Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ala.: Mortgage company may be liable for calling debtor’s husband over 100 times, (Feb 7, 2014)

By Jody Coultas, J.D.

A jury must determine whether 21st Mortgage Corporation violated the Telephone Consumer Protection Act (TPCA) and Alabama invasion of privacy common law by calling Charles Hunt, the husband of a mortgage holder, in an attempt to collect the debt of his wife, the federal district court in Birmingham has held (Hunt v. 21st Mortgage Corporation, February 4, 2014, Acker, W.). The parties’ cross motions for summary judgment were denied.

21st Mortgage allegedly made over 100 calls to Hunt’s cell phone between 2008 and 2011, despite Hunt’s repeated insistence that he was not liable for the mortgage and that the phone number was his work number. Hunt’s family also allegedly received calls.

Hunt’s wife brought TCPA claims against 21st Mortgage, which was settled shortly after Hunt filed this identical suit.

TCPA. The TCPA prohibits calls using any automatic telephone dialing system or an artificial or prerecorded voice to cell phones. Courts look at whether the telephone equipment used to place a call had the capacity, without substantial modification, to store or produce numbers to be called using a random or sequential number generator, rather than whether the equipment was actually used in such a way to place the call or calls at issue.

Neither party could show that they would succeed on the TCPA claims as a matter of law, according to the court. The system used by 21st Mortgage would have automatic dialing capability if, but only if, certain software were installed. Whether that software was installed at the time of the calls was disputed by both parties, albeit with evidence the court found “wiggly and waffling.” 21st Mortgage also dismantled its system and replaced it with a new system while Hunt’s wife’s lawsuit was pending. The issues then became the credibility of the witnesses for each party. Credibility determinations are the exclusive domain of the jury. Thus, neither party was awarded summary judgment.

Privacy. Alabama’s invasion of privacy law makes it illegal to intrude “upon the solitude or seclusion of another or his private affairs or concerns … if the intrusion would be highly offensive to a reasonable person.”

The court held that 21st Mortgage’s calls fell under the invasion of privacy definition. Repeated phone calls can be an intrusion when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding. Twenty-eight to 35 calls have been found sufficient to constitute an invasion. Debt collection effort must not rise to the level of a “’systematic campaign’ of harassment,” or “a vicious attempt to coerce payment.” Because Hunt was not the debtor, the calls made to his cell phone attempting to collect the debt rose to the level of outrageous. 21st Century made over 100 calls to Hunt, many more than have been found to be an invasion in other cases. 21st Century also hounded Hunt’s neighbors and family, which was not reasonable. A jury must determine whether the intrusion was sufficiently outrageous or offensive to a reasonable person to create liability.

The case is No. 2:12-CV-2697-WMA.

Attorneys: Wesley L. Phillips (Phillips Law Group LLC) for Charles Hunt. James Ellington Mitchell, Jr. (Wilson & Berryhill PC) for 21st Mortgage Corp.

Companies: 21st Mortgage Corporation

Cases: Privacy ConsumerProtection AlabamaNews