Can the Original Creditor Harass You at Work?

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David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Can the Original Creditor Harass You at Work?

Post by David A. Szwak »

Can the Original Creditor Harass You at Work?

============

378 So.2d 1032
Court of Appeal of Louisiana, Second Circuit.
FORD MOTOR CREDIT COMPANY, Plaintiff-Appellant,
v.
Katie M. DIFFEY, a/k/a Katie Diffey Harrison, Defendant-Appellee.
No. 13984.

Dec. 3, 1979.
En Banc. Rehearing Denied Jan. 9, 1980.
Writ Refused March 3, 1980.

Before PRICE, MARVIN and JONES, JJ.


MARVIN, Judge.

The legal issue in this appeal is whether the particular conduct of the creditor, which attempted collection from its debtor under an automobile financing contract, invaded the privacy of its debtor or unreasonably coerced and intentionally inflicted emotional distress upon its debtor.


[1] The lower court concluded that the creditor's conduct constituted unreasonable coercion and awarded the debtor $1,000 in damages. We accept the trial court's stated findings as to particular facts and where findings on other fact issues were not made, we examine those fact issues in a light most favorable to the debtor. We find, however, that the trial court was clearly wrong in legally concluding that the conduct in question amounted to unreasonable coercion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).


About six months before her marriage, Ms. Diffey purchased a Ford automobile and agreed to pay the balance in 36 monthly installments beginning in March 1976. In December 1976 Ms. Diffey and her husband were hospitalized and were temporarily*1034 unable to work. By agreement, the January 1977 installment payment was deferred. Because of one or more NSF checks and late payments between February and June 1977, the lower court found that “a misunderstanding arose as to whether payments were being made on time.â€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Louisiana recognizes that a creditor may be liable in damage for unreasonable acts of coercion in collecting a debt. Tuyes v. Chambers, 144 La. 723, 81 So. 265 (La.1919); Hamilton v. Lumberman's Mutual Casualty Co., 82 So.2d 61 (La.App.1st Cir. 1955); Pack v. Wise, 155 So.2d 909 (La.App.3d Cir. 1963); Columbia Finance Corp. v. Robitcheck, 142 So.2d 625 (La.App.4th Cir. 1962); Quina v. Roberts, 16 So.2d 558 (La.App.1944); Booty v. American Finance Corporation of Shreveport, 224 So.2d 512 (La.App.2d Cir. 1969).
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Further, the Court finds that the creditor did not harass the debtor but did take judicial action to collect said debt as provided for by law. The creditor contacted the debtor at her place of employment to collect the Visa credit card, but there was no evidence of harassment.
In re Schartner
7 B.R. 885
Bkrtcy.Ohio, 1980.
December 31, 1980
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

1. Tehrani v. Rivera,
Not Reported in A.2d, 1999 WL 989470, 25 Conn. L. Rptr. 568, Conn.Super., October 19, 1999 (NO. CV 990266800S)

...with the creditor voluntarily from his place of employment on numerous occasions. Section 36a-647-4 regulates communications between the creditor and the consumer debtor, Subsection three is specific requiring that a creditor may not communicate with a consumer debtor in connection with the collection of any debt at the consumer's place of employment if the creditor knows or has reason to know that the consumer debtor's employer prohibits the consumer debtor from receiving such communicating. The defendants claim that the evidence compels the conclusion that the plaintiff violated the regulation. The...


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2. Tillquist v. Ford Motor Credit Co.,
714 F.Supp. 607, 10 UCC Rep.Serv.2d 601, D.Conn., June 15, 1989 (NO. CIV.A.N-85-533 (RCZ))

...Sufficiency. (Formerly 92Hk39 Consumer Protection) Evidence demonstrated pattern of harassment by representatives of sale finance company in violation of Connecticut Creditor's Collection Practices Act; representatives frequently phoned debtor's wife at her place of employment and discussed debt with her, even after she had informed them the calls were placing her job in jeopardy, and continually called debtor at his place of employment after debtor had requested finance company to cease such activity. C.G.S.A. §§ 36-243b 36-243c [12] 29T Antitrust and Trade Regulation...
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

1. Tehrani v. Rivera,
Not Reported in A.2d, 1999 WL 989470, 25 Conn. L. Rptr. 568, Conn.Super., October 19, 1999 (NO. CV 990266800S)

...and telephone number and in fact communicated with the creditor voluntarily from his place of employment on numerous occasions. Section 36a-647-4 regulates communications between the creditor and the consumer debtor, Subsection three is specific requiring that a creditor may not communicate...


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2. Rihn v. Verrinder,
Not Reported in A.2d, 1998 WL 892683, Conn.Super., December 14, 1998 (NO. CV 950050323S)

...of a “consumer debtorâ€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Carr v. Hibernia Nat. Bank
251 Fed.Appx. 855
C.A.5 (La.),2007.
August 20, 2007

Appeal from the United States District Court for the Middle District of Louisiana, USDC No. 3:05-CV-1281.

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.


PER CURIAM: FN*

FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
**1 Jacqueline Carr (Carr) appeals the district court's dismissal of her civil action against Hibernia National Bank (Hibernia) FN** for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. In the district court, she alleged that Hibernia improperly filed a state court civil action to revive a judgment against her deceased father, A.E. Carr, Jr. (Mr. Carr), improperly served her with process in that action, and prosecuted that action for over five *857 years. She argues that her complaint stated viable constitutional claims for violations of due process, equal protection, and invasion of privacy, as well as a claim under a provision of the National Banking Act, 12 U.S.C. § 24(6) and (7). She further states that her complaint stated viable pendent state law claims for abuse of process, wrongful litigation for debt collection, intentional infliction of emotional distress, and desecration of the deceased Mr. Carr. She asserts that her state law claims were not prescribed. For the first time on appeal, she contends that her complaint also alleged a viable state law claim for invasion of privacy. She maintains that the district court had both federal question jurisdiction and diversity jurisdiction over her complaint.


FN** During the pendency of these proceedings, Hibernia merged with Capital One, N.A. (Capital One), and the defendant is now known as Capital One. To avoid confusion, we will refer to the defendant as Hibernia.
“When the basis of federal jurisdiction is intertwined with the plaintiff's federal cause of action, the court should assume jurisdiction over the case and decide the case on the merits.â€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Hairford v. Centurytel, Inc.
856 So.2d 139
La.App. 3 Cir.,2003.
October 01, 2003

Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.


**1 DECUIR, Judge.

Jimmie Hairford filed suit against CenturyTel, Inc. and CenturyTel of Central Louisiana, L.L.C. seeking damages for mental anguish suffered as a result of a dispute over his telephone bill. At the conclusion of a bench trial, Hairford was awarded damages in the amount of $4,500.00. CenturyTel filed the instant appeal and, for the following reasons, we affirm.


CenturyTel provided telephone service to Hairford for many years. In 1991, Hairford authorized CenturyTel to draft his checking account with Cottonport Bank for payment of his monthly bill. In March of 2002, Hairford received a letter from CenturyTel addressed to “Connie Sheehan Hairford,â€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Cadle Co. v. Hobbs
673 So.2d 1363
La.App. 3 Cir.,1996.
May 08, 1996

Before WOODARD, PETERS and SULLIVAN, JJ.


PETERS, Judge.

This litigation began as a suit on a promissory note and for recognition of a mortgage filed by The Cadle Company against Betty Bradford Teasley. FN1 Ms. Teasley reconvened for damages allegedly sustained because of The Cadle Company's collection methods. After trial, judgment was rendered in favor of The Cadle Company and against Ms. Teasley for $585.56 together with $232.42 in accumulated*1364 interest through December 7, 1994; for interest on the unpaid balance of the note at the rate of eighteen percent from December 8, 1994, until paid; for twenty-five percent of the unpaid balance and accumulated interest as attorney fees; and for recognition of a mortgage on certain immovable property located in Rapides Parish, Louisiana. Judgment on the reconventional demand was rendered in favor of Ms. Teasley and against The Cadle Company in the amount of $5,000.00. The judgment provided that each party would bear its own costs associated with the litigation. The Cadle Company has appealed.


FN1. At the time the original note was signed, the defendant signed it as Betty Bradford Hobbs. Since that time, she has married Jack Teasley, Jr. We will refer to her in this opinion as Betty Bradford Teasley or Ms. Teasley.


DISCUSSION OF THE RECORD


In July 1986, Ms. Teasley entered into a contract with Southern Siding Company, Inc., wherein Southern Siding agreed to install siding on a house owned by Ms. Teasley. In exchange for the siding installation, Ms. Teasley agreed to pay Southern Siding a total of $8,783.40, payable over sixty months at the rate of $146.39 per month beginning September 1, 1986. As security for the debt, Ms. Teasley executed a promissory note and mortgage on the property on which the siding was to be installed.


The security agreement was apparently assigned by Southern Siding to Central Savings and Loan Association, as Ms. Teasley timely paid Central Savings fifty-three monthly payments pursuant to the agreement. In March 1991, Ms. Teasley received a notice that Central Savings had become insolvent and that Resolution Trust Corporation had been appointed receiver of the failed savings and loan. According to Ms. Teasley, the notice informed her that she would be receiving payment coupons informing her as to where the payments should be sent. She received two coupons from Resolution Trust and immediately returned each coupon with a payment of $146.39. These payments would have brought the account current through March 1, 1991. When Ms. Teasley did not receive another coupon during the month of March, she forwarded another payment on April 1, 1991, to the Central Savings and Loan Association address and requested that the savings and loan forward the payment to the appropriate payee.


Ms. Teasley testified that after consulting with her husband, she decided not to send another payment until she heard from the proper authority, as she did not wish to pay the incorrect payee. According to Ms. Teasley, the next time she was contacted by anyone concerning the obligation was in July 1994, or over three years later. On that day, Ms. Teasley received a telephone call at her place of employment from a Mr. Jon Gluckner, who claimed to be a representative of The Cadle Company and inquired as to why Ms. Teasley had not paid her debt. Ms. Teasley informed Mr. Gluckner that her brother lived in the family home and that if there were any unpaid debts, her brother would be willing to pay them. Ms. Teasley then gave Mr. Gluckner her brother's telephone number and considered the matter closed.


According to Ms. Teasley, she heard nothing else concerning the debt until October 1994, at which time Mr. Gluckner again telephoned her at her place of employment. The next time Mr. Gluckner called Ms. Teasley was on December 7, 1994, and again, this telephone call was at Ms. Teasley's place of employment. At this time, Mr. Gluckner informed Ms. Teasley that although he had contacted her brother and her brother had agreed to pay the debt, Mr. Gluckner had not received payment, and he inquired as to what she was going to do about the obligation. Ms. Teasley testified that when she again suggested that he contact her brother, Mr. Gluckner became very abusive. He inquired as to whether she had ever had any garnishments against her, and when she answered in the negative, he responded in words to the effect that she was soon to have her first. As to the remainder of the conversation, Ms. Teasley testified as follows:


He said you remember what color you are. He said you are a nigger and I am a white boy. He said and anything I send those stupid Southerners down South, they will believe when a Northern white man tell [sic] them down there.


According to Ms. Teasley, Mr. Gluckner telephoned again just before Christmas of 1994, *1365 again threatening her and stating “he would not only take my mom and dad's furniture, that he would take my house and that he would even take my dog if necessary.â€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Champlin v. Washington Trust Co., of Westerly
478 A.2d 985
R.I.,1984
OPINION


KELLEHER, Justice.

The crucial issue in this appeal is whether certain conduct by the attorney representing the defendant bank is sufficient to impose liability in a Superior Court civil action in which the plaintiff seeks damages for the negligent or intentional infliction of mental distress. Our answer is in the negative, and our rationale will follow a brief recitation of the pertinent facts.


This litigation revolves around a single 1976 telephone call plaintiff, Barbara B. Champlin (Barbara), received from the attorney for defendant, The Washington Trust Company, of Westerly (the bank), in which the attorney sought payment on a series of notes allegedly executed by Barbara and her husband, Thomas Champlin (Thomas). Barbara and Thomas were married in 1954. During the next several years they became the parents of three children and the builders of a home situated on Post Road in the Matunuck section of South Kingstown. In the early 1970s, Thomas, who then worked for Electric Boat in nearby Groton, Connecticut, decided to go into business for himself. In furtherance of this goal, he formed a corporation called Noise & Vibration Control, Inc. (Vibration Control) and began “balancing turbines for the [United States] Navy.â€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

§1788.17. Notwithstanding any other provision of this title, every
debt collector collecting or attempting to collect a consumer debt
shall comply with the provisions of Sections 1692b to 1692j,
inclusive, of, and shall be subject to the remedies in Section 1692k
of, Title 15 of the United States Code. However, subsection (11) of
Section 1692e and Section 1692g shall not apply to any person
specified in paragraphs (A) and (B) of subsection (6) of Section
1692a of Title 15 of the United States Code or that person's
principal. The references to federal codes in this section refer to
those codes as they read January 1, 2001.

California Rosenthal-Robbins Act
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Rosenthal Fair Debt Collection Practices Act.

Post by David A. Szwak »

APPLIES TO CREDITORS AND DEBT COLLECTORS

=========

CIVIL CODE
SECTION 1788-1788.3


§1788-1788.32. This title may be cited as the Rosenthal Fair Debt
Collection Practices Act.

1788.1. (a) The Legislature makes the following findings:
(1) The banking and credit system and grantors of credit to
consumers are dependent upon the collection of just and owing debts.
Unfair or deceptive collection practices undermine the public
confidence which is essential to the continued functioning of the
banking and credit system and sound extensions of credit to
consumers.
(2) There is need to ensure that debt collectors and debtors
exercise their responsibilities to one another with fairness, honesty
and due regard for the rights of the other.
(b) It is the purpose of this title to prohibit debt collectors
from engaging in unfair or deceptive acts or practices in the
collection of consumer debts and to require debtors to act fairly in
entering into and honoring such debts, as specified in this title.


1788.2. (a) Definitions and rules of construction set forth in this
section are applicable for the purpose of this title.
(b) The term "debt collection" means any act or practice in
connection with the collection of consumer debts.
(c) The term "debt collector" means any person who, in the
ordinary course of business, regularly, on behalf of himself or
herself or others, engages in debt collection. The term includes any
person who composes and sells, or offers to compose and sell, forms,
letters, and other collection media used or intended to be used for
debt collection, but does not include an attorney or counselor at
law.
(d) The term "debt" means money, property or their equivalent
which is due or owing or alleged to be due or owing from a natural
person to another person.
(e) The term "consumer credit transaction" means a transaction
between a natural person and another person in which property,
services or money is acquired on credit by that natural person from
such other person primarily for personal, family, or household
purposes.
(f) The terms "consumer debt" and "consumer credit" mean money,
property or their equivalent, due or owing or alleged to be due or
owing from a natural person by reason of a consumer credit
transaction.
(g) The term "person" means a natural person, partnership,
corporation, limited liability company, trust, estate, cooperative,
association or other similar entity.
(h) The term "debtor" means a natural person from whom a debt
collector seeks to collect a consumer debt which is due and owing or
alleged to be due and owing from such person.
(i) The term "creditor" means a person who extends consumer credit
to a debtor.
(j) The term "consumer credit report" means any written, oral or
other communication of any information by a consumer reporting agency
bearing on a consumer's creditworthiness, credit standing, credit
capacity, character, general reputation, personal characteristics or
mode of living which is used or expected to be used or collected in
whole or in part for the purpose of serving as a factor in
establishing the consumer's eligibility for (1) credit or insurance
to be used primarily for person, family, or household purposes, or
(2) employment purposes, or (3) other purposes authorized under any
applicable federal or state law or regulation. The term does not
include (a) any report containing information solely as to
transactions or experiences between the consumer and the person
making the report; (b) any authorization or approval of a specific
extension of credit directly or indirectly by the issuer of a credit
card or similar device; or (c) any report in which a person who has
been requested by a third party to make a specific extension of
credit directly or indirectly to a consumer conveys his or her
decision with respect to that request, if the third party advises the
consumer of the name and address of the person to whom the request
was made and such person makes the disclosures to the consumer
required under any applicable federal or state law or regulation.
(k) The term "consumer reporting agency" means any person which,
for monetary fees, dues, or on a cooperative nonprofit basis,
regularly engages, in whole or in part, in the practice of assembling
or evaluating consumer credit information or other information on
consumers for the purpose of furnishing consumer credit reports to
third parties, and which uses any means or facility for the purpose
of preparing or furnishing consumer credit reports.


1788.3. Nothing contained in this title shall be construed to
prohibit a credit union chartered under Division 5 (commencing with
Section 14000) of the Financial Code or under the Federal Credit
Union Act (Chapter 14 (commencing with Section 1751) of Title 12 of
the United States Code) from providing information to an employer
when the employer is ordinarily and necessarily entitled to receive
such information because he is an employee, officer, committee
member, or agent of such credit union.


CIVIL CODE
SECTION 1788.10-1788.17

1788.10. No debt collector shall collect or attempt to collect a
consumer debt by means of the following conduct:
(a) The use, or threat of use, of physical force or violence or
any criminal means to cause harm to the person, or the reputation, or
the property of any person;
(b) The threat that the failure to pay a consumer debt will result
in an accusation that the debtor has committed a crime where such
accusation, if made, would be false;
(c) The communication of, or threat to communicate to any person
the fact that a debtor has engaged in conduct, other than the failure
to pay a consumer debt, which the debt collector knows or has reason
to believe will defame the debtor;
(d) The threat to the debtor to sell or assign to another person
the obligation of the debtor to pay a consumer debt, with an
accompanying false representation that the result of such sale or
assignment would be that the debtor would lose any defense to the
consumer debt;
(e) The threat to any person that nonpayment of the consumer debt
may result in the arrest of the debtor or the seizure, garnishment,
attachment or sale of any property or the garnishment or attachment
of wages of the debtor, unless such action is in fact contemplated by
the debt collector and permitted by the law; or
(f) The threat to take any action against the debtor which is
prohibited by this title.



1788.11. No debt collector shall collect or attempt to collect a
consumer debt by means of the following practices:
(a) Using obscene or profane language;
(b) Placing telephone calls without disclosure of the caller's
identity, provided that an employee of a licensed collection agency
may identify himself by using his registered alias name as long as he
correctly identifies the agency he represents;
(c) Causing expense to any person for long distance telephone
calls, telegram fees or charges for other similar communications, by
misrepresenting to such person the purpose of such telephone call,
telegram or similar communication;
(d) Causing a telephone to ring repeatedly or continuously to
annoy the person called; or
(e) Communicating, by telephone or in person, with the debtor with
such frequency as to be unreasonable and to constitute an harassment
to the debtor under the circumstances.



1788.12. No debt collector shall collect or attempt to collect a
consumer debt by means of the following practices:
(a) Communicating with the debtor's employer regarding the debtor'
s consumer debt unless such a communication is necessary to the
collection of the debt, or unless the debtor or his attorney has
consented in writing to such communication. A communication is
necessary to the collection of the debt only if it is made for the
purposes of verifying the debtor's employment, locating the debtor,
or effecting garnishment, after judgment, of the debtor's wages, or
in the case of a medical debt for the purpose of discovering the
existence of medical insurance. Any such communication, other than a
communication in the case of a medical debt by a health care
provider or its agent for the purpose of discovering the existence of
medical insurance, shall be in writing unless such written
communication receives no response within 15 days and shall be made
only as many times as is necessary to the collection of the debt.
Communications to a debtor's employer regarding a debt shall not
contain language that would be improper if the communication were
made to the debtor. One communication solely for the purpose of
verifying the debtor's employment may be oral without prior written
contact.
(b) Communicating information regarding a consumer debt to any
member of the debtor's family, other than the debtor's spouse or the
parents or guardians of the debtor who is either a minor or who
resides in the same household with such parent or guardian, prior to
obtaining a judgment against the debtor, except where the purpose of
the communication is to locate the debtor, or where the debtor or his
attorney has consented in writing to such communication;
(c) Communicating to any person any list of debtors which
discloses the nature or existence of a consumer debt, commonly known
as "deadbeat lists", or advertising any consumer debt for sale, by
naming the debtor; or
(d) Communicating with the debtor by means of a written
communication that displays or conveys any information about the
consumer debt or the debtor other than the name, address and
telephone number of the debtor and the debt collector and which is
intended both to be seen by any other person and also to embarrass
the debtor.
(e) Notwithstanding the foregoing provisions of this section, the
disclosure, publication or communication by a debt collector of
information relating to a consumer debt or the debtor to a consumer
reporting agency or to any other person reasonably believed to have a
legitimate business need for such information shall not be deemed to
violate this title.


1788.13. No debt collector shall collect or attempt to collect a
consumer debt by means of the following practices:
(a) Any communication with the debtor other than in the name
either of the debt collector or the person on whose behalf the debt
collector is acting;
(b) Any false representation that any person is an attorney or
counselor at law;
(c) Any communication with a debtor in the name of an attorney or
counselor at law or upon stationery or like written instruments
bearing the name of the attorney or counselor at law, unless such
communication is by an attorney or counselor at law or shall have
been approved or authorized by such attorney or counselor at law;
(d) The representation that any debt collector is vouched for,
bonded by, affiliated with, or is an instrumentality, agent or
official of any federal, state or local government or any agency of
federal, state or local government, unless the collector is actually
employed by the particular governmental agency in question and is
acting on behalf of such agency in the debt collection matter;
(e) The false representation that the consumer debt may be
increased by the addition of attorney's fees, investigation fees,
service fees, finance charges, or other charges if, in fact, such
fees or charges may not legally be added to the existing obligation;
(f) The false representation that information concerning a debtor'
s failure or alleged failure to pay a consumer debt has been or is
about to be referred to a consumer reporting agency;
(g) The false representation that a debt collector is a consumer
reporting agency;
(h) The false representation that collection letters, notices or
other printed forms are being sent by or on behalf of a claim,
credit, audit or legal department;
(i) The false representation of the true nature of the business or
services being rendered by the debt collector;
(j) The false representation that a legal proceeding has been, is
about to be, or will be instituted unless payment of a consumer debt
is made;
(k) The false representation that a consumer debt has been, is
about to be, or will be sold, assigned, or referred to a debt
collector for collection; or
(l) Any communication by a licensed collection agency to a debtor
demanding money unless the claim is actually assigned to the
collection agency.



1788.14. No debt collector shall collect or attempt to collect a
consumer debt by means of the following practices:
(a) Obtaining an affirmation from a debtor who has been
adjudicated a bankrupt, of a consumer debt which has been discharged
in such bankruptcy, without clearly and conspicuously disclosing to
the debtor, in writing, at the time such affirmation is sought, the
fact that the debtor is not legally obligated to make such
affirmation;
(b) Collecting or attempting to collect from the debtor the whole
or any part of the debt collector's fee or charge for services
rendered, or other expense incurred by the debt collector in the
collection of the consumer debt, except as permitted by law; or
(c) Initiating communications, other than statements of account,
with the debtor with regard to the consumer debt, when the debt
collector has been previously notified in writing by the debtor's
attorney that the debtor is represented by such attorney with respect
to the consumer debt and such notice includes the attorney's name
and address and a request by such attorney that all communications
regarding the consumer debt be addressed to such attorney, unless the
attorney fails to answer correspondence, return telephone calls, or
discuss the obligation in question. This subdivision shall not apply
where prior approval has been obtained from the debtor's attorney, or
where the communication is a response in the ordinary course of
business to a debtor's inquiry.


1788.15. (a) No debt collector shall collect or attempt to collect
a consumer debt by means of judicial proceedings when the debt
collector knows that service of process, where essential to
jurisdiction over the debtor or his property, has not been legally
effected.
(b) No debt collector shall collect or attempt to collect a
consumer debt, other than one reduced to judgment, by means of
judicial proceedings in a county other than the county in which the
debtor has incurred the consumer debt or the county in which the
debtor resides at the time such proceedings are instituted, or
resided at the time the debt was incurred.


1788.16. It is unlawful, with respect to attempted collection of a
consumer debt, for a debt collector, creditor, or an attorney, to
send a communication which simulates legal or judicial process or
which gives the appearance of being authorized, issued, or approved
by a governmental agency or attorney when it is not. Any violation
of the provisions of this section is a misdemeanor punishable by
imprisonment in the county jail not exceeding six months, or by a
fine not exceeding two thousand five hundred dollars ($2,500) or by
both.


1788.17. Notwithstanding any other provision of this title, every
debt collector collecting or attempting to collect a consumer debt
shall comply with the provisions of Sections 1692b to 1692j,
inclusive, of, and shall be subject to the remedies in Section 1692k
of, Title 15 of the United States Code. However, subsection (11) of
Section 1692e and Section 1692g shall not apply to any person
specified in paragraphs (A) and (B) of subsection (6) of Section
1692a of Title 15 of the United States Code or that person's
principal. The references to federal codes in this section refer to
those codes as they read January 1, 2001.


CIVIL CODE
SECTION 1788.20-1788.22

1788.20. In connection with any request or application for consumer
credit, no person shall:
(a) Request or apply for such credit at a time when such person
knows there is no reasonable probability of such person's being able,
or such person then lacks the intention, to pay the obligation
created thereby in accordance with the terms and conditions of the
credit extension; or
(b) Knowingly submit false or inaccurate information or willfully
conceal adverse information bearing upon such person's credit
worthiness, credit standing, or credit capacity.


1788.21. (a) In connection with any consumer credit existing or
requested to be extended to a person, such person shall within a
reasonable time notify the creditor or prospective creditor of any
change in such person's name, address, or employment.
(b) Each responsibility set forth in subdivision (a) shall apply
only if and after the creditor clearly and conspicuously in writing
discloses such responsibility to such person.


1788.22. (a) In connection with any consumer credit extended to a
person under an account:
(1) No such person shall attempt to consummate any consumer credit
transaction thereunder knowing that credit privileges under the
account have been terminated or suspended.
(2) Each such person shall notify the creditor by telephone,
telegraph, letter, or any other reasonable means that an unauthorized
use of the account has occurred or may occur as the result of loss
or theft of a credit card, or other instrument identifying the
account, within a reasonable time after such person's discovery
thereof, and shall reasonably assist the creditor in determining the
facts and circumstances relating to any unauthorized use of the
account.
(b) Each responsibility set forth in subdivision (a) shall apply
only if and after the creditor clearly and conspicuously in writing
discloses such responsibility to such person.


CIVIL CODE
SECTION 1788.30-1788.32

1788.30. (a) Any debt collector who violates this title with
respect to any debtor shall be liable to that debtor only in an
individual action, and his liability therein to that debtor shall be
in an amount equal to the sum of any actual damages sustained by the
debtor as a result of the violation.
(b) Any debt collector who willfully and knowingly violates this
title with respect to any debtor shall, in addition to actual damages
sustained by the debtor as a result of the violation, also be liable
to the debtor only in an individual action, and his additional
liability therein to that debtor shall be for a penalty in such
amount as the court may allow, which shall not be less than one
hundred dollars ($100) nor greater than one thousand dollars
($1,000).
(c) In the case of any action to enforce any liability under this
title, the prevailing party shall be entitled to costs of the action.
Reasonable attorney's fees, which shall be based on time necessarily
expended to enforce the liability, shall be awarded to a prevailing
debtor; reasonable attorney's fees may be awarded to a prevailing
creditor upon a finding by the court that the debtor's prosecution or
defense of the action was not in good faith.
(d) A debt collector shall have no civil liability under this
title if, within 15 days either after discovering a violation which
is able to be cured, or after the receipt of a written notice of such
violation, the debt collector notifies the debtor of the violation,
and makes whatever adjustments or corrections are necessary to cure
the violation with respect to the debtor.
(e) A debt collector shall have no civil liability to which such
debt collector might otherwise be subject for a violation of this
title, if the debt collector shows by a preponderance of evidence
that the violation was not intentional and resulted notwithstanding
the maintenance of procedures reasonably adapted to avoid any such
violation.
(f) Any action under this section may be brought in any
appropriate court of competent jurisdiction in an individual capacity
only, within one year from the date of the occurrence of the
violation.
(g) Any intentional violation of the provisions of this title by
the debtor may be raised as a defense by the debt collector, if such
violation is pertinent or relevant to any claim or action brought
against the debt collector by or on behalf of the debtor.


1788.31. If any provision of this title, or the application thereof
to any person or circumstances, is held invalid, the remaining
provisions of this title, or the application of such provisions to
other persons or circumstances, shall not be affected thereby.


1788.32. The remedies provided herein are intended to be cumulative
and are in addition to any other procedures, rights, or remedies
under any other provision of law. The enactment of this title shall
not supersede existing administrative regulations of the Director of
Consumer Affairs except to the extent that those regulations are
inconsistent with the provisions of this title.
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Hairford v. Centurytel, Inc.
856 So.2d 139
La.App. 3 Cir.,2003.
October 01, 2003

Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.


**1 DECUIR, Judge.

Jimmie Hairford filed suit against CenturyTel, Inc. and CenturyTel of Central Louisiana, L.L.C. seeking damages for mental anguish suffered as a result of a dispute over his telephone bill. At the conclusion of a bench trial, Hairford was awarded damages in the amount of $4,500.00. CenturyTel filed the instant appeal and, for the following reasons, we affirm.


CenturyTel provided telephone service to Hairford for many years. In 1991, Hairford authorized CenturyTel to draft his checking account with Cottonport Bank for payment of his monthly bill. In March of 2002, Hairford received a letter from CenturyTel addressed to “Connie Sheehan Hairford,â€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Booty v. American Finance Corp. of Shreveport
224 So.2d 512
La.App., 1969.
May 27, 1969

Before AYRES, BOLIN and PRICE, JJ.


PRICE, Judge.

Walter T. Booty brought this action in tort against American Finance Corporation, Herb Epps and J. R. King. Booty alleged defendants had invaded his right to privacy by using unreasonable and oppressive methods in attempting to collect an indebtedness owed by plaintiff.


During the year 1962 plaintiff filed a voluntary petition in bankruptcy and was granted a certificate of discharge by the Federal District Court, which included an obligation owing American Finance Corporation in the amount of $991.00. Subsequent to the discharge plaintiff began paying on the previous obligation to American, had on December 17, 1965, executed a promissory note in favor of American for the remaining balance of $700.58. This note was payable in monthly installments of $25.00 and bore interest from maturity only. Plaintiff paid on the note until the balance was reduced to the sum of $444.43. No payments were made on the note for a period of approximately sixteen months and on December 6, 1967, American Finance Corporation directed a letter to plaintiff's employer, Commonwealth Life & Accident Insurance Company, at their home address in St. Louis, Missouri, advising them of the status of plaintiff's account with American. The letter, signed by Herb Epps as manager, did not contain any insulting or defamatory remarks about plaintiff but merely advised Commonwealth of the facts of the situation and expressed appreciation for any assistance they would give in the matter.


During the months of January and February of 1968, the defendants proceeded to send a number of letters to plaintiff's employer, ostensibly for the purpose of keeping the employer informed of the status of plaintiff's account. Other than the referral to the date of the previous letter, all of the series of letters were worded identically and read as follows:


‘AMERICAN FINANCE CORPORATION


January 22, 1968


‘Commonwealth Insurance Company


3500 Lindell Street


St. Louis, Missouri


Gentlemen:


I hesitate to bother you again with respect to the account of your employee, W. T. Booty, but I feel you should know its present status .


Since the date of our last letter to you December 1967, we have received the following payment on this account:


December 11, 1967-Amt. $25.00.


'The present balance still amounts to $419.43 and the account is still very delinquent.


We will appreciate any further help you may render in this matter.


Sincerely yours,


Herb Epps


Manager'


*514 Prior to the letters directed to the Home Office of Commonwealth, several letters were sent to the branch office in Shreveport, Louisiana. The manager of the Shreveport office, Don England, received several telephone calls from persons identifying themselves as connected with American Finance, soliciting his help in the collection of Booty's account. A carbon copy of a letter directed to Booty by an attorney, threatening the filing of suit, was also forwarded to the Home Office of Commonwealth on February 2, 1968. Instructions were received by the Shreveport office of Commonwealth from the Home Office to discuss the matter with Booty, to require him to take care of the matter and prevent any further letters from being sent to his employer.


Booty was told if the letters did not stop, he would possibly lose his job. During this same period of time Epps, King and other representatives of American Finance, contacted Mr. or Mrs. Booty, demanding payment of the account in full. Plaintiff advised Herb Epps, who was manager of American Finance at that time, that the letters to his employer were causing him to be in jeopardy of losing his job and requested that they desist from contacting his employer any further. Some of the letters were directed after this request was made.


On March 28, 1968, plaintiff filed suit against the defendants, asking that he be granted a judgment against them, in solido, for the sum of $278,344.00, itemizing his damages as follows:


A.
For physical pain,

suffering and mental anguish
$12,500.00

B.
For embarrassment and

humiliation
12,500.00

C.
For invasion of his right

of privacy
12,500.00

D.
Punitive damages
12,500.00

E.
Loss of earnings, past and

future
228,344.00

$278,344.00




Defendants filed an answer, denying liability, and American Finance filed a reconventional demand asking judgment be rendered against plaintiff in the sum of $419.43 for the balance due on the note executed in their favor by plaintiff on December 17, 1965, together with 8% Interest from December 11, 1967, and 25% On principal and interest as attorney's fees.


Plaintiff answered the reconventional demand, admitted the execution of the note, but denied that it was given for a valuable consideration. At the time of trial, plaintiff voluntarily dismissed the claim for loss of wages in the amount of $228,344.00, and the trial judge ordered the claim for punitive damages in the amount of $12,500.00 stricken from the record.


Trial on the merits was before a jury, who rendered a verdict in favor of plaintiff on the original demand in the amount of $20,541.75, and found for defendant in the reconventional demand as prayed for. On a motion for remittitur by defendants, the trial judge ordered the plaintiff to remit all of said judgment in excess of $7,500.00, or, in the alternative, a new trial would be ordered. Plaintiff, under protest, agreed to the remittitur and judgment was signed by the trial judge in favor of plaintiff on the main demand for $7,500.00, and the defendant, American Finance Corporation, plaintiff in reconvention, for the sum of $419.43, plus interest and attorney's fees.


A suspensive appeal was perfected by defendants who assigned as error the finding by the jury and trial judge that plaintiff was entitled to any judgment since the defendants were guilty of nothing more than an effort to collect a legitimate indebtedness owing by plaintiff and alternatively, in the event plaintiff is entitled to any award, the amount awarded is manifestly excessive and not commensurate to any damages proven by plaintiff.


There is no merit to the contention of the plaintiff, defendant in reconvention, that the note sued on, signed by him on December 17, 1965, is not a binding obligation*515 because of a lack of consideration. Article 1759(2) of the Louisiana Civil Code reads as follows:


‘Art. 1759. Although natural obligations can not be enforced by action, they have the following effect (effects):


‘2. A natural obligation is a sufficient consideration for a new contract.'


[1] A mere acknowledgment of an indebtedness previously discharged in bankruptcy is not an enforceable obligation. However, a definite, direct and specific promise to pay a previously discharged indebtedness, in a definite manner, has been held to be enforceable. Securities Finance Company v. Marbury, La.App., 180 So.2d 737 (1st Cir., 1965), and other authorities cited therein.


[2] We, therefore, find that the execution of the note by Booty, payable in a specified manner, is a legally enforceable obligation, the consideration therefor being the previous indebtedness owed to American Finance. Although he had been legally executed from paying this debt by the bankruptcy procedure, the moral or natural obligation remained, and, having elected to revive it by signing the note, he is once again legally responsible for the balance due.


[3] As a general rule, the communication by a creditor to the employer of his debtor that the employee has failed to pay an indebtedness, does not constitute an invasion of the employee's privacy which is actionable. The courts of this State, and elsewhere, have attempted to balance the interest of the creditor in collecting his debt against the right of privacy of the debtor as to his own affairs. Where the methods used by the creditor have been classed as unreasonable and of such a nature as to be coercive, then the courts of Louisiana have held that the conduct of the creditor is an actionable tort under Article 2315 of the Louisiana Civil Code and compensatory damages may be allowed for mental anguish and suffering not accompanied by physical injury. Graham v. Western Union Telegraph Co., 109 La. 1069, 34 So. 91; Tuyes v. Chambers, 144 La. 723, 81 So. 265; Quina v. Roberts et al., La.App., 16 So.2d 558 (Orleans, 1944); Pack v. Wise, La.App., 155 So.2d 909 (3d Cir., 1963).


For a very complete discussion of the problem of invasion of the privacy of a debtor by a creditor's attempt to collect a debt through communications with the debtor's employer, we refer the reader to the case of Pack v. Wise, supra, and the later cases of Boudreaux v. Allstate Finance Corporation, La.App., 217 So.2d 439 (1st Cir., 1968); and Passman v. Commercial Credit Plan of Hammond, Inc., La.App., 220 So.2d 759 (1st Cir., 1969).


In the latest case on the question, Passman v. Commercial Credit Plan of Hammond, Inc., supra, our breathren of the First Circuit Court of Appeal, in finding the conduct of the creditor not actionable, distinguished it from the Pack v. Wise case as follows:


‘In the Pack case, we believe that the Court clearly held that the defendant was unreasonable in pursuing the payment of the alleged indebtedness. Such is not the case in the suit before us. Here the employer was merely informed that the creditor had a judgment against the employee and that the creditor would take garnishment proceedings if the matter was not settled. No threats were made either by the creditor or the employer to his employee, and certainly no damages were caused the employee; who, at the time of the suit was still working for the same employer and had received a substantial raise in salary. We, therefore, feel that the invasion of privacy in the present suit was not an actionable one.’ 220 So.2d 758, 763.


In the case of Quina v. Roberts et al., supra, the court reviewed the action of a creditor in sending a letter to an employer *516 informing him of the employee's indebtedness and enclosed an official appearing form which was styled ‘Final Notice before Suit.’ The court found this to be unreasonable in the following language:


‘But whatever be the sound rule at common law respecting the libelous character of publications of this kind, it is manifest to us that the issuance of the letter and enclosure in this case, for the obvious purpose and design of forcing a payment by plaintiff, constituted a tort under our law and that plaintiff is entitled to redress even though he was unable to prove special damage. And it makes no difference whether the publication is considered to be libelous or not. It is well settled, even in the common law states, that damages will be allowed for mental anguish suffered by a debtor in cases where the creditor has pursued unseasonable methods in attempting to make collection of his claim. See 33 American Jurisprudence, verbo ‘Libel and Slander’, section 61, pages 79 and 80, 41 American Jurisprudence, verbo ‘Privacy’, section 30, page 947, and a comprehensive note contained in 91 A.L.R., beginning at page 1495, entitled ‘Mental Anguish due to Collection Methods.’ These authorities, which are supported by cases from several states, reveal that, while it is doubtful that writings like the one in the instant case are libelous, yet they are classed as torts for which recovery may be had without proof of particular damage. In some cases, relief has been granted on the ground that the publications were libelous and in others on the ground that there had been an invasion of the plaintiff's right of privacy.'


In all cases in this State in which the conduct has been held actionable and redress allowed, the courts have found that the means employed constituted coercion. Each case, of course, must be considered on its own facts to determine whether coercion exists.


[4] In the case under review, the repetitious nature of the communications could only have been intended for one purpose, to attempt to cause the plaintiff to be fearful of losing his employment. As we understand the evidence, no less than ten letters were sent within a brief period of approximately three months, besides the telephone communications with the Shreveport branch manager. As pointed out in the Quina v. Roberts case, supra, it is not necessary that the communications be slanderous or libelous, if they are unreasonable and intended to coerce.


Plaintiff testified that in a telephone conversation with Herb Epps, he requested the defendants to quit writing the letters to his employer, or otherwise he would lose his job. He further testified that Epps said that if he didn't pay the entire balance of the note he would run plaintiff out of town. After stating that he did not run easy, Booty testified Epps clarified his statement to mean that he would see that he was fired from every job until he left Shreveport.


On cross-examination, when questioned about this conversation, the witness, Epps, was evasive in his answers and did not positively deny having made this threat.


[5] We believe, as did the trial judge and jury, that the purpose and design of defendant in sending the series of letters was to exert coercion on plaintiff to force him to pay the entire balance of his indebtedness or possibly suffer the loss of his job.


[6] Although the plaintiff is entitled to some redress, the evidence in the record does not disclose any special damages sustained by him . In the cases of Quina v. Roberts et al., supra, and Boudreaux v. Allstate Finance Corporation, supra, a nominal award of damages was allowed, although no special damages were proven. We feel that an award of $1,000.00 would be adequate under the circumstances of this case.


We wish to make it abundantly clear that we do not intend to infer that a creditor may not communicate with the employer of *517 his debtor without subjecting himself to an action in damages. Each case must be judged on its own facts as to whether the communication was reasonable and not calculated to be coercive.


For the foregoing reasons the judgment appealed from is amended to reduce the amount awarded to plaintiff to the sum of $1,000.00, and as amended is affirmed.


All costs of this appeal are to be paid by appellant, Walter Truitt Booty.

La.App., 1969.
BOOTY v. AMERICAN FINANCE CORP. OF SHREVEPORT
224 So.2d 512
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Everett v. Community Credit Co. of Scenic
224 So.2d 145
La.App., 1969.
May 26, 1969

Before LANDRY, SARTAIN and MARCUS, JJ.


MARCUS, Judge.

Plaintiff-Appellant, Mervyn E. Everett, individually, and in his capacity as administrator of the estate of his wife, Eva Pitts Everett, has taken this appeal from a judgment of the 19th Judicial District Court, Parish of East Baton Rouge, rendered on July 2, 1968 and signed on July 17, 1968, in favor of defendants-appellees, Community Credit Company of Scenic, Inc., and Alan Corporation of Baton Rouge, (hereinafter sometimes called ‘finance companies') rejecting the plaintiff's demands and dismissing the suit at plaintiff's costs. Mervyn E. Everett and Eva Pitts Everett were delinquent on loans which they had made with defendant finance companies. Attempts by employees of defendants to collect these debts resulted in the instant litigation. Initially, suit was brought on September 17, 1965 by Eva Pitts Everett against defendants in which it was alleged that she sustained a heart attack and resulting poor health due to the harassing collection activities of the defendants' agents. Specifically, she alleged that her heart attack was precipitated by an incident occurring on September 18, 1964, involving one of defendants' representatives, Gordon Lloyd.


The defendants filed a peremptory exception of one year prescription to plaintiff's petition. The defendants contended that if any incident had in fact occurred, which incident was specifically denied, it had actually transpired on September 14, 1964, more than one year prior to the filing of the suit by plaintiff. This exception was referred to the trial on the merits. Thereafter, defendants filed an answer denying the allegations of the plaintiff's petition and reserving all rights under their peremptory exception of prescription previously filed.


The plaintiff's petition was amended on May 9, 1967 to include a claim on behalf of Mervyn E. Everett, as representative of the community of acquets and gains, for past and future medical expenses incurred by his wife, Eva Pitts Everett. On September 2, 1967, before trial on the merits was completed, Eva Pitts Everett died, and a supplemental petition was filed on December 27, 1967 in which Mervyn E. Everett was substituted as administrator of her estate. The supplemental petition sought additional damages for Mervyn E. Everett for loss of affection due to his wife's death and reimbursement for her funeral expenses. Defendants again denied all allegations of the petition and reurged the exception of prescription.


[1] The trial judge, at the conclusion of the trial and upon hearing all the evidence, and for written reasons assigned, held that the incident involving Eva Pitts Everett and the defendants' representative, Gordon Lloyd, had occurred on September 18, 1964, and overruled the defendants' plea of prescription. No useful purpose would be served by either reviewing in detail the testimony on this point or setting forth the trial judge's reasons for his conclusions. It will suffice to say that we concur in his findings and affirm the overruling*147 of defendants' exception of prescription.


The next question for our determination is whether the trial court was correct in its decision on the merits.


Plaintiff in substance contends that his deceased wife, Eva Pitts Everett, was harassed by representatives of defendant finance companies in their efforts to collect a past due indebtedness owed by them to said companies. The only evidence presented on this point was the testimony of Eva Pitts Everett, Mervyn E. Everett, and plaintiff's twelve year old son, Mervyn Henry Everett, which testimony was so vague and indefinite that this Court is unable to accept the facts to have been proven by a preponderance of the evidence. The main thrust of plaintiff's contention involves the incident which occurred on September 18, 1964, in which it is alleged that a representative of defendant finance companies entered the home where his wife was ill in bed, despite the protest of his twelve year old son, and invaded Mrs. Everett's bedroom and demanded information concerning Mr. Everett's whereabouts. It is further contended that despite Mrs. Everett's pleas for him to leave, the said representative remained and continued to interrogate her, and only after a prolonged period of approximately one-half hour did he finally leave. It is further alleged that as a result of this episode, Mrs. Everett became emotionally upset which resulted in a heart attack and on that night was brought to Our Lady of the Lake Hospital. The next day she was taken to Lallie Kemp Charity Hospital where her condition was diagnosed as an acute posterior myocardial infarction. Mrs. Everett ultimately died as a result of this condition some three years later on September 2, 1967. The plaintiff's case concerning this element of the action was the deposition of Mrs. Everett, supported by the testimony of her twelve year old stepson, Mervyn Henry Everett, her sister-in-law, Mrs. Madeline Murphy, and her niece, Miss Robin Nell Worthington. Mervyn Henry Everett testified that about three o'clock in the afternoon on September 18, 1964, he was at home with his mother. He asserted that a ‘blond-headed guy’ who worked for Community Credit came by to talk to his mother who was sleeping in her bedroom; that this man entered the house and went into his mother's bedroom where he remained for about twenty minutes, despite her request that he leave . He further testified that he remained in the bedroom with the visitor and his mother during the entire incident and at no time did the visitor raise his voice, intimidate or threaten his mother. Apparently, the only notable statement by the visitor to Mrs. Everett was that ‘he didn't believe her.'


Mrs. Madeline Murphy and her daughter, Miss Robin Nell Worthington were in the kitchen at the Everett residence on the afternoon when the representative from the defendant finance companies arrived. They asserted that Mrs. Everett was not feeling well and was lying down in her bedroom which was located in close proximity to the kitchen. Mrs. Murphy testified that she heard the man arrive and then proceed into the bedroom despite the fact that he was told that Mrs. Everett was lying down and not feeling well. She further testified that he remained for a period of approximately 15 to 30 minutes. They both indicated that they did not hear the conversation except for the request for him to leave. They admitted that they did not hear the visitor raise his voice, intimidate or threaten Mrs. Everett in any manner and that he talked in normal tones during his entire stay. They further indicated that while Mrs . Everett was upset when the visitor left, she calmed down shortly thereafter and was asleep when they left a short while later.


The defendants' case in chief consisted of the testimony of Gordon Lloyd, taken by deposition, and Edward David Sledge. Gordon Lloyd asserted that he was employed from May, 1964 to February, 1965 as a collector for defendant finance companies. He testified that the first day on *148 which he worked the collection of the Everett account was September 11, 1964. Referring to ledger cards, which were introduced into the evidence, he stated that he visited the Everett house on three occasions during the latter part of September, 1964; however, he only recalled going into the house on one of these occasions. As previously indicated, we concluded that the incident complained of occurred on September 18, 1964; therefore, this was apparently the day on which he went into the Everett house. He testified that he was given permission by Mrs. Everett's stepson to enter their premises. Upon entering Mrs. Everett's bedroom, he noted that she was in bed. He testified that he did not harass, threaten or intimidate her. He further testified that he remained only fifteen minutes and upon being requested to leave he complied. He further stated that Mrs. Everett did not appear to be in any distress on his departure.


Edward David Sledge testified that from November, 1963 until February, 1966, he was employed by defendants. He indicated that prior to September 10, 1964, he had worked the account owed by Mervyn E. Everett and after December, 1964, he resumed working the account. He asserted that only on one occasion had he gone to the Everett residence and when asked to leave by Mervyn E. Everett he immediately did so. He testified that he had never entered the Everett home.


[2] The trial judge in finding that defendants had not breached any legal duty or obligation owed to Mrs. Everett expressed his conclusions as follows:


‘Frankly, the Court cannot single out Mr. Lloyd's actions in this matter for condemnation. While admittedly the red carpet was not rolled out for him, the Court believes that Mr. Lloyd was granted access to Mrs. Everett's room for the purpose of seeing her. There is no evidence whatsoever from Mrs. Everett or any witness which indicates he used loud or abusive language towards Mrs. Everett or that his conduct was offensive in any manner. If he was guilty of any transgression, it was that he remained longer than necessary considering Mrs. Everett's obvious illness.'


We concur in these findings by the trial judge.


Our courts have long recognized the right of a debtor to be free from unreasonable coercion and unreasonable violation of the right to privacy in personal affairs. In the recent case of Boudreaux v. Allstate Finance Corporation, 217 So.2d 439, 444, (La.App.1st Cir., 1969), this Court stated:


‘Irrespective of whether the right to freedom from excessive unreasonable, deliberately induced emotional distress is predicated upon invasion of privacy or the closely allied tort of intentional infliction of emotional distress, see Wex S. Malone, Louisiana Law Review, Volume XXV, efforts to coerce payment of debt, Page 341, is actionable under our laws when the creditors, in an attempt to collect a debt justly due, unreasonably coerces the debtor or seriously abridges the obligor's right to privacy in his personal affairs. Tuyes v. Chambers, 144 La. 723, 81 So. 265; Quina v. Roberts, La.App., 16 So.2d 558; Pack v. Wise, La.App., 155 So.2d 909 .'


In that case, the Court recognized that a creditor may indulge in reasonable means to collect his accounts and that repeated requests for payment do not per se constitute harassment; nevertheless, the defendant in that case clearly exceeded the bounds of reason. In the instant case, the main thrust of plaintiff's case on harassment and invasion of privacy was the intrusion of Mr. Lloyd into the residence of plaintiff over the objection of his son. In view of our concurrence in the findings of the trial court that ‘while admittedly the red carpet was not rolled out for him, the Court believes that Mr. Lloyd was granted access to Mrs. Everett's room for the purpose of seeing her,‘ we find no trespass or unlawful entry of the plaintiff's premises. *149 Furthermore, we do not find that plaintiff has proven by the preponderance of the evidence any unreasonable coercion, harassment, or abridgment of Mrs. Everett's right to privacy in her personal affairs. Accordingly, we conclude that defendants-appellees did not breach any of the legal duties or obligations owed to Mrs. Everett. The facts of the Boudreaux case are clearly distinguishable from the case at bar.


[3] In view of these conclusions, we find no need to discuss the cause-in-fact of plaintiff's alleged damages. However, assuming for the sake of argument that the acts of defendants-appellees' agents constituted a breach of some legal duty owed Eva Pitts Everett, we conclude after a careful review of the record that the acts of defendants-appellees were not a cause-in-fact of the injuries claimed.


For the foregoing reasons, we affirm the judgment of the lower court and assess the costs of this appeal to plaintiff-appellant.


Affirmed.

La.App., 1969.
EVERETT v. COMMUNITY CREDIT COMPANY OF SCENIC
224 So.2d 145
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Post by David A. Szwak »

Boudreaux v. Allstate Finance Corp.
217 So.2d 439
La.App., 1968.
December 16, 1968

Before LANDRY, REID and SARTAIN, JJ.


LANDRY, Judge.

These consolidated matters involve an action in which plaintiffs, Mr. and Mrs. Adam J. Boudreaux, obtained judgment by default in the Eighteenth Judicial District Court, Iberville Parish, against defendant, Allstate Finance Corporation (Allstate), in the sum of $1,800.00 each for alleged tortious conduct purportedly designed to harass and coerce plaintiffs into paying a debt admittedly due Allstate. Before an appeal was taken from said judgments by Allstate, plaintiffs instituted proceedings in the Nineteenth Judicial District Court, East Baton Rouge Parish, to enforce their awards by means of a writ of fieri facias pursuant to which certain property belonging to defendant Allstate was seized. Pending said enforcment proceeding, however, Allstate suspensively appealed and on the strength thereof obtained an injunction in the Nineteenth Judicial District Court prohibiting all further attempts of plaintiffs to enforce their judgments. From this latter decree plaintiffs have appealed praying for dissolution of the injunction, attorney's fees and damages for wrongful interference with the execution of their judgments.


We are in accord with the finding of the Eighteenth Judicial District Court that plaintiffs are entitled to damages but find the amounts awarded are excessive and reduce same to the sum of $500.00 for each plaintiff.



DEFENDANT'S APPEAL FROM THE JUDGMENT RENDERED IN THE EIGHTEENTH JUDICIAL DISTRICT COURT, IBERVILLE PARISH.


Plaintiff's action, filed June 20, 1967, named Allstate Finance Corporation defendant on whom process was served the following day through its registered agent, Ray Loflin, Jr. Preliminary default was entered against defendant on November 2, 1967, and confirmed December 12, 1967. In substance plaintiffs' petition alleges that during the period April to June, 1967, Allstate, through its agents and employees, embarked upon a calculated plan of harassment designed to enforce collection of the sum of $185.000 owned by plaintiffs to defendant, together with interest, which account was admittedly in arrears. The alleged modus operandi indulged in by defendant is reputed to consist of repeated telephone calls to the homes of neighbors requested to call plaintiffs to the telephone as plaintiffs had no phone of their own. Plaintiffs further aver defendants made defamatory and insulting remarks to plaintiffs' neighbors regarding plaintiffs and used insulting language to Mrs. Boudreaux *442 in demanding payment of the loan. Said activity, the petition urges, has caused plaintiffs mental pain and anguish, humiliation, embarrassment as well as damage to their characters and reputations.


Upon confirmation of the default in plaintiff's favor, the evidence adduced was not transcribed. However, an agreed narrative of fact filed in lieu of the recorded testimony indicates plaintiffs were obligated to Allstate on a promissory note in the sum of $185.00, with interest, payable in 24 monthly installments, which indebtedness was in arrears because Mr. Boudreaux was unemployed at the time. Despite his enforced idleness, Mr. Boudreaux had indicated on several occasions, in response to Allstate's collection efforts, that the obligation would be liquidated as soon as circumstances permitted. The extent of Allstate's initial tolerance is not entirely clear from the narrative. It is evident, however, that collection efforts were greatly intensified on defendant's part . It is apparent that defendant employed questionable tactics against plaintiffs consisting primarily of a concerted and calculated plan to annoy, embarrass and humiliate plaintiffs by calling plaintiffs at the homes of neighbors who allowed plaintiffs to use their telephones as plaintiffs had no phone. It is shown that defendant's employees called the neighbors frequently and at deliberately chosen inconvenient hours such as at night and during inclement weather. It further appears that when plaintiffs responded to these measures, plaintiffs were compelled to explain their delinquency in the presence of their neighbors and acquaintances. In addition it appears that on some occasions defendant's employees explained plaintiffs' financial troubles to the neighbors to whose homes the calls were placed and although plaintiffs requested a cessation to this practice, it continued nevertheless. It also appears that on one occasion defendant's agents called at plaintiffs' home and created a most unpleasant situation by using loud and abusive language in plaintiffs' yard in such manner that the conversation could be heard for some distance. Finally, placed of record is a letter received from Allstate which communication contained disparaging remarks concerning Mr. Boudreaux' character and opined that plaintiff would lose the respect of his family because of his delinquency.


Based on the foregoing testimony, the trial court of Iberville Parish rendered judgment in favor of plaintiffs on January 12, 1968, but took the matter under advisement as to the issue of quantum. Subsequently, on January 25, 1968, judgment was signed in open court in favor of plaintiffs in the sum of $1,800.00 each. No notice of judgment was sent defendant. Thereafter, on February 16, 1968, plaintiffs had their judgments made executory in East Baton Rouge Parish and a writ of fieri facias issued. Numerous procedural maneuvers were employed by Allstate to halt execution and when all failed, defendant resorted to obtaining a temporary restraining order which issued on February 21, 1968, and was intermittently extended until March 18, 1968. As the result of a hearing held March 18, 1968, a preliminary injunction issued from the Nineteenth Judicial District Court, East Baton Rouge Parish, on the following day on which defendant's application for a rule nisi was made absolute. In enjoining execution of the judgments, the trial court was of the view the decrees in question might be vulnerable in some respects.


In view of the related history and circumstances, we deem it advisable to consider first:



THE APPEAL OF DEFENDANT ALLSTATE


The issues raised are: (1) There was no valid service on defendant consequently the judgment in favor of plaintiffs is null and void; (2) Plaintiffs' petition states no cause of action; (3) Assuming, arguendo, plaintiffs' petition states a cause of action, the evidence adduced does not make out a case; (4) The trial court improperly allowed*443 evidence not admissible under the pleadings, and (5) Alternatively, the awards are excessive and should be reduced.


Defendant's complaint of improper service is two-fold. First, it is argued plaintiffs filed suit against Allstate Corporation whereas the correct name should have read All State Corporation, therefore, service directed to Allstate Corporation did not constitute notice of the suit to a corporation known as All State Corporation. Alternatively, it is contended that the judgment in favor of plaintiffs was rendered against Allstate whereas the property of a corporation known as Allstate Finance No. 2 Corporation (No. 2) was seized to discharge the obligation. Consequently, according to defendant, since No. 2 was never sued by plaintiffs and no service made on No. 2, which corporation had no knowledge of the action against Allstate, the judgment is null and void as to No. 2.


[1] We note first that on the day plaintiffs instituted suit against Allstate, there was in fact a corporation chartered under the laws of this state bearing the name All State Finance Corporation, one of whose registered agents was Ray Loflin. We note further that an installment payment record booklet issued plaintiffs when the loan was made bears the name Allstate Finance Corporation and not All State Finance Corporation. That plaintiffs designated defendant All State Finance Corporation as Allstate Finance Corporation is a matter of no legal importance. Such a slight alteration of corporate name as combining the words ‘All State’ appearing in the corporate name to ‘Allstate’ does not render the service defective. Process was served on the registered agent then appearing on the public records as such. Such a service was therefore valid and binding on All State Finance Corporation. LSA-C.C. Article 432; Hy-Grade Investment Corporation v. Robillard, La.App., 196 So.2d 558 .


[2] It further appears that on October 17, 1967, the shareholders of A-Second Mortgage Company of Monroe, Inc. and All State No. 3 Corporation, both domiciled in Monroe, Louisiana, and All State Finance Corporation, domiciled in Baton Rouge, Louisiana, authorized merger of said concerns into All State Finance No. 2 Corporation, domiciled in Baton Rouge, Louisiana. Said merger was duly recorded in the office of the Secretary of State on October 26, 1967. That All State was dissolved subsequent to being sued by plaintiffs does not relieve No. 2 of responsibility for the former's obligations under the circumstances. The merger of All State into No. 2 imposed liability upon the latter for all the former's obligations. LSA-R.S . 12:51(E). In view of the foregoing, the issuance of a fi fa against No. 2 was proper.


[3] It appears that on the date of service Loflin, though still Allstate's registered agent, was no longer in Allstate's employ. This, of course, resulted in Allstate not receiving notice of the pending action in Iberville Parish until plaintiffs attempted to execute the default judgment by means of a writ of fieri facias obtained in East Baton Rouge Parish. This circumstance, however, is also a matter of no import. So long as Loflin remained of record as the duly designated agent for service of process, service upon him was binding on the corporation he ostensibly represented. See LSA-R .S. 12:37, as amended by Act 138 of 1954, Section 1. We hold therefore the service was valid and binding upon Allstate and the successor corporation into which it merged.


Nor do we find any merit in the argument that plaintiffs' petition does not state a cause of action. Our courts have long since declared and recognized the right to recovery of damages for the intentional infliction of emotional disturbance. The rule is based on the principle that substantial impairment of individual dignity cannot be countenanced in law. See Nickerson v. Hodges, 146 La. 735, 84 So. 37, 9 A.L.R. 361. In effect our own rule accords with the generally accepted definition of conduct upon which such an action can reasonably *444 be based as set forth as follows in Restatement, Torts Second Section 46:


'One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from it.'


[4] Irrespective of whether the right to freedom from excessive unreasonable, deliberately induced emotional distress is predicated upon invasion of privacy or the closely allied tort of intentional infliction of emotional distress, see Wex S. Malone, Louisiana Law Review, Volume XXV, efforts to coerce payment of debt, Page 341, is actionable under our laws when the creditors, in an attempt to collect a debt justly due, unreasonably coerces the debtor or seriously abridges the obligor's right to privacy in his personal affairs. Tuyes v. Chambers, 144 La. 723, 81 So. 265; Quina v. Roberts, La.App., 16 So.2d 558; Pack v. Wise, La.App., 155 So.2d 909 .


[5] It is settled law that modern tendency is toward a liberal construction of pleadings since technical rules of pleading no longer obtain, the result being that all doubt be resolved in favor of the pleader to the end that substantial justice be achieved. LSA-C.C.P. Articles 854, 865; Cuccia v. Pratt Farnsworth, Inc., La.App., 155 So.2d 41.


[6] Viewed in the light of the foregoing substantive and procedural rules, we conclude plaintiffs' petition states a cause of action. We also find the allegations of the petition, though somewhat loosely drawn, were sufficiently informative and descriptive as to permit reception of the evidence adduced.


[7] We also concur in the evident finding of the trial court that defendant's representatives considerably exceeded the limits of propriety available to a creditor in circumstances of this nature. It appears defendant's repeated and persistent tactics were deliberately intended to ‘shame’ and ‘harass' plaintiffs into paying the obligation. The calculated disclosure of plaintiffs' predicament to neighbors could only result in humiliation and embarrassment flowing from the realization that plaintiffs were being characterized to their neighbors and friends as ‘deadbeats' who did not discharge their lawful obligations. Conceding a creditor may indulge in reasonable means to collect his accounts and that repeated requests for payment do not per se constitute harassment, nevertheless defendant herein clearly exceeded the bounds of reason which are to be observed in such cases.


[8] On the question of quantum, we find the instant case analogous to but not as aggravated as the circumstances involved in Tuyes v. Chambers, 144 La. 723, 81 So. 265 (1919), wherein the sum of $500.00 was awarded. Considering the devaluated purchasing power of the dollar and the harsher nature of the conduct involved in the Tuyes case, supra, we believe an award of $500.00 to each plaintiff will do substantial justice between the litigants at bar.



PLAINTIFFS' APPEAL


The thrust of plaintiffs' argument is that the Nineteenth Judicial District Court of East Baton Rouge Parish erred in rejecting and dismissing plaintiffs' demand for damages and attorney's fees because of the wrongful issuance of the preliminary injunction which prohibited plaintiffs from enforcing their judgments which had become executory. In so arguing, plaintiffs contend the delays for taking a suspensive appeal from the Iberville Parish judgment against defendant had expired before plaintiffs attempted execution, therefore, plaintiffs were entitled to enforcement.


The record, however, discloses that defendant had in fact timely taken a suspensive appeal and therefore plaintiffs' judgment was not executory when the fi fa issued in East Baton Rouge Parish.


As previously noted, the trial court in Iberville Parish rendered oral judgment in *445 favor of plaintiffs on December 12, 1967, as to liability but the matter was taken under advisement as to quantum. Subsequently, on January 25, 1968, judgment was signed in open court in favor of each plaintiff in the sum of $1,800.00. Defendant suspensively appealed the judgment on February 28, 1968, and the following date posted bond in sufficient amount therefor.


[9] [10] [11] On the face of the record more than 15 days expired between the time judgment was signed and the suspensive appeal taken and bond posted. Nevertheless the suspensive appeal was timely. Since the matter was taken under advisement by the trial court, the delays for applying for a new trial did not commence to run until notice of judgment was served upon defendant. LSA-C.C.P. Article 1913. It is patent on the face of the record that no such notice was in fact served. Consequently the delay allowed for applying for new trial never commenced to run. LSA-C.C.P. Article 1913. Articles 1974 and 2123 LSA-C.C.P. in effect provide that the delays for appealing either suspensively or devolutively do not commence tolling until expiration of the delay allowed for application for new trial. Since the 15 day delay allowed by law for taking a suspensive appeal, LSA-C.C.P. Article 2123 never commenced to run, it necessarily follows that it never expired and defendant's suspensive appeal was timely taken and perfected. It also follows that under such circumstances plaintiffs' judgment was not final when execution was attempted and the preliminary injunction issued by the trial court was in order. LSA-C.C.P. 2252. Plaintiffs' claim for damages is therefore without merit and is dismissed.


Accordingly, it is ordered, adjudged and decreed that the judgment of the trial court in favor of plaintiffs is amended and judgment rendered herein in favor of petitioners, Adam J. Boudreaux and Kathryn Boudreaux, in the sum of $500.00 each against defendant Allstate Finance No. 2 Corporation, together with legal interest thereon from date of judicial demand until paid, all costs of these proceedings in Iberville Parish, namely, No. 7519 of the docket of this court, shall be and the same are hereby assessed against defendant, and all costs in No. 7554 on the docket of this court shall be and the same are hereby assessed against plaintiffs.


It is further ordered, adjudged and decreed that the claims of plaintiffs Adam J. Boudreaux and Kathryn Boudreaux for damages against defendant Allstate Finance Corporation and/or Allstate Finance No. 2 Corporation for alleged wrongful issuance of preliminary injunction, be and the same are rejected and dismissed, with prejudice.


Amended and affirmed.

La.App., 1968.
BOUDREAUX v. ALLSTATE FINANCE CORPORATION
217 So.2d 439
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
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