Medical Collection

[tranquility]

every case I have read so far, even though it involved a phone, it was ultimately not the phone that was the issue but the place or time.

If ya got something handy concerning the cell phone falling under "place or time", please toss it at me.



In the notice of an inconvenient place; I agree the law does not require the notice to be in writing. I simply added that if it is not, just how does one prove it other than the CA admitting to the notice.

My previous edit is gone and I don't really want to go through the search again. But, it was an 11th circuit case and a ND California case. Again, it was in the dicta and not in the holding. But, it convinced me enough to back away from the previous claim. That the call is within certain times does not make it convenient. What if you worked at night? What if it was a day of a funeral? I just think that if you can send a letter defining any time as inconvenient, you might be able to send a letter defining all times. I have no idea as to if, to prove a violation, the plaintiff would have to prove the prohibited times actually WERE inconvenient.

 

[justalayman]

Here is but one, directly on point, that supports not only that calls made to a cellphone were not considered inconvenient in themselves but that a call to a cell phone, even if it was while at work, is not a violation unless the collector was made aware of specific times it would be considered inconvenient.


http://scholar.google.com/scholar_case?case=2733446508500852713&q=fdcpa+phone+inconvenient+&hl=en&as_sdt=2,23

 

[tranquility]

Here is but one, directly on point, that supports not only that calls made to a cellphone were not considered inconvenient in themselves but that a call to a cell phone, even if it was while at work, is not a violation unless the collector was made aware of specific times it would be considered inconvenient.


http://scholar.google.com/scholar_case?case=2733446508500852713&q=fdcpa+phone+inconvenient+&hl=en&as_sdt=2,23

See, that's the thing, Jeran is claiming he is specifically notifying that all telephone communication is inconvenient. From the holding on the issue:

No evidence whatsoever has been presented to suggest that Rash Curtis knew or should have known it was calling Plaintiff on his cell phone at inconvenient times or places. Therefore, summary adjudication as to Plaintiff's claim in that regard must be granted.

 

[justalayman]

See, that's the thing, Jeran is claiming he is specifically notifying that all telephone communication is inconvenient. From the holding on the issue:

but he is wrong and that case supports it. The statement you excerpted sounds deceivingly like it is in favor of the plaintiff but in fact, it was the approval of the defendants claim for summary judgment denying the plaintiffs claim. If you will read the conclusion, it becomes clear:

For the reasons set forth above, Defendant's Motion for Summary Adjudication (Docket No. 14) is GRANTED in part and DENIED in part.[3] The Motion is GRANTED with respect to Plaintiff's claims under the FDCPA at 15 U.S.C. §§ 1692b, 1692c(a)(1), 1692e(4) and 1692g, but DENIED as to §§ 1692c(b) and 1692e(5). Defendant's request for summary adjudication as to Plaintiff's claims under the Rosenthal Act is GRANTED as to California Civil Code § 1788.10(e) but DENIED as to § 1788.13(j). Defendant's request for summary adjudication as to Plaintiff's invasion of privacy claim is GRANTED.

it was stated, and I believe accepted by the defendant, the plaintiff had told the CA to cease phone calls:

Although Plaintiff claims that he made Defendant aware "on multiple occasions not to call him at certain times," the portion of his deposition cited to support that claim states only that he "told them to quit calling me." Pl.'s Dep., 21:14-15. Additionally, the fact that Plaintiff may have been at work when some calls were placed to his cell phone does not give rise to liability under § 1692c(a)(1) on grounds that Rash Curtis should have known that the calls were inconvenient

 

[tranquility]

I still agree the law is not clear on the matter. However, in deciding such matters:
Sanchez v. Client Services, Inc., 520 F. Supp. 2d 1149 (2007)

Plaintiffs cite to no evidence which demonstrates that defendants "should have known" or that it "should [have been] known" to them that the time and place for their communications was inconvenient to plaintiff Irma Sanchez. Jean Heraldsen stated that the general telephone line in the kitchen was available for telephone calls and messages for the workers. She further testified that plaintiff Irma Sanchez was not prohibited from receiving telephone calls there. In addition, plaintiff Irma Sanchez never communicated to defendants that it was inconvenient for them to reach her at work. Only Jorge Sanchez informed defendants to stop calling his wife at work. In the various telephone messages left on the answering machine or with co-workers, the parties dispute whether mention was made of plaintiff Irma Sanchez's credit card debt. Accordingly, plaintiffs' motion for partial summary judgment as to this claim is denied.

Thus indicating that if the parson communicated it was inconvenient, that would be evidence they should have know it was. (Although it still seems the plaintiff must prove not only that the defendant knew or should have known, but that it was actually inconvenient.)

In Wan v. Commercial Recovery Systems, Inc., 369 F. Supp. 2d 1158 (2005) the debt collector was accused of requiring more from the debtor than required by law in a notice on a collection communication. The court found no violation as it "echoed" the law.

Plaintiff also contends that the Communication Language of the Letter violates 1165*1165 sections 1692c(a) and 1692e because the FDCPA does not require that a consumer notify a debt collector in writing of their consent to communicate. As explained below, Plaintiff's claim is based on a fundamental misreading of the FDCPA and therefore is dismissed.

Section 1692c(a) prohibits a debt collector from communicating with a consumer "at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer generally" without the prior consent of the consumer or a court. 15 U.S.C. § 1692c(a). "In the absence of knowledge of circumstances to the contrary," a debt collector may assume that a convenient time for communicating with a consumer is between 8 a.m. and 9 p.m., in the consumer's local time. 15 U.S.C. § 1692c(a)(1). Plaintiff is correct in noting that the plain language of section 1692c(a) does not impose a writing requirement on a consumer. See also Roudebush v. Collecto, Inc., No. 1:03-cv-1126, 2004 WL 3316168, at *4-5, 2004 U.S. Dist. LEXIS 27711, at *13-15 (S.D.Ind. Nov. 12, 2004).

However, this in no way suggests that the statement "f you notify us in writing to stop contacting you by telephone at your residence or place of employment, no further contact will be made" violates section 1692e or 1692c(a)(1). First, the Communication Language of the Letter echoes subsection 1692c(c) of the FDCPA, which allows a consumer-debtor to cut off future communication from the debt collector by notifying them, in writing, that the "consumer refuses to pay" or "wishes the debt collector to cease further communication with the consumer." See 15 U.S.C. § 1692c(c). The Communication Language is truthful, largely repeating the statutory language of section 1692c(c), and therefore does not violate section 1692e. Although the FDCPA does not require a debt collector to inform a consumer of this right to cut-off communication, there is nothing in the FDCPA which prevents a collection agency from providing a consumer with this information. See White v. Goodman, 200 F.3d 1016, 1020 (7th Cir.2000); 15 U.S.C. §§ 1692-1692o.

In addition, The Communication Language in the Letter deals with the procedure for a consumer who wishes to cease communication, not the procedure for a debtor who wishes to consent to communications which would normally be perceived as inappropriate. Plaintiff relies on several cases for the proposition that a debt collector may not contact a consumer at their place of employment after a debtor orally informs the collector that he or she did not wish to be contacted at work. (See Opp. at 7 (citing Fox v. Citicorp Credit Servs., 15 F.3d 1507 (9th Cir.1994)); Austin v. Great Lakes Collection Bureau, 834 F.Supp. 557 (D.Conn.1993); Pittman v. J.J. Mac Intyre Co., 969 F.Supp. 609 (D.Nev.1997); Horkey v. J.V.D.B. & Assocs., Inc., 333 F.3d 769 (7th Cir.2003)). These cases, however, all find a violation of sections 1692c(a)(3) or 1692d[6] because the collection agency continued to contact a debtor at a place where the debtor had orally informed the agency was "inconvenient." See, e.g., Fox, 15 F.3d at 1516 (reversing summary judgment on 1962d claim where defendant continued to phone at work after plaintiff twice requested that she not be phoned at work); Horkey, 333 F.3d at 773 (finding violation of 1692c(a)(3) where defendant continued to contact plaintiff at work after she orally informed them that it was an inconvenient place several times). Plaintiff does not allege that Defendants contacted her at a place or time that she informed them was inconvenient. 1166*1166 More importantly, other than the Letter, Plaintiff does not allege that Defendants ever attempted to communicate with her. As such, these cases do not support a claim under section 1692c.

Accordingly, the Letter's Communication Language does not violate sections 1692c or 1692e.

If a cease and desist any communication is valid, demanding to cease telephone communication from home AND work would be valid too. Now, demanding such a thing will be treated by the collector as a cease and desist because they are not going to be sending a bunch of letters to a person who is playing games, but it seems the debtor can demand it by implication.

Finally, in an unpublished 11th circuit case, DANOW v. BORACK, Court of Appeals, 11th Circuit (2009):

At issue during the trial was Danow's claim that the Law Office violated the FDCPA by contacting him at an inconvenient location after he sent the Law Office a cease communications letter. 15 U.S.C. § 1692c(a)(1). In its defense, the Law Office argued that: (1) Danow's letter had not properly put the firm on notice that he did not want to be telephoned at home; (2) the calls did not violate the statute because they were intended to "notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor," id. § 1692c(c)(2); and (3) the Law Office alternatively satisfied the "bona fide error" defense, which requires proof "by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." Id. § 1692k(c).
In lodging its "bona fide error" defense, the Law Office put forth its owner, David Borack, to testify that the firm maintains detailed policies and procedures pertaining to a standard collection software, which enables the firm to place a "cease and desist" code on an account and is designed to prevent calls from being made to consumers who request contact by mail only. Borack further said that all the firm's callers are extensively trained regarding these policies and procedures, and are taught how to use the Law Office's computerized account notes to document cease and desist correspondence. Borack explained that in Danow's circumstance, however, the firm had failed to document the correspondence as "cease and desist" as demonstrated by the computerized account records. The firm also produced the computerized telephone logs generated by the software. During Borack's cross-examination, Danow's counsel asked whether the Law Office's computerized account notes could be tampered with "to say something now that isn't what it said before," and Borack unequivocally said no, explaining that "[t]his software is designed for data integrity. You cannot backdate, you cannot delete, you cannot add. It time-stamps as you do it . . . You can't phony this record."

With a discussion stating why the court was not going to reverse on the trial court's decision to not allow a bona fide error defense on the matter:

In addition, there was ample evidence in the record for the jury to have found for Danow — including the letter Danow sent to the Law Office, which requested that he only be contacted by mail, the subsequent recorded answering machine messages the Law Office's employees left for Danow, and the failure of the Law Office's logs to document the substance of Danow's letter or one of the calls a Law Office employee made to Danow's answering machine — regardless of the comments his counsel made during closing argument.