The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
This case began with an overdraft on a Bank of America checking
account in 1988 in the amount of, according to plaintiff, approximately
$120; according to plaintiff's statement of the case, approximately $180;
and, according to defendant, $181.24. Plaintiff testified that he had
some financial difficulties at the time, the result of a serious head
injury, and he thought Bank of America was going to reverse the charge,
but it did not do so.
The record reflects that the debt surfaced again some fourteen years
later, when Arrow Financial Services (Arrow) sent plaintiff a letter
advising him that it had purchased the account and that the balance due
was $601.41. Plaintiff's financial situation was no better he was
considering bankruptcy and he did not respond. Further, he was
aware that the statute of limitations had long since run and the debt was
far too old to be included in a credit report. The telephone calls began
in the late summer (the parties agree about that). Plaintiff testified to
many calls beginning in early August 2002, He hung up on calls where the
caller failed to identify himself. He finally took a call and the person
said he was from defendant, gave a name, and said he was calling about
the Bank of America account. He testified that he talked to someone at
Arrow again in late August and a third time in September, each time telling the caller the debt was too old and to stop calling him.
During that period, and for a time thereafter, he also received calls
where there was a delay before he was connected and which he terminated
by hanging up before anyone said anything. He assumed those calls were
Arrow operates a computer-driven telephone collection call system. Its
records show a total of five calls. The first was on August 28, 2002;
there was a connection and the call lasted four minutes. According to
those records, plaintiff said he was not paying and an attorney would
call the following day. On September 6, 002, Arrow called but there was
no answer. It did get through on September 10, 2002, for a one-minute
call, during which plaintiff said Arrow could not call anymore and if it
did, he would sue. A call on September 23, 2002, got a busy signal, and
Arrow got no answer to a September 27, 2002, call. There could have been
other calls initiated, but never more than one a day and usually more
spaced out than that. When the computer generated a call, it would
transfer the call to an Arrow representative when the caller picked up
the telephone, causing a brief delay. If the person called hung up before
the transfer, the call would not be registered in the Arrow records.
We credit the company records. Plaintiff, by his own admission, was
then unemployed and had other debts in collection. He undoubtedly was
under considerable stress and he also undoubtedly was distressed by being
dunned for payment of a small amount going back fourteen years before,
which he quite rightly viewed as uncollectible. While he recalls three
substantive calls, there were two, although in all likelihood there were
a few attempts aborted by his hanging up before the call was transferred.
The case was tried in a couple of hours, with the principal issue being
whether or not defend ant violated 15 U.S.C. § 1692 d(S) by harassing
plaintiff by " [c]ausing 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."
Two completed telephone calls, spaced a couple of weeks apart, are
hardly intentional harassment. One can conjecture circumstances in which
aborted calls could rise to the level of intentional harassment. For
example, a creditor could repeatedly call a consumer at odd hours of the
night and hang up when the consumer answers. But those were not the
circumstances here. An automated system that could conceivably have
placed one call a day (although that is unlikely) which is not recorded
because the person called hung up before any connection was made, cannot
be said to have been created to intentionally harass the person called.
Plaintiff also contends that Arrow misrepresented the debt, with $180
having ballooned to over $600, without explanation. Defendant's records
indicate that the excess is interest, and interest was periodically
accruing according to those records. If interest was compounding over
fourteen years, the amount appears reasonable if interest was
authorized. But we have no evidence that it was not authorized, and it
was plaintiff s burden to prove the violation. We do not recall any
testimony that an Arrow representative represented that the debt would be
reported to a credit reporting agency. Rather, it was plaintiff who
testified that he told an Arrow representative that the debt was too old
to report. Finally, while we do not rest upon it, the evidence of damages
was very weak. This collection effort was, briefly, just one more
stressor in what was, unfortunately, plaintiff's very stressful life.
We enter judgment for defendant.
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