Gilroy v . Ameriquest Mortgage 07-CV-74-JD 06/17/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Rosemary A . Gilroy
v. Civil N o . 07-cv-074-JD Opinion N o . 2009 DNH 088 Ameriquest Mortgage Company and Ameriquest Mortgage Company Mortgage Services, Inc.
O R D E R
Proceeding pro se and in forma pauperis, Rosemary A . Gilroy brings a complaint against the defendants, Ameriquest Mortgage Company (“Ameriquest”) and Ameriquest Mortgage Company Mortgage Services, Inc. (“AMC Services”), for violations of New Hampshire Revised Statutes Annotated (“RSA”) 358-C:3, I ( a ) . Specifically, Gilroy alleges that the defendants harassed her by repeatedly calling her at home regarding her delinquent mortgage payments.
The court held a bench trial on May 1 1 , 2009. Each party submitted a set of proposed findings of fact and rulings of law before trial. At the close of the evidence, the defendants submitted a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 52(c). 1 Both parties presented a
1 Rule 52(c) provides: “If a party has been fully heard on an issue during a nonjury trial and the court finds against the brief oral argument on the Rule 52(c) motion. Gilroy
subsequently filed a motion to object to the defendants’ Rule
52(c) motion as well as an objection to the defendants’ motion.
The court has considered these materials, the testimony and
exhibits received at trial, and the parties’ post-trial
submissions, and makes the following findings of fact and rulings of law. See Fed. R. Civ. P. 52(a).
Findings of Fact & Rulings of Law
I. Liability
Gilroy brings suit alleging harassment in violation of RSA
358-C:3, I ( a ) . As the party asserting the harassment claim,
Gilroy carries the burden of proving her claim by a preponderance
of the evidence. State v . Lavoie, 155 N.H. 4 7 7 , 481 (2007) (“In
a civil action the burden of proof is generally on the plaintiff
to establish its case by a preponderance of the evidence [and]
[a]bsent legislative direction to the contrary . . . the general
civil burden of proof [applies].”) (internal citation and
party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgement until the close of evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a).”
2 quotation marks omitted). The court, however, is “not compelled
to accept a plaintiff’s testimony even if uncontradicted.”
Santana v . United States, 572 F.2d 3 3 1 , 335 (1st Cir. 1977) (“The
plaintiff has the burden of proof and the [court] may find that
the testimony does not carry that burden.”); see also Bouthiette
v . Wiggin, 122 N.H. 7 7 4 , 776 (1982). To succeed on her harassment claim, Gilroy must prove that:
(1) the defendants, in an “attempt to collect a debt”; (2) orally
communicated or attempted to orally communicate with her “by
causing a telephone to ring[,] or engaging [her] in telephone
conversation[s]”; (3) “repeatedly or continuously or at unusual
times or at times known to be inconvenient”; (4) “with the intent
to abuse, oppress or harass” her. RSA 358-C:3, I ( a ) .
Gilroy presented the following evidence at trial.2 In March
of 2000, Gilroy purchased five office condominium units in Amherst, New Hampshire. She currently lives in one of the units
(Unit 1 ) , which she converted into a residential condominium.
Unable to find renters for the other four units, Gilroy decided
to convert them into residential units. In order to finance the
conversions, Gilroy mortgaged Units 1 , 2 , and 4 , to Ameriquest in
2 The defendants did not produce evidence at trial.
3 2004. 3 At the time Gilroy took out the mortgages, she knew that she would not be able to make the monthly payments unless the units were rented out. Gilroy was unable to rent the units.
By February of 2006, Gilroy had stopped making payments on the Ameriquest Mortgages. Gilroy testified that she began receiving phone calls at this time from persons seeking to collect payment on the Ameriquest Mortgages. She testified that the callers identified themselves as representatives of Ameriquest or AMC Services and stated that they were calling about her delinquent mortgage payments on her three Ameriquest mortgages. The defendants objected at trial to Gilroy’s testimony regarding the identity of the callers, arguing that it was inadmissible hearsay and that Gilroy failed to establish a proper foundation regarding the identification of the callers. See Fed. R. Evid. 801(c), 901(a). 4
3 The court previously noted, based on the parties’ averments, that AMC Services acted as Ameriquest’s debt servicing corporation during the applicable time period. See Order on Summary Judgment, document n o . 8 2 , at 1 n.1. This was not contested by the parties. 4 Federal Rule of Evidence 801(c) provides that hearsay is a statement, “other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Rule 901(a) provides that, “[t]he requirement of authentication or identification as a condition precedent to
4 The court overruled the defendants’ hearsay objection.
Gilroy’s testimony that the callers identified themselves as
representatives of Ameriquest or AMC Services was admitted for
the limited purpose of showing what Gilroy heard, i.e., that the
callers identified themselves as representing Ameriquest or AMC
Services. It was not admitted to establish the truth of the matter asserted, i.e., that the callers did actually work for, or
represent, Ameriquest or AMC Services. This testimony was
therefore not hearsay. See Fed. R. Evid. 801(c); United States
v . Munoz, 36 F.3d 1229, 1233 (1st Cir. 1994) (“[A]n out-of-court
statement is not hearsay if it is used only to show that the
statement was made and that the listener heard the words
uttered.”).
Gilroy produced sufficient admissible evidence at trial to
prove the identity of the callers. Gilroy testified that the phone number of the incoming call, which was displayed on her
caller I D , was almost identical to the phone numbers which she
had called on several prior occasions at which she had reached
Ameriquest or AMC Services. She further testified that the only
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Thus, courts have recognized that the self- identification of a caller is inadmissible unless sufficiently supported by additional evidence. See United States v . Khan, 53 F.3d 5 0 7 , 516 (2d Cir. 1995).
5 contacts she had in California were Ameriquest and AMC Services
and that the same California numbers would appear on her caller
identification each time the mortgage calls came i n . She
testified that the callers would recite the account number on her
mortgage, or otherwise identify one of the mortgages on Gilroy’s
three units, and ask why she had not made any payments. Gilroy’s daughter, Robin Benjamin, testified that during the phone
conversations, which she witnessed up through approximately
September of 2006, Gilroy would talk about overdue mortgage
payments while on the phone with the callers, would often sound
angry, and would tell the callers to stop calling. Gilroy
presented sufficient admissible evidence, therefore, to establish
that the callers were the defendants or representatives of the
defendants. See United States v . Console, 13 F.3d 6 4 1 , 661 (3d
Cir. 1993) (“It is well settled that telephone calls may be authenticated by circumstantial evidence as well as by direct
recognition of the person calling.”); Fed. R. Evid. 9 0 1 , Advisory
Committee notes, example 4 . (“[A] telephone conversation may be
shown to have emanated from a particular person by virtue of its
disclosing knowledge of facts known peculiarly to him.”).
Gilroy testified that she received up to three calls per
night, up to three nights per week from February 2006 through
February 2007 for a total of up to 468 calls. Benjamin testified
6 that she witnessed Gilroy receiving one to three calls per night,
one to two nights per week, for a six month-period, for a total
of up to 156 calls. Although Gilroy did not present evidence of
specific dates and times for the calls, RSA 358-C:3, I(a) does
not require that a debtor prove specific dates and times.
The testimonies of Gilroy and Benjamin were sufficiently credible to establish that Gilroy received, by a conservative estimate,
approximately 200 calls from February of 2006 through February of
2007.
Gilroy claims that each of these calls violated RSA 358-C:3,
I(a). There is a lack of New Hampshire case law interpreting RSA
358-C:3, I ( a ) . The court, therefore, looks to the federal Fair
Debt Collection Practices Act (“FDCPA”) for guidance because it
contains provisions similar to the New Hampshire law.5 The
relevant portion of the FDCPA provides that “[a] debt collector may not engage in any conduct the natural consequence of which is
5 Gilroy insists that the FDCPA also applies to her claim and that she is entitled to statutory damages under the FDCPA of $1,000 per violation. The court looks to relevant federal law only for guidance in interpreting and applying RSA 358-C:3, I ( a ) . The court has held, in numerous orders, that Gilroy’s complaint pled a harassment claim only under state law, and that therefore only RSA 358-C:3, I(a) applies in this case. The court directs Gilroy to those orders, which explain why her claim is limited to the state law. See Preliminary Review Order, doc. n o . 4 , at 12- 1 3 ; Order on Summary Judgment, doc. n o . 8 2 , at 4 ; Procedural Order, doc. n o . 9 1 ; Final Pretrial Order, doc. n o . 105, at 1 .
7 to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. The FDCPA prohibits a debt collector from “[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,” id. at § 1692d(5), and from “communicat[ing] with a consumer in connection with the collection of any debt . . . at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer,” id. § 1692c(a)(1).6
In interpreting the provisions of the FDCPA, courts have
held that “[w]hether there is actionable harassment or annoyance
turns not only on the volume of calls made, but also on the
pattern of calls.” Akalwadi v . Risk Mgmt. Alternatives, Inc.,
336 F. Supp. 2d 4 9 2 , 505 (D. Md. 2004); Joseph v . J.J. MacIntyre
Cos., 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002). For example,
6 At trial, both parties addressed the time period outlined in 15 U.S.C. § 1692c(a)(1) which provides that “[i]n the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antimeridian and before 9 o’clock postmeridian, local time at the consumer’s location.” The New Hampshire law does not contain a similar provision and in any event, the court finds that the time period cited in this provision is inapplicable given that Gilroy notified the defendants that anytime after 8 p.m. was inconvenient for her because she goes to bed early.
8 courts have found violations of § 1692d(5) where the defendant
repeatedly telephoned the plaintiff after being told by the
plaintiff to stop calling, Chiverton v . Fed. Fin. Group, Inc.,
399 F. Supp. 2d 9 6 , 104 (D. Conn. 2005) and where the defendant
made six calls to the plaintiff in twenty-four minutes, Kuhn v .
Account Control Tech., 865 F. Supp. 1443, 1453 (D. Nev. 1994). In Sanchez v . Client Servs., 520 F. Supp. 2d 1149 (N.D. Cal.
2007), the court recognized that “the frequency and volume of . .
. telephone calls [can] show that defendants intended to annoy,
abuse and harass [the] plaintiff.” Id. at 1161.
Intent may also be inferred by evidence that the debt
collector continued to call the debtor after the debtor had asked
not to be called and had repeatedly refused to pay the alleged
debt, or during a time of day which the debtor had informed the
debt collector was inconvenient. See Kerwin v . Remittance Assistance Corp., 559 F. Supp. 2d 1117, 1124 (D. Nev. 2008)
(“Intent to annoy, abuse, or harass may be inferred from the
frequency of phone calls [or] the substance of the phone calls .
. . . ” ) ; Bingham v . Collection Bureau, Inc., 505 F. Supp. 8 6 4 ,
873 (D.N.D. 1981) (finding that call by collection agency
immediately following a prior call could establish harassment);
cf. In re Coffey’s Case, 157 N.H. 156, 178 (2008) (recognizing
that intent may be proven through sufficient circumstantial
9 evidence). 7 Further, at least one court has rejected a
defendant’s argument that the frequency of calls may be excused
where the defendant is collecting on several separate debts,
finding that “such a distinction [is not] apparent from the plain
language of . . . 15 U.S.C. § 1692d(5).” Joseph, 238 F. Supp. 2d
at 1169. Such limiting language is also absent from RSA 358-C:3,
I(a).
Gilroy testified that she told the defendants to stop
calling her, that the calls were upsetting her, and that she did
not have the money to pay the mortgages. She also testified that
the defendants repeatedly called her at home around 8 p.m. and
sometimes as late as 9 p.m., after she had informed them that she
often went to bed by 8 or 9 p.m. and that the evening calls were
bothering her. Benjamin testified that she observed Gilroy
become angry while on the phone with the callers and that she
heard Gilroy tell the callers to stop calling. Gilroy further
testified that on two occasions in July of 2006, the callers said
7 The defendants cite to Bieber v . Associated Collection Servs., Inc., 631 F. Supp. 1410 (D. Kan. 1986) and argue that the FDCPA has been interpreted as prohibiting only oppressive and outrageous conduct. The court declines to apply this principle here. This case is not binding upon the court’s interpretation and application of New Hampshire law. Moreover, this principle was espoused in response to an allegation that during a phone conversation, the defendant asked whether the plaintiffs had filed bankruptcy.
10 that Gilroy was a “liar” when she told them that she had declared
bankruptcy and did not have an attorney representing her.8
The credible testimonies of Gilroy and Benjamin concerning
the frequency, nature, and time of day of the calls constitute
sufficient evidence permitting the court to infer the defendants’
intent to “abuse, oppress or harass” Gilroy. RSA 358-C:3, I ( a ) . Once Gilroy told the defendants to stop calling her, that she
could not pay the mortgages, and that their nighttime calls were
bothering her, each of the 200 subsequent phone calls to Gilroy
constituted a violation of RSA 358-C:3, I ( a ) . The defendants’
intent to harass Gilroy is further evidenced by the two July
calls in which the defendants called Gilroy a “liar.”
For the foregoing reasons, the court holds that Gilroy has
proven her claim of harassment under RSA 358-C:3, I ( a ) .
II. Damages
Gilroy seeks statutory damages and all damages proximately
caused by the violations of RSA 358-C:3, I ( a ) . RSA 358-C:4, I .
The statute, however, only permits recovery for the greater of
either “the sum of $200 plus costs and reasonable attorney’s fees
for each violation, or . . . [f]or all damages proximately caused
8 The defendants did not object to this testimony.
11 by the violation.” RSA 358-C:4, I . To prove the latter, Gilroy
must show that the defendants’ violations of RSA 358-C:3, I(a)
were the proximate cause of her injuries. See Carignan v . New
Hampshire Int’l Speedway, 151 N.H. 409, 414 (2004). “[T]o
establish proximate cause, the plaintiff must prove that the
defendant’s conduct caused or contributed to cause the harm.” Id.
Gilroy claims that the defendants’ actions affected her
health and concentration, and prevented her from refinancing the
units, which in turn caused her to go further into default and
become unable to pay her property taxes. Gilroy’s injuries,
however, are due to her lack of income. It is undisputed that
Gilroy did not have the income to pay the Ameriquest mortgages
before the calls began in February of 2006 because she could not
rent the units. There is no evidence that the defendants’ phone calls caused or contributed to Gilroy’s inability to obtain an
income and pay the mortgages and property taxes. Therefore,
Gilroy has failed to establish proximate cause and may not
recover damages under RSA 358-C:4, I ( b ) .
Gilroy i s , however, entitled to statutory damages of $200
for each violation of RSA 358-C:3, I(a) by the defendants. RSA
358-C:4, I ( a ) . As the court found above, based upon Gilroy’s and
Benjamin’s credible testimonies, the court conservatively
12 estimates that the defendants made 200 calls in violation of RSA
358-C:3, I ( a ) . See Fed. R. Civ. P. 5 2 . The statute specifies
damages of $200 per violation, which yields a total of $40,000 in
statutory damages. See RSA 358-C:4, I ( a ) .
Conclusion
Based on the foregoing findings and rulings, the court
orders judgment for Gilroy in the amount of $40,000. Any other
requests for findings of fact or rulings of law submitted by the
parties and not expressly or implicitly granted in the body of
this opinion are hereby denied. The defendants’ motion for
judgment on partial findings (document n o . 127) is granted as to
damages proximately caused and is otherwise denied, and Gilroy’s
motion to object (document n o . 129) is terminated as moot. The
clerk shall enter judgment accordingly and close the case.
SO ORDERED.
)Joseph A. DiClerico, Jr __ . United States District Judge June 1 7 , 2009
cc: Rosemary A . Gilroy, pro se Thomas C . Tretter, Esquire