Rush v. Portfolio Recovery Associates LLC
2013 U.S. Dist. LEXIS 149288
D.N.J.2013Background
- Plaintiffs allege FDCPA violations and state-law invasion of privacy stemming from Portfolio’s calls to their New Jersey home about a debt.
- Plaintiffs claim calls occurred through 2012 and continued after Plaintiffs retained counsel and a January 26, 2012 cease-and-desist letter was sent.
- Portfolio logs show calls mainly in December 2011–January 2012; Plaintiffs contend calls continued through April 2012 and were unanswered.
- Plaintiffs never spoke with Portfolio; caller ID displayed Portfolio’s number/name and Plaintiffs’ counsel sent cease letters; Portfolio acknowledged receipt and vowed no further calls.
- Portfolio moved for summary judgment on all counts; the court addressed whether calls constituted communications and analyzed the bona fide error defense, among other issues.
- The court ultimately granted summary judgment for Portfolio on several FDCPA provisions and on state privacy claim, while denying it for others, and later denied reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are unanswered calls communications under FDCPA §1692a(2)? | Rush asserts caller ID information makes calls communications about a debt. | Unanswered calls convey no debt information; calls do not constitute communications. | Unanswered calls after counsel were communications; pre-counsel calls were not. |
| Did post-cease and desist calls violate §1692c(a)(2) and §1692c(c)? | Calls continued after receipt of cease letter; log credibility disputed. | If any violation occurred, defense under §1692k(c) (bona fide error) applies; procedures were reasonable. | Some post-cease calls raised issues of fact; bona fide error defense applied to §1692c claims. |
| Does the record support §1692d and §1692d(5) harassment/annoying claims? | Frequency/timing of calls constituted harassment and repeated annoyance. | Calls were not outrageous; typical debt-collection contacts; no demonstrable intent to harass. | Issues of fact remain; summary judgment denied for §1692d and §1692d(5). |
| Does §1692f (unfair practices) apply given the alleged conduct? | Unfair collection methods were used in attempting to collect the debt. | No conduct beyond other FDCPA provisions; §1692f claim lacks independent basis. | Plaintiffs’ §1692f claim barred; summary judgment granted for Defendant on §1692f. |
| Does the invasion of privacy claim survive under intrusion on seclusion? | Repeated calls and phone-ring intrusion invade seclusion and privacy. | Calls, though bothersome, do not rise to highly offensive intrusion. | intrusion on seclusion claim granted summary judgment for Portfolio. |
Key Cases Cited
- Cerrato v. Solomon & Solomon, 909 F. Supp. 2d 139 (D. Conn. 2012) (unanswered calls with caller-ID can be communications)
- Edwards v. Niagara Credit Solutions, Inc., 586 F. Supp. 2d 1346 (N.D. Ga. 2008) (majority view on communications may extend beyond explicit debt reference)
- Diaz v. D.L. Recovery Corp., 486 F. Supp. 2d 474 (E.D. Pa. 2007) (persistent calls can be non-actionable; context matters)
- Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303 (M.D. Fla. 2010) (intrusions must be highly offensive to rise to invasion claim)
- Desmond v. Phillips & Cohen Associates, Ltd., 724 F. Supp. 2d 562 (W.D. Pa. 2010) (intrusion on seclusion requires outrageous conduct, not mere annoyance)