

Ernest H. Kohlmyer, III, South Milhausen, PA, Orlando, FL, for Defendant.

FINAL ORDER

ANTHONY E. PORCELLI, United States Magistrate Judge.

Following a November 17, 2010 bench trial, the Court makes the following findings of fact and conclusions of law:

I. BACKGROUND

Eric Beeders (the “Plaintiff”) brought this lawsuit against Gulf Coast Collection Bureau, Inc. (the “Defendant”) for violations of the federal Fair Debt Collection Practices Act (“FDCPA”).¹ More particularly, the Plaintiff claims that multiple telephone calls made to him by the Defendant during 2007 and 2008 were intended for the purpose of annoying, abusing, or harassing him into making payments on a debt that he could not or would not pay at those times, thus violating the FDCPA at 15 U.S.C. § 1692d(5). The Plaintiff further claims that multiple messages left for him on his telephone, measured from the perspective of the least sophisticated consumer, failed to adequately convey the fact that the calls were made by a debt collector for the purpose of collecting a debt, in violation of the FDCPA at 15 U.S.C. §§ 1692d(6) and 1692e(11).

The Defendant has denied all liability and damages, which have been alleged against it. The Defendant asserts that the frequency and volume of the telephone calls to the Plaintiff was not intended to annoy, oppress, or harass the Plaintiff, and therefore the Defendant has not violated FDCPA Section 1692d(5). The Defendant also asserts that the audio messages left for the Plaintiff have fully complied with FDCPA Sections 1692d(6) and 1692e(11) by adequately identifying the Defendant as a debt collector explicitly in its name and based on the information provided by the disclosure. The Defendant argues that the “least sophisticated consumer” would understand and comprehend that based on the information provided in this message, the nature of the call was for a debt collection purpose. Lastly, the Defendant contends that even if a technical violation of these sections exist, the Defendant is protected by the statute's “bona fide error” defense in that the actions were not intentional, and occurred despite reasonable procedures adapted to avoid such errors.

II. FINDINGS OF FACT ²

The following facts have been established by a preponderance of credible evidence:

1. The Defendant made a series of approximately forty (40) automated telephone calls to the Plaintiff from January 2008 to May 2008, whereupon voice messages were left for him on approximately fifteen (15) occasions.

2. The Plaintiff recorded ten (10) of these messages, and they all contain substantially the same “script” as follows:

This message is for Eric H. Beeders. If you are not Eric H. Beeders please hang up or disconnect. If you are Eric H. Beeders, please continue to listen to this message. [3 second pause] Please return this call to Roy Dillard from Gulf Coast Collection Bureau. Please call 877–827–4820 and ask for file number G31852, again that's file number G31852.

3. The calls made by the Defendant to the Plaintiff were placed no sooner than two days from the previous call, and never was more than one call placed per day.

4. Following the last of these calls, the Plaintiff contacted the Defendant, requesting that the Defendant stop calling him, to which the Defendant complied. While the Plaintiff claimed at trial that he also asked the Defendant to stop calling him three times previous to the last call, the Court finds the Plaintiff's testimony in this regard not credible.

5. The Defendant's messages were sufficient to inform a “least sophisticated consumer” that the call was being made by a debt collector for the purpose of collecting a debt.

III. CONCLUSIONS OF LAW ³

The FDCPA is a strict liability statute, the purpose of which is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e) (2009). The Plaintiff has alleged two categories of violations under the FDCPA: (1) the harassment provisions of FDCPA Section 1692d(5); and (2) the disclosure provisions of FDCPA Section 1692d(6) and 1692e(11).

1. The Harassment Provisions Under FDCPA Section 1692d(5)

The FDCPA Section 1692d(5) provides that a debt collector may not cause “a telephone to ring or engag[e] any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” In determining liability under FDCPA Section 1692d(5), courts often consider the volume and pattern of calls made to the debtor. See Brandt v. I.C. Sys., Inc., No. 8:09–cv–126–T–26MAP, 2010 WL 582051, at *2 (M.D.Fla. Feb. 19, 2010) (noting that “[c]ourts have held that ‘[w]hether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls.’ ”) (quoting Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492, 505 (D.Md.2004)); Krapf v. Nationwide Credit Inc., No. SACV 09–00711 JVS (MLGx), 2010 WL 2025323, at *3–4 (C.D.Cal. May 21, 2010); see also Kuhn v. Account Control Tech., Inc., 865 F.Supp. 1443, 1453 (D.Nev.1994) (granting summary judgment to plaintiff where defendant made six calls in twenty-four minutes); Bingham v. Collection Bureau, Inc., 505 F.Supp. 864, 873 (D.N.D.1981) (finding a violation of the FDCPA where the defendant immediately called back after the plaintiff hung up). Under FDCPA Section 1692d(5), “[a]ctionable harassment or annoyance turns on the volume and pattern of calls made, irrespective of the substance of the messages.” Majeski v. I.C. Sys., Inc., No. 08 C 5583, 2010 WL 145861, at *3 (N.D.Ill. Jan. 8, 2010). Further, the Eleventh Circuit has held that “claims under § 1692d should be viewed from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse.” Waite v. Financial Recovery Services, Inc., No. 8:09–cv–02336–T–33AEP, 2010 WL 5209350, at *3 (M.D.Fla. Dec. 16, 2010) (citing Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir.1985)).

In the instant case, the calls at issue took place from January 2008 to May 2008. These calls were received by the Plaintiff from the hours of approximately 8:00 A.M. to 11:00 A.M., and occurred at a frequency of no more than one call per day, and no more than one call every two days. (Tr. Ex. 3.) Absent additional evidence demonstrating a significantly larger volume and frequency of calls, the Court finds that the Defendant's calls did not constitute “egregious conduct” meant to harass, annoy, or abuse the Plaintiff. See Waite v. Financial Recovery Services, Inc., No. 8:09–cv–02336–T–33AEP, 2010 WL 5209350, at *5 (M.D.Fla. Dec. 16, 2010) (noting that even though the call log showed that the defendant placed up to twenty-nine (29) calls in a single month and up to four (4) calls in a single day, nothing in the record indicated “that the phone calls were intended to be annoying, abusive, or harassing”); cf. Krapf v. Nationwide Credit Inc., No. SACV 09–00711 JVS (MLGx), 2010 WL 2025323, at *3–4 (C.D.Cal. May 21, 2010) (finding a triable issue of fact where the plaintiff's call volume amounted to “a total of over 180 calls for the month of May alone”); Bassett v. I.C. Sys., Inc., 715 F.Supp.2d 803, 810 (N.D.Ill.2010) (denying the defendant's summary judgment motion where the defendant placed thirty-one (31) calls to the plaintiff over a twelve (12) day period). Thus, this Court finds that the Defendant's conduct did not rise to the level of harassment required to find a violation of FDCPA Section 1692d(5).

2. Disclosure Provisions Under FDCPA Sections 1692d(6) and 1692e(11)

FDCPA Section 1692d(6) prohibits “the placement of telephone calls without meaningful disclosure of the caller's identity.” In addition, FDCPA Section 1692e(11) states that the following conduct is a violation of the FDCPA:

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

15 U.S.C. § 1692e(11) (2009) (emphasis added). The Eleventh Circuit has adopted the “least sophisticated consumer standard” in reviewing alleged violations of the FDCPA. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (11th Cir.1985). “The least sophisticated debtor standard is lower than simply examining whether particular language would deceive or mislead a reasonable debtor.” Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir.1999) (citing Swanson v. Southern Or. Credit Service, 869 F.2d 1222, 1227 (9th Cir.1988)). “Actual confusion is not necessary” and rather violations are assessed “through the eyes of a hypothetical ‘unsophisticated consumer’ [or least sophisticated consumer].” Keen v. Omnibus International, No. 98 C 3947, 1998 WL 485682, at *2 (N.D.Ill. August 12, 1998) (noting that in the context of a collection letter, “the true test remains whether the letter, taken as a whole, would confuse an unsophisticated consumer about his or her rights.”). In the present case, whether the Defendant has violated the FDCPA hinges upon whether the audio message, taken as a whole and from the point of view of the least sophisticated consumer, failed to...