iTCPAWorld has been pretty dark lately.
We had the darkness of the Barbie movie and the Pac 12’s death to contend with. Then I brought you the story of the widow who pursued her husband’s TCPA case on appeal and won.
Now I have maybe the darkest story yet.
Imagine your daughter dies.
Ok, maybe don’t imagine that because its awful.
But imagine you have a friend whose daughter dies and then the company that issued her a student loan starts calling your friend to pay back her debt…even though she’s dead. But imagine your friend actually does make 8 years of payments because.. great guy. Then imagine that your friend only co-signed for one of two loans, but your friend paid both loans anyway. But then your friend got into financial trouble and couldnt make the payments anymore and the lender called your friend and demanded payment on both loans regardless. And imagine they called over 300 times in about a year to collect after he asked the collector to stop calling 15 times and advised it brought back memories of his dead daughter.
This–allegedly–actually happened to a guy named Michael Berrow and this is pretty shameless if it is true.
According to a new ruling in Berrow v. Navient, 2023 WL 5016999 (D. Az. Aug. 7, 2023) Mr. Berrow’s daughter died back in 2009. Being a man of great integrity, he paid back her debt for college–even though she died–for 8 years. But in 2017 he allegedly had some financial difficulties and stopped paying.
Then Navient called him over 300 times. He allegedly repeatedly told Navient the calls were impacting him and reminding him of his daughter’s death. He claims he asked for the calls to stop 15 times but they continued.
Plaintiff filed suit under the TCPA, the FCRA (for false reporting on his credit) and for common law intrusion upon seclusion.
The TCPA claim was thrown out because it was based on ATDS allegations and Plaintiff could not show Navient randomly generated his number as required under Ninth Circuit–but not Supreme Court–precedent.
But the Court punished Navient on the FCRA claim–ruling in favor of Plaintiff that the investigation Navient conducted was not reasonable:
From all the information provided, the “investigation” of the credit bureau department seemed to be no more than reviewing the records on the computer which show that Mr. Berrow’s name and social security number are associated with three loans. However, we know those records are wrong because Mr. Berrow was never approved for the 2002 loan.
Word to the wise: having an analyst simply confirm that reporting matches a company’s records is not the sort of reasonable reinvestigation required under FCRA section 1681s-2b. And the Court granted judgment to Plaintiff since Navient had apparently done nothing more than that.
But the interesting thing to me is the outcome of intrusion upon seclusion. Courts require highly offensive conduct and intent to harass to make out this tort claim. But the judge in Berrow determined a jury could, indeed, find Navient’s conduct was highly offensive since Plaintiff allegedly repeatedly asked for calls to stop and Navient knew it was calling a guy based on a loan to his dead daughter. So the jury will be asked to determine whether Navient was intentionally harassing the guy.
Eesh.
Now I will say that servicers and debt collectors sometimes get caught in a trap because the TCPA requires collectors to honor oral revocations but the FDCPA does not. Here it seems like the guy repeatedly asked orally for calls to stop-which required Navient to not use an ATDS to contact him–but never asked for calls to stop in writing–which allowed Navient to continue calling him manually.
Using the intrusion upon seclusion tort as a way to navigate between these two statutes is pretty unusual, and I think the fact the guy’s daughter died had a lot to do with it.
