January 18, 2021

Volume XI, Number 18

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January 18, 2021

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Bank Stuck in Debt Collection Robocall Suit: Allegations Bank Called Consumer up to 8 times Per Day Sufficient to Constitute Invasion of Privacy

In TCPAWorld there’s a fine line between that which constitutes ordinary collector hen pecking—which is perfectly legal and part of the whole “you owe me money” experience—and outright illegal harassment. Most courts refuse to quantify the number of calls needed to cross the threshold and look, instead, to things like a subjective awareness by a collector that he/she/it is knowingly spiking someone’s blood pressure. I mean, more than usual.

In Duarte v. Truist Bank, DOCKET NO. 3:20-CV-00270-FDW-DSC, 2020 U.S. Dist. LEXIS 207520 (W.D.N.C.  Nov. 5, 2020), however the Court looked at something objective—a plain call count. Faced with a motion to dismiss a complaint that alleged 235 attempted calls to the Plaintiff at a clip of up to 8 calls a day the Court refused to take the issue from the jury. Noting that the Defendant also—allegedly—called and texted the Plaintiff’s known associates, the Court held the allegations sufficient to state a claim for invasion of privacy: “Accepting Plaintiff’s allegations as true, the Court finds a  reasonable person could be highly offended by the frequency and manner Defendant telephoned Plaintiff and her friends and family.”

So there you go.

Notably, of course, cases like Duarte will become more common (and more dangerous) since the CFPB has recently dictated that calls exceeding 7 attempts in 7 days—or made within a 7 day window of having spoken with a debtor—are presumptively harassing in nature. While these rules (technically) do not apply to creditors collecting on their own debts—which seems to be the case in Duarte— you can bet your bottom dollar that Courts will look to the CFPB’s rules as something of a benchmark in assessing common law privacy tort claims brought against callers of all varieties.

One other note about Duarte, the Defendant moved to dismiss the TCPA claim on ATDS grounds but the Court refused to bite. Noting that the complaint also alleged prerecorded calls the court refused to wade into the fray over the TCPA’s baffling ATDS definition.

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© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 314
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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