A consumer brought a lawsuit against Wells Fargo Bank, N.A., alleging the bank harassed him by making repeated and continuous telephone calls in an attempt to collect a debt. The consumer alleged Wells Fargo Bank made 10-12 calls per day when his monthly payment was late. Wells Fargo will not leave a voice mail, but instead will call up to ten to twelve times per day. Mr. Larobina sometimes answers the phone, only to find that no one is on the line, leading him to believe that the calls are computer generated. Wells Fargo brought a Motion to Dismiss the lawsuit. The federal court refused to dismiss the lawsuit. Larobina v. Wells Fargo Bank, N.A., 2012 U.S. Dist. LEXIS 41992, 32-33 (D. Conn. 2012).
The federal court noted that Connecticut's Collection Practices Act ("CCPA") prohibits a creditor from "us[ing] any abusive, harassing, fraudulent, deceptive, or misleading representation, device or practice to collect or attempt to collect," and that
"Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously if the natural consequence of such action to a reasonable person is annoyance, abuse or harassment." The court also stated, "placing telephone calls without meaningful disclosure of the caller's identity" may constitute violations of the law.
In attempting to have the consumer's case dismissed, Wells Fargo noted hat the case law regarding the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., provided provided useful guidance, and argued that that courts have regularly found that worse practices did not constitute harassment as a matter of law.
However, the federal court was not convinced by Wells Fargo's examples, since all of them addressed situations where there were significantly fewer calls per day than the ten to twelve calls Mr. Larobina allegedly received- which was the violation he complained about.
While the court rejected the numerous cases cited by Wells Fargo Bank, it could have also cited numerous cases where courts refused to dismiss similar claims against debt collectors. See
Hosseinzadeh v. M.R.S. Assoc., Inc., 387 F. Supp. 2d 1104 (C.D. Cal. 2005);
Pratt v. CMRE Fin. Servs., 2011 U.S. Dist. LEXIS 33736 (E.D. Mo. Mar. 30, 2011)("Intent to annoy, abuse, or harass may be inferred from the frequency of phone calls, the substance of the phone calls, or the place to which phone calls are made.").
Kerwin v. Remittance Assistance Corp., 559 F. Supp. 2d 1117, 1124 (D. Nev. 2008). Indeed, one recent court stated: "As Plaintiff points out, the majority of courts throughout the nation recognize that whether the nature and frequency of debt collection calls constitutes harassment is also a fact issue for the jury."
Holland v. Bureau of Collection Recovery, 801 F. Supp. 2d 1340, 1343 (M.D. Fla. 2011)(citing other cases, including the Northern District of California,
Joseph v. J.J. Mac Intyre Companies, LLC, 238 F.Supp.2d 1158, 1168 (N.D. Cal. 2002), and the Eleventh Circuit Court of Appeals in
Meadows v. Franklin, 414 Fed. Appx. 230 (11th Cir. 2011).