In Tyler v. Mirand Response Systems, Inc., the Southern District of Texas recently granted summary judgment in favor of a debt collector in a claim brought under § 1692d(5) of the Fair Debt Collection Practices Act.

Plaintiff Nina Tyler had become indebted to her bank, and the debt was transferred to Mirand Response Systems, Inc. for collection. Tyler filed suit, alleging that the telephone calls she received from Mirand violated the FDCPA.

The provision of the FDCPA at issue, 15 U.S.C. § 1692d, provides that a “debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” More specifically, § 1692d prohibits “[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.”

In ruling on Mirand’s motion for summary judgment, the Court noted that Tyler did not allege that the calls were made early in the morning or late at night or that any of Mirand’s agents had spoken to her in an abusive or threatening manner. Rather, her claims were solely based on the volume of calls – 30 to 40 over a two-month period.

The evidence, however, showed that Tyler spoke with an agent of the debt collector on March 8, 2017 and agreed to have Mirand call her again two weeks later to try to resolve the debt. No additional calls were made until March 22, and Mirand was unable to get through to Tyler until May 2, 2017. During a call on that date, Tyler stated she did not consent to autodialed calls and hung up on Mirand’s agent. No further calls were made. The Court held that this evidence was not sufficient to show Mirand intended the calls to be harassing. Additionally, because Tyler could not establish the intent element of her claim, the Court granted summary judgment in favor of the defendant debt collector.

The Tyler decision reaffirms that a plaintiff must establish an intent to harass to succeed on a claim under § 1692d(5) of the FDCPA. Such intent cannot be assumed merely because a defendant placed a large number of collection calls.