FDCPA Conference Seattle Washington March 3-4, 2011
Tort, TCPA, and State Statutory Claims
Luke Wallace and David Humphreys
Humphreys Wallace and Humphreys, P.C.
9202 S. Toledo Ave
Tulsa, OK 74137
(918) 747-5300
I.
TCPA, 47 U.S.C. § 227
A.
Debt Collection Calls to Home Phone of Non-debtor
The TCPA allows the FCC to exempt, by rule or order, calls that do not affect the
privacy rights and do not include an unsolicited advertisement. 47 U.S.C. § 227(b)(2)(B)
The FCC has expressly exempted in its rules and orders calls where there is an existing
business relationship. “In this report, the FCC then addressed debt collection calls and
declared that “all debt collection circumstances involve a prior or existing business
relationship.” Watson v. NCO Group, Inc. 462 F.Supp.2d 641, 644 (E.D.Pa.,2006).
But at least one court has held that this does not apply to a non-debtor because there is
no pre-existing business relationship.
“The Court notes that the FCC has not directly addressed the issue of erroneous debt
collection calls.FN2 In promulgating these regulations, the FCC proceeded from the
premise that ‘all debt collection calls involve a prior or existing business relationship.’ 7
FCC Rcd. 8752. Since an erroneously called non-debtor has no such existing business
relationship, it follows that the purview of the FCC's exemption does not extend to the
type of calls made in this case.” Id.
The Watson Court also held that collection calls to a non-debtor does not fit the
exemption for not containing an unsolicited advertisement because it fails on the first
element—calls to a non-debtor affect privacy rights. Id. at 644-645.
Watson’s holding that the exemption does not apply to non-debtors has been
disagreed with by Meadows v. Franklin Collection Service, Inc., 2010 WL 2605048
(N.D. Ala. 2010) affirmed in relevant part by 2011 WL 479997 (11th Cir. 2011). See
also, Pugilese v. Professional Recovery Service, Inc., 2010 WL 2632562 (E.D. Mich
2010); Bates v. I.C. Systems, Inc., 2009 WL 3459740 (W.D. N.Y. 2009).
While the exemption for calls to the home phone of a debtor is clear, whether this
exemption applies to non-debtors is still a matter for debate.
B.
Debt Collection Calls to Cell Phone
No one, including debt collectors, can use prerecorded messages or automated
dialing programs to contact a consumer on a cell phone.
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“It shall be unlawful for any person within the United States, or any person outside the
United States if the recipient is within the United States-(A) to make any call (other than a call made for emergency purposes or made
with the prior express consent of the called party) using any automatic telephone
dialing system or an artificial or prerecorded voice-(iii) to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio
common carrier service, or any service for which the called party is
charged for the call;”
47 U.S.C.A. § 227(b)(1)(A)(iii)
This section does not fall into the FCC ability to create exemptions by rule or
order unless the cell phone user is not charged for the calls. 47 U.S.C.A. § 227(b)(2)(C).
II.
State Statutes
Most states have some form of consumer protection act that may apply to debt
collection by either a creditor or a debt collector
A.
Consumer Protection
By way of example, Oklahoma’s Consumer Protection Act, 12 O.S. § 751 et seq.
contains language that applies to debt collection. Specifically, the Oklahoma statute
makes it unlawful to “25. Knowingly causes a charge to be made by any billing method
to a consumer for services which the person knows was not authorized in advance by the
consumer; 26. Knowingly causes a charge to be made by any billing method to a
consumer for a product or products which the person knows was not authorized in
advance by the consumer.” 12 O.S. § 753. Depending on the facts of the case debt
collection activity may also fall under the broader language of an “unfair or deceptive
trade practice.”
As to any exceptions that may apply to the state statute, “Because the OCPA is
remedial in nature it is to be liberally construed to effectuate its underlying purpose.”
Patterson v. Beall, 2000 OK 92, ¶ 28, 19 P.3d 839. This view of consumer protection
and unfair and deceptive trade practices acts is the norm with exceptions being
interpreted narrowly and the protections of the statute being liberally construed.
A careful examination of your states Consumer Protection Act and/or Unfair and
Deceptive Trade Practices Act is necessary to determine if a claim is viable under the
facts of your case.
B.
State Fair Debt Collection Practices Acts
Multiple states have passed their own statutory protections for consumers
regarding debt collection. see e.g. Rosenthal Act in California Cal Civ. Code § 1788 et
seq; Florida Consumer Collection Practices Act Fl. Stat. Ann. § 559.55 et seq.
Frequently these statutes provide greater protections for the residents of the respective
state and are not just a reiteration of the Federal Statute i.e. the Rosenthal Act also applies
to creditors not just debt collectors.
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The FDCPA does not preempt these claims. Som v. Daniels Law Offices, 573 F.
Supp. 2d. 349 (D. Mass. 2008); Pirouzan v. SLM Corp, 396 F.Supp 2d 1124 (S.D. Cal
2005).
III.
Common Law
A.
Invasion of Privacy—Intrusion upon seclusion
Especially in cases where your client is not the debtor but also if the underlying
activity of the case is especially egregious in contacting the actual debtor a claim may be
made for invasion of privacy. In Oklahoma, this claim falls most clearly under Intrusion
upon seclusion.
Oklahoma and Georgia both cited favorably to Section 652B of the Restatement
(Second) of Torts reads:
Ҥ 652B. INTRUSION UPON SECLUSION. One who intentionally intrudes, physically
or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns,
is subject to liability to the other for invasion of his privacy, if the intrusion would be
highly offensive to a reasonable person.” Gilmore v. Enogex, Inc. 878 P.2d 360,
366 (Okl.,1994); Anderson v. Mergenhagen, 642 S.E.2d 105, 110 (Ga. App. 2007).
Whether an act is “highly offensive to a reasonable person” will vary depending
on the facts of the case and the standards set by the state under whose laws suit is being
brought.
Plaintiffs had a reasonable expectation of privacy at home. Vescovo v. New Way
Enterprises, 60 Cal. App. 3d 582, 587 (1976).1
At least four (4) courts within the Ninth Circuit have recognized the tort of
intrusion upon seclusion in the debt collection context. Indeed, the Northern District of
California has stated, "intrusion upon seclusion is actionable under California law.2
Excessive telephone calls to a consumer’s residence lead to stress and privacy
invasion, whether or not the consumer answers the calls. Joseph v. J.J. Macintyre, 238 F.
Supp. 2d 1158, 1169 (N.D. Cal. 2002), and Joseph v. J.J. Macintyre, 281 F. Supp. 2d
1156, 1165 (N.D. Cal. 2003), Sanchez v. Client Services, Inc., 520 F. Supp. 2d 1149
(N.D. Cal. 2007).
For cases recognizing intrusion upon seclusion for telephone calls to someone’s home, see Joseph v. J. J.
Mac Intyre Companies, 281 F. Supp. 2d 1156, 1169 (N.D. Cal. 2002), Sanchez v. Client Services, Inc., 520
F. Supp. 2d 1149 (N.D. Cal. 2007), Diaz v. D.L. Recovery Corp., 2007 U.S. Dist. LEXIS 31241 (E.D. PA.
2007), Lowe v. Surpas, 253 F. Supp. 2d 1209 (D. Kan. 2003), Burkhalter v. Lindquist and Trudeau, Inc.,
2005 U.S. Dist. LEXIS 23582, *6 (E.D. MO 2005), and Jones v. U.S. Child Support Recovery, 961 F.
Supp. 1518, 1521 (D. Utah 1997).
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Joseph v. J. J. Mac Intyre Companies, 281 F. Supp. 2d 1156, 1169 (N.D. Cal. 2002), citing, Shulman v.
Group W. Productions Inc. 18 Ca1.4th 200, 231, 955 13.2d 469, 74 Cal. Rptr. 2d 843. (1998), which
quoted the Restatement (2d) of Torts § 652B. Also see, Kuhn v. Account Control Technology, 865 F. Supp.
1443, 1449 (D. Nev. 1994), Sanchez v. Client Services, Inc., 520 F. Supp. 2d 1149 (N.D. Cal. 2007),
Panahiasl v. Gurney, 2007 U.S. Dist. LEXIS 17269, *7 (N.D. Cal 2007). Also see, Lowe v. Surpas
Resource Corporation, et al., 253 F. Supp. 2d 1209 (D. Kan. 2003).
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“Improper conduct in knowingly and intentionally pursuing a person to force
payment of a debt, whether or not he owes it, may, under certain circumstances, give rise
to a right to damages for an invasion of privacy." Panahiasl v. Gurney, 2007 U.S. Dist.
LEXIS 17269, *7 (N.D. Cal 2007).
B.
Intentional Infliction of Emotional Distress
The elements of this tort may vary slightly depending on the jurisdiction but
predominantly one must prove the following:
“To establish a prima facie case of intentional infliction of emotional
distress, a plaintiff must demonstrate: (1) that the tortfeasor acted
intentionally or recklessly; (2) that the tortfeasor's conduct was extreme
and outrageous; (3) that plaintiff actually experienced emotional distress;
and (4) that the emotional distress was severe.” Ishmael v. Andrew, 2006
OK CIV APP 82, ¶ 19, 137 P.3d 1271, 1277; Breeden v. League Services
Corp., 1978 OK 27, ¶ 7, 575 P.2d 1374, 1376. Whether an actor's conduct
is so extreme and outrageous as to permit recovery constitutes a question
of law. Breeden, 1978 OK 27, ¶ 12, 575 P.2d at 1377-1378.
Chenoweth v. City of Miami, 240 P.3d 1080, 1083 (Okla.Civ.App. Div. 3,2010).
While bringing a claim under this tort has its advantages, the standard a plaintiff
must meet is set extremely high and the claim has been considered an almost carte
blanche waiver of your client’s physician-patient privilege.
C.
Negligent Infliction of Emotional Distress
However, “unlike a cause of action for intentional infliction of emotional distress,
negligent infliction of emotional distress is not an independent tort.” Kraszewski v.
Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, ¶ 1, 916 P.2d 241, 243, fn. 1.
(Citation omitted.) That is to say, “[u]nder Oklahoma's jurisprudence the negligent
causing of emotional distress is not an independent tort, but is in effect the tort of
negligence.” Lockhart v. Loosen, 1997 OK 103, ¶ 16, 943 P.2d 1074, 1081.
Consequently, “before damages for mental suffering may be collected, the plaintiff
must establish: a duty on the part of the defendant to protect the plaintiff from injury; a
failure of the defendant to perform the duty; and an injury to the plaintiff resulting from
the failure.” Kraszewski, 1996 OK 141, ¶ 1, 916 P.2d at 243, fn. 1. (Citation omitted.)
Chenoweth v. City of Miami , 240 P.3d 1080, 1083 (Okla.Civ.App. Div. 3,2010).
D.
Negligence
Typically the elements of negligence include 1) a duty on the part of the
defendant to protect the plaintiff from injury; 2) a failure of the defendant to perform the
duty; and 3) an injury to the plaintiff resulting from the failure. Chenoweth v. City of
Miami , 240 P.3d 1080, 1083 (Okla.Civ.App. Div. 3,2010). While many states do not
recognize an individual tort for Negligent infliction of emotional distress, all states
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recognize negligence in general. Whether a state recognizes emotional distress damages
when there are no other consequential damages available or if an expert establishing
physical injury in order to collect emotional distress damages must be examined on a
state by state basis.
IV.
“Garden Variety” emotional distress may be an element of recovery/damages
without a claim for Infliction of emotional distress whether intentional or negligent.
“First, the Court notes that the exception under [Okla. Stat. tit 12] § 2503(D) does
not apply. Plaintiff’s mental pain and suffering are items of recovery, not elements of her
claim.” Shreck v. North American Van Lines, Inc., 2006 WL 1720545 (N.D. Okla. June
19, 2006)(citing Ellis v. Gurich, 2003 OK 47, 73 P.3d 860). In these Oklahoma cases
there was not a claim for intentional or negligent infliction of emotional distress. Clearly,
bringing a claim for IIED or NIED Whether this applies in your state is something that
clearly needs to be examined.
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