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Lipscomb v. Aargon Agency, Inc.

United States District Court, D. Maryland, Southern Division

November 5, 2014

AARGON AGENCY, INC., et al., Defendants.


PAUL W. GRIMM, District Judge.

After receiving multiple calls on her cell phone from Defendant Aargon Agency, Inc. ("Aargon"), in which Aargon stated that it was attempting to collect a debt, Plaintiff Wendy Lipscomb asked Aargon to stop calling her and initiated this lawsuit, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA"), and invasion of privacy. I must determine whether to grant Defendant's pending Motion for Summary Judgment.[1] Because the material facts regarding Defendant's alleged violation of § 1692c(b) of the FDCPA are not disputed and show that Plaintiff cannot establish a prima facie case, Defendant is entitled to judgment as a matter of law on that claim. However, a genuine dispute exists as to the volume and pattern of Defendant's calls and when Plaintiff asked Defendant to stop calling, facts that are material to the remaining claims. Therefore I will deny Defendant's motion as to Plaintiff's claims for invasion of privacy and violations of the TCPA and § 1692d of the FDCPA.


Aargon contacted Plaintiff repeatedly "on her cellular telephone using an automatic telephone dialing system (ATDS') and/or by using a prerecorded or artificial message."[3] Compl. ¶¶ 12-14, ECF No. 1; see Def.'s Mem. 4-5. Aargon was attempting to collect a debt on behalf of George Washington University Hospital (the "Hospital"), which had retained Aargon "in connection with the collection of two accounts owed by the Plaintiff." Boyd Aff. ¶ 8, ECF No. 24-2; see Compl. ¶¶ 11-12. According to Plaintiff, "it was clear that Defendant was calling for someone other than Ms. Lipscomb, " and she "told the Defendant on three separate occasions to stop calling her, " ultimately "advis[ing] Defendant that it had the wrong number and to stop calling and placing auto-dial calls to her cell phone." Pl.'s Interrog. Resp. 13, Def.'s Mem. Ex. 2, ECF No. 24-4. Yet, in her Opposition, Plaintiff does not dispute that Defendant was trying to reach her or that Defendant stated in its prerecorded messages that it was calling "for Wendy Lipscomb" in "an attempt to collect the debt." See Pl.'s Opp'n 2-3; Boyd Aff. ¶ 13. Feeling harassed, Plaintiff filed suit against Aargon and ten John Doe defendants, claiming that they violated the FDCPA and the TCPA, and that they are liable for the common law tort of invasion of privacy. Compl. ¶ 1.


Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials, " that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Celotex v. Catrett, 477 U.S. 317 (1986). The existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id. But, even if the material facts are not disputed, "summary judgment is only appropriate when the evidence is so one-sided that one party must prevail as a matter of law.'" Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492, 504 (D. Md. 2004) (quoting Anderson, 477 U.S. at 252).


To protect consumers from abusive debt collection practices, the FDCPA prohibits certain communications by debt collectors in relation to collecting debts. See, e.g., 15 U.S.C. §§ 1692c(b), 1692d; United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996); Stewart v. Bierman, 859 F.Supp.2d 754, 759 (D. Md. 2012). To succeed on an FDCPA claim, a plaintiff must establish that "(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt [ ] collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.'" Stewart, 859 F.Supp.2d at 759-60 (citation omitted). Here, it is undisputed that Ms. Lipscomb was "the object of collection activity arising from consumer debt'" and that Aargon is a debt collector. See id. (citation omitted). Thus, the issue is whether Aargon engaged in a debt collection tactic that the FDCPA prohibits. See id.

Plaintiff claims that Defendants "violated 15 U.S.C. § 1692c(b) by communicating with the Plaintiff without authorization or justification." Compl. ¶ 28. This section of the FDCPA prohibits a debt collector from "communicat[ing], in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector, " unless the consumer gives prior consent directly to the debt collector. 15 U.S.C. § 1692c(b) (emphasis added). Plaintiff's claim fails as a matter of law because § 1692c(b) pertains to communications with third parties, see id., and Plaintiff is not a third party, but rather the consumer Defendant sought to contact regarding the debt, see Boyd Aff. ¶ 13; Pl.'s Opp'n 2-3. Therefore, summary judgment in Defendant's favor is appropriate on this claim. See Fed.R.Civ.P. 56(a).

Plaintiff also alleges that Defendants, by calling Plaintiff's cell phone to collect the debt, harassed Plaintiff in violation of 15 U.S.C. § 1692d and Maryland common law prohibiting intrusion upon seclusion. Compl. ¶¶ 29 & 40. Section 1692d prohibits, with exceptions not relevant here, a debt collector from "engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, " 15 U.S.C. § 1692d, such as 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, " id. § 1692d(5). Intrusion upon seclusion is one form of the common law tort of invasion of privacy in Maryland, [4] and it is "defined as: [t]he intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person.'" Mitchell v. Baltimore Sun Co., 883 A.2d 1008, 1022 (Md. Ct. Spec. App. 2005) (quoting Furman v. Sheppard, 744 A.2d 583, 585 (Md. Ct. Spec. App. 2000) (citation and quotation marks omitted)).

The question at the core of these two claims is whether Defendant's calls to Plaintiff were reasonable, based on their frequency and timing. "Whether there is actionable harassment or annoyance [for purposes of § 1692d] turns not only on the volume of calls made, but also on the pattern of calls." Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492, 505 (D. Md. 2004). For example, calls placed after a debtor has asked the collector to stop calling may evidence an intent to harass. See Finney v. MIG Capital Mgmt., Inc., No. 13-2778, 2014 WL 1276159, at *12 (S.D. W.Va. Mar. 27, 2014) ("[T]he fact that... calls were placed after Finney informed MIG that the debt was disputed and after Finney requested that all further communications be directed to [her attorney] suggested [an intent to harass], " as "courts have concluded that a debt collector's failure to respect a consumer's request to cease communications concerning a debt may be indicative of intent to harass or annoy."); Little v. Portfolio Recovery Assocs., LLC, No. 12-2205-JTM, 2014 WL 1400660, at *3 (D. Kan. Apr. 10, 2014) ("[C]ontinuing to call after the debtor asks for such calls to stop may evidence an intent to harass...."); Conover v. BYL Coll. Servs., LLC, No. 11-CV-6244P, 2012 WL 4363740, at *6 (W.D.N.Y. Sept. 21, 2012) ("[H]arassment may be found where a debt collector... continues to call after the debtor has requested that the debt collector stop calling."); Gilroy v. Ameriquest Mortg. Co., 632 F.Supp.2d 132, 136 (D.N.H. 2009) ("Intent [to harass] may... be inferred by evidence that the debt collector continued to call the debtor after the debtor had asked not to be called...."). Further, "[t]he reasonableness of [a] volume of calls and their pattern is a question of fact for the jury." Akalwadi, 336 F.Supp.2d at 506. Likewise, for an invasion of privacy claim,

the question of how far a creditor may go to collect his debt must be decided on the individual facts of each case, but usually on the ground of reasonableness. It is generally recognized that a creditor has a right to take reasonable measures to pursue his debtor and persuade payment, although the steps taken may result in some invasion of the debtor's privacy.

Household Finance Corp. v. Bridge, 250 A.2d 878, 884 (Md. 1969). Additionally, when a plaintiff is successful on an invasion of privacy claim against a creditor, "there is usually present a pattern of harassment on the part of the creditor, or the communication, if not of such frequency as to constitute harassment, has been of such a nature as to possess a vicious quality." Id. at 884.

In this regard, two material facts are disputed: how frequently Defendant called Plaintiff and whether Defendant called Plaintiff after she asked Defendant to stop. Defendant contends, and its records show, that it called Plaintiff's cell phone eight times over forty-five days, never on the same day, never at night, and never after Plaintiff asked it to stop. Boyd Aff. Ex. B. According to Plaintiff, Defendant called her cell phone "approximately 20 to 25" times, and she "told the Defendant on three separate occasions"-on September 19, 2013 and twice before then-"to remove her cell number from its call list and to cease all calls." Pl.'s Interrog. Resp. 11 & 13. Her Responses to Defendant's Amended Interrogatories[5] are the only evidence she identifies in support of her position, but that is sufficient to create a genuine dispute of material fact.[6] See Fed.R.Civ.P. 56(c)(1)(A) (identifying "interrogatory answers" as "materials in the record" that can provide support for "[a] party asserting that a fact... is genuinely disputed"). Further, discovery is not yet complete, as the parties engaged in phased discovery and only have completed the first phase. Def.'s Mem. 2; Feb. 4, 2014 Order, ECF No. 19. Because there is a genuine dispute of material fact regarding the ...

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