Higgs v. Diversified Consultants, Inc., 4:13-cv-00278

Plaintiff Richard Higgs had an AT&T Mobility account that went into default and was referred to Diversified Consultants, a debt collector.
Diversified spoke with Higgs on January 21, 2013 (recorded) and February 7, 2013; between those dates Diversified made 36 calls to Higgs (avg. 2.25/day; no more than four/day) during protected hours.
On January 21 Higgs told the caller he did not have money and “can’t do anything”; the agent marked the account CNP (cannot pay) and told him collection activity would continue.
On February 7 Higgs called in and asked Diversified to stop calling; Diversified ceased calls thereafter.
Higgs sued under the FDCPA, 15 U.S.C. §§ 1692d and 1692d(5), alleging the calls between Jan. 21 and Feb. 7 were made with intent to harass, oppress, or abuse.
Diversified moved for summary judgment arguing (1) calls sought payment information, (2) Higgs never expressly asked calls to stop during the period, (3) call volume/pattern was not excessive, and (4) recorded calls contained no abusive content.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether calls between Jan. 21–Feb. 7 violated 15 U.S.C. § 1692d (harassment)	Calls after Higgs said he couldn’t pay were intended to harass him	Calls were legitimate attempts to determine when Higgs could pay; no abusive content	Court granted summary judgment for defendant — no violation of §1692d
Whether call volume/pattern violated § 1692d(5)	36 calls in 16 days amounted to harassment	Volume (avg 2.25/day; ≤4/day; during protected hours) was reasonable	Court found volume/pattern insufficient to show harassment
Whether failure to expressly request calls to stop defeats claim	Higgs’s statement he couldn’t pay sufficed as implicit request to stop	Higgs never explicitly asked calls to cease during period; collector told him calls would continue	Court held Higgs did not explicitly request cessation; implicit statement insufficient
Whether a reasonable jury could find intent to harass	Argues intent can be inferred from persistence	Argues no evidence of intent beyond ordinary collection efforts	Court: no genuine issue of material fact on intent; summary judgment for defendant

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment — genuine issue standard)
Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051 (8th Cir. 2002) (unsophisticated consumer standard under FDCPA)
Pace v. Portfolio Recovery, 872 F. Supp. 2d 861 (W.D. Mo. 2012) (persistence alone not automatically harassment under §1692d)
Fausto v. Credigy Servs. Corp., 598 F. Supp. 2d 1049 (N.D. Cal. 2009) (example of facts supporting harassment finding)
Durthaler v. Accounts Receivable Mgmt., Inc., 854 F. Supp. 2d 485 (S.D. Ohio 2012) (collecting cases on call volume and harassment)