Debt Collection: Mortgage company can be sued for invasion of privacy for demanding money.

One of the things that often holds back lawyers, and courts, is an unwillingness (on the part of lawyers) to be creative, and an unwillingness (on the part of courts) to allow it.  Partly that's understandable, as the law is built on precedent and it's hard to be creative when you have to go back 3300 years to The Rule In Shelley's Case to make a point.

Then again, if nobody had ever tried something there wouldn't be any precedent beyond "The King is Right." So we have to have a balance between the two, and that balance is struck by Morris v. Ocwen Loan Servicing, a decision on a motion to dismiss in which the South Carolina federal court allowed a claim against Ocwen to proceed.

Here's the facts, as summarized by the court:

 Plaintiffs allege that in 2013, Defendant began improperly making debt collection calls and sending letters to them regarding the Property's mortgage. Thereafter, in January of 2015, Plaintiffs filed a lawsuit against Defendant in the Lancaster County (South Carolina) Court of Common Pleas alleging violation of the FDCPA, the TCPA, and the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x. After the case was removed to federal court, the parties settled the matter on September 25, 2015, by entering into a Settlement and Release Agreement ("SRA").
Thereafter, Plaintiffs allege that they started receiving calls again from debt collectors representing Defendant beginning on December 7, 2015, and receiving debt collection letters in or around February 2016. "The correspondence claimed that Richard Morris owed a $20,613.54 escrow shortfall [], and a total balance of $327,909.41."
On June 1, 2016, Plaintiffs filed the instant action in this court alleging causes of action against Defendant for invasion of privacy (first cause of action), breach of contract accompanied by fraudulent act (fourth cause of action), intentional infliction of emotional distress (fifth cause of action), and violation of the FDCPA (second cause of action), the TCPA (third cause of action), and SCUTPA (sixth cause of action). (ECF No. 1 at 6-10.)

Can I just point out that there's no need to abbreviate "Settlement And Release Agreement" to SRA? Maybe, if we as lawyers can't all agree to make our jobs more pleasant (as we could easily do) we could agree not to use acronyms, ever?

Anyway, Ocwen moved to dismiss, because that is what defendants do, and the Court considered whether the Complaint alleged a claim. If you are a consumer protection lawyer then at this point you thought oh man the case got dismissed right? Ordinarily you'd be right, but in this case the judge allowed the claim to proceed:

These were the facts that are important to the two best claims the Court let proceed, as written up by the Court:

Plaintiffs generally allege that they received approximately forty-six debt collection calls in a one hundred eighty-three day period between December 7, 2015 and June 6, 2016. Plaintiffs further allege that they received both debt collection calls and correspondence even after Defendant was informed that Plaintiffs were represented by counsel. 
 In addition, Plaintiffs allege that Defendant's conduct caused them "to suffer severe emotional distress beyond what a reasonable person could be expected to endure." In support of this last allegation, Plaintiffs provided specific factual circumstances that demonstrated why Cheryl Morris was affected by Defendant's conduct: (1) one such call occurred on December 7, 2015, while she was at the hospital bedside of her terminally ill mother; (2) another call occurred on January 11, 2016, approximately one week after she buried her mother; and (3) the stress of Defendant's harassment so upset her that she had to be admitted to the emergency room with chest pains and severe anxiety.

The Court, based on those facts, allowed Cheryl's (but not her husband's) intentional infliction of emotional distress and invasion of privacy claims to proceed.

What's noteworthy about that is that there's no apparent allegation that Ocwen was aware that Cheryl's mother was sick, etc.  It may be that Cheryl told Ocwen about this, but if so the Court did not mention it.

In all, the Court allowed three tort or tortlike claims to proceed, while dismissing the contract-related claims, which seems like a big win for the plaintiffs -- and for consumers who get debt collection calls, as well as for consumer protection lawyers who want to defend their clients against companies like Ocwen threatening to collect against them for no reason.