Durthaler v. Accounts Receivable Management, Inc.
2012 U.S. Dist. LEXIS 57591
S.D. Ohio
2012

Background

  • Durthaler purchased a 2005 Chevrolet Colorado and financed it through Nuvell National Auto Finance.
  • He surrendered the vehicle to Nuvell in approximately June 2010, with about $13,000 owed.
  • Accounts Receivable Management (ARM) began debt collection efforts in August 2010, making 32 calls to Durthaler.
  • Two calls were made to Durthaler's roommate/landlord; after the first, he asked that calls to that number stop, but calls to the roommate continued.
  • Durthaler informed ARM that he could not pay the debt, and (in general) that he should not call his roommate.
  • Plaintiff alleged FDCPA violations (harassment under 15 U.S.C. § 1692d and disclosure under § 1692e(ll)); cross-motions for summary judgment were filed.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether the calls violated FDCPA 1692d Thirty-plus calls (including to roommate) show intent to harass. Calls were not frequent enough or sufficiently harassing; there was no back-to-back calling as claimed. No genuine issue; court finds no harassment under 1692d.
Whether the voicemails violated FDCPA 1692e(ll) Two of four voicemails did not indicate debt collection, violating 1692e(ll). Voicemails complied or were excused by waiver/bona fide error defense; standing issues not decisive. Court found 1692e(ll) violation defenseable under bona fide error defense; grants summary judgment for defendant on this claim.
Whether the bona fide error defense applies to the 1692e(ll) claim Defendant waived the defense and cannot rely on it. Defendant maintained procedures and acted in good faith; waiver did not extend to § 1692e(ll). Defense applies; defendant entitled to summary judgment on the 1692e(ll) claim.

Key Cases Cited

  • Hicks v. America’s Recovery Solutions, LLC, 816 F.Supp.2d 509 (N.D.Ohio 2011) (frequency and context of calls inform harassment analysis)
  • Brown v. Hosto & Buchan, PLLC, 748 F.Supp.2d 847 (W.D.Tenn.2010) (context of calls informs intent to harass)
  • Meadows v. Franklin Collection Service, Inc., 414 Fed.Appx. 230 (11th Cir.2011) (pattern of calls weighed in harassment analysis)
  • Gilroy v. Ameriquest Mortg. Co., 632 F.Supp.2d 132 (D.N.H.2009) (inconvenient call times as a factor in harassment)
  • Beattie v. D.M. Collections, Inc., 754 F.Supp.383 (D.Del.1991) (bona fide error defense supported by procedures and training)
  • Chiverton v. Fed. Fin. Group, Inc., 399 F.Supp.2d 96 (D.Conn.2005) (continuing failure to stop calling as harassment factor)
  • Kuhn v. Account Control Tech., 865 F.Supp.2d 1443 (D.Nev.1994) (multiple rapid calls can support harassment finding)
  • Arteaga v. Asset Acceptance, LLC, 733 F.Supp.2d 1218 (E.D.Cal.2010) (context and pattern of calls influence harassment determinations)
  • Tucker v. The CBE Group, Inc., 710 F.Supp.2d 1301 (M.D.Fla.2010) (frequency of calls to non-debtor as FDCPA factor)
  • Johnson v. Riddle, 443 F.3d 723 (10th Cir.2006) (bona fide error defense requires negating specific intent)
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