Gilroy v. Ameriquest Mortgage Co.
2009 DNH 088, 632 F. Supp. 2d 132 (2009)
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Rule of Law:
A creditor's intent to "abuse, oppress or harass" a debtor under a state debt collection statute can be inferred from circumstantial evidence, such as continuing to make a high volume of calls after the debtor has explicitly requested the calls to stop and has informed the creditor that the calls are occurring at an inconvenient time.
Facts:
- In 2004, Rosemary A. Gilroy obtained three mortgages from Ameriquest Mortgage Company to finance the conversion of her commercial condominium units into residential ones.
- Gilroy understood at the time that she would be unable to make the monthly mortgage payments unless she could rent out the converted units.
- Gilroy was unable to find renters for the units.
- By February 2006, Gilroy had stopped making payments on her Ameriquest mortgages.
- Between February 2006 and February 2007, representatives of Ameriquest began calling Gilroy repeatedly regarding her delinquent payments.
- Gilroy told the callers to stop calling, informed them that she did not have the money to pay the mortgages, and stated that calls in the evening were inconvenient as she often went to bed by 8 or 9 p.m.
- Despite her requests, the calls continued, sometimes occurring up to three times a night and as late as 9 p.m.
- On two occasions in July 2006, callers accused Gilroy of being a "liar" when she told them about her financial situation.
Procedural Posture:
- Rosemary A. Gilroy filed a pro se complaint against Ameriquest Mortgage Company and AMC Services in the United States District Court for the District of New Hampshire.
- The case proceeded to a bench trial before a district judge.
- At the close of the evidence, the defendants made a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 52(c).
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Issue:
Does a creditor's conduct of making approximately 200 collection calls to a debtor over a one-year period, continuing after the debtor requested the calls cease and stated the times were inconvenient, constitute harassment with the intent to "abuse, oppress or harass" in violation of New Hampshire RSA 358-C:3, I(a)?
Opinions:
Majority - Joseph A. DiClerico, Jr.
Yes. A creditor's conduct of making approximately 200 collection calls to a debtor after being told to stop and that the times were inconvenient is sufficient to infer an intent to "abuse, oppress or harass" in violation of the New Hampshire statute. The court reasons that while direct evidence of intent is rare, it may be inferred from circumstantial evidence. As there was no New Hampshire case law on point, the court looked to the federal Fair Debt Collection Practices Act (FDCPA) for guidance, noting that under the FDCPA, intent can be inferred from the volume and pattern of calls. The defendants' persistence after Gilroy explicitly told them to stop calling, that she could not pay, and that the calls were inconveniently timed, combined with the callers calling her a "liar," provided sufficient circumstantial evidence to establish the requisite intent to harass.
Analysis:
This decision is significant for establishing how intent to harass can be proven under New Hampshire's debt collection statute, particularly when state law is undeveloped. By looking to the federal FDCPA for interpretive guidance, the court sets a precedent for future state law cases to use federal standards to analyze the pattern, volume, and nature of creditor communications. The ruling confirms that a plaintiff can establish intent circumstantially, making it more difficult for creditors to defend against harassment claims by merely denying malicious intent. This case provides a clear framework for proving harassment based on a creditor's observable conduct, such as ignoring a debtor's explicit requests to cease communications.
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