Debt collector call volume doesn’t constitute harassment, court rules

The state Supreme Court, in overturning a lower court’s ruling, says that volume of calls is not enough to determine whether a debt collector has violated the West Virginia Consumer Credit Protection Act.

Justice Beth Walker, who wrote the decision, said there was no evidence that the company, Valentine & Kebartas, Inc., intended to “annoy, abuse, oppress, or threaten.”

Justice Margaret Workman, in a dissenting opinion, wrote that the decision is a “complete departure from the overwhelming consensus of the courts,” and that the decision “guts” the West Virginia Consumer Credit Protection Act.

“Causing the telephone to ring or engaging any person in telephone conversation repeatedly or continuously, or at unusual times or at times known to be inconvenient, with the intent to annoy, abuse, oppress or threaten any person at the called number” is illegal under West Virginia state law. The Federal Debt Collection Practices Act also prohibits “Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.”

V&K had appealed the Jan. 15, 2016 verdict of the Raleigh County Circuit Court. V&K is a third-party debt collector that had purchased Gary Lenahan’s delinquent account from ADT, a home security provider. ADT had told V&K that Lenahan owed $1,349.53, according to the order, filed Monday afternoon. Lenahan told ADT he denied owing the money, but had never notified V&K that he denied owing the debt.

V&K first sent a letter, on March 9, 2012, to Lenahan notifying him of intent to collect the debt. The company then used an auto dialer to call him 22 times between March 10 and March 25, 2012, 17 times between March 26 and 28, 2012, and 211 times between March 29 and Nov. 17, 2012.

Lenahan testified that after experiencing financial difficulties in 2011 and 2012, he decided to no longer answer calls he believed to be from debt collectors, according to the order.

Lenahan filed a lawsuit against V&K in March 2013. Raleigh Circuit Judge Robert Burnside, Jr. ruled that when V&K “ramped up its collection campaign,” beginning March 26, it violated state law and awarded Lenahan $75,000.

“The Court cannot fathom any possible legitimate purpose that could be served by increasing the volume and frequency of collection calls to a consumer who is known to exercise dominion over the telephone number being called and who has already been informed that [V&K] was collecting a debt by mail,” Burnside found. “Thus the only logical conclusion is that [V&K] increased its volume and frequency of collection calls to Mr. Lenahan in an attempt to harass or oppress him into answering [V&K]’s telephone calls.”

Walker wrote that “the circuit court made an inference of intent to ‘harass or oppress’ based upon its own inability to ‘fathom any legitimate purpose’ for V&K’s auto-dialer placing more calls over a three-day period in the third week of its eight-month collection effort than it placed in the first two weeks.

“The circuit court surmised that after a certain amount of unanswered calls, a reasonable debt collector should know that the consumer does not want to be contacted,” she continued. “However, the circuit court’s inference was based entirely on the volume of calls and no other evidence. Moreover, the circuit court overlooked entirely the unrefuted evidence of V&K’s intent to collect the debt.”

Walker cited Bourne v. Mapother & Mapother, P.S.C, a 2014 West Virginia debt collection case in which the court said that the plaintiff had failed to establish intent.

Walker also wrote that federal case law “supports the conclusion that call volume alone absent other intent to annoy, abuse or harass is insufficient to sustain a claim.”

Workman wrote that the statement was “patently incorrect, as evidenced by a legion of federal decisions, and remarkably, even the very case which the majority cites in support of this statement.

She noted that in the Bourne case, the decision notes that “The requisite intent to annoy, abuse, oppress or threaten can be established by the volume of telephone calls or the nature of the telephone conversations.”

Workman also wrote that “the majority’s confounding conclusion that petitioner may evade a violation of the statute by simply claiming that it was merely trying to collect the debt or reach the debtor is fairly absurd and further underscores the majority’s complete failure to comprehend the activity which the statute seeks to prohibit.”

“To be clear, the majority’s reversal of this matter is not only without analytical or precedential support, but effectively guts the import of the statute,” she continued. “Under the majority’s analysis, a debt collector could conceivably cause a debtor’s telephone to ring every five minutes into perpetuity and not run afoul of the statute.”

Justice Robin Davis joined Workman in her dissent.

The West Virginia Legislature amended state code in 2015 to more specifically address call volume. State law now prohibits “Calling any person more than thirty times per week or engaging any person in telephone conversation more than ten times per week, or at unusual times or at times known to be inconvenient, with intent to annoy, abuse, oppress or threaten any person at the called number.”

Justices did not consider the amendment, because it was not in effect during the trial in Raleigh County.

Reach Erin Beck at erin.beck@wvgazettemail.com, 304-348-5163, Facebook.com/erinbeckwv, or follow @erinbeckwv on Twitter.

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