Gilroy v. Ameriquest Mortg. Co.

• Citation: 632 F.Supp.2d 132,2009 DNH 088
• Decision Date: 17 June 2009
• Docket Number: Civil No. 07-cv-074-JD.
• Parties: Rosemary A. GILROY v. AMERIQUEST MORTGAGE COMPANY and Ameriquest Mortgage Company Mortgage Services, Inc.
• Court: U.S. District Court — District of New Hampshire

632 F.Supp.2d 132

2009 DNH 088

Rosemary A. GILROY v. AMERIQUEST MORTGAGE COMPANY and Ameriquest Mortgage Company Mortgage Services, Inc.

Civil No. 07-cv-074-JD.

United States District Court, D. New Hampshire.

June 17, 2009.

Rosemary A. Gilroy, Amherst, NH, pro se.

Thomas C. Tretter, Ablitt Law Offices, PC, Stoneham, MA, for Ameriquest Mortgage Company and Ameriquest Mortgage Company Mortgage Services, Inc.

ORDER

JOSEPH A. DiCLERICO, JR., District Judge.

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 11, 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 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. 477, 481, 924 A.2d 370 (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 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 331, 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. 774, 776, 451 A.2d 368 (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 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

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 ID, 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 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 in. 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 641, 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. 901, 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 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 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 492, 505 (D.Md.2004); Joseph v. J.J. MacIntyre Cos., 238 F.Supp.2d 1158, 1168 (N.D.Cal.2002). For example, 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 96, 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. 864, 873 (D.N.D.1981) (finding that call by collection agency immediately following a prior call could...