Accused of calling a New Jersey debtor as many as 10 times a day, student loan servicer Navient Solutions has lost a bid for summary judgment on liability for common-law intrusion on seclusion.
A federal judge in Camden, New Jersey, denied Navient’s motion to dismiss Yolanda Polhill’s suit, which alleges that the company called her 881 times in an 11-month period and that the calls gave her headaches and emotional distress.
Summary judgment is not warranted on the intrusion on seclusion claim because the facts in the case are largely disputed, U.S. District Judge Karen Williams ruled.
The parties agree that Navient began phoning Polhill in May 2017, and that the calls continued until around January 2019, Williams wrote. But parties dispute the number, frequency and timing of calls and Polhill’s requests to no longer receive calls, Williams said.
U.S. District Judge Karen Williams. Photo: New Jersey State Bar AssociationIn addition, although Polhill set her phone to vibrate for incoming calls and kept it in her purse during the workday, the parties disagree about whether the calls were distracting, with Polhill claiming she was reprimanded by her supervisor for answering the phone to ask Navient to stop calling her, Williams wrote.
Also, Navient claims that Polhill’s headaches continued even after it stopped calling her, while she argues that the headaches ended when Navient’s calls stopped. And while Polhill claims that she revoked consent to receive calls from Navient four times, it said it called her number but cannot be sure it was speaking with her.
The case stems from a $6,000 student loan that Polhill co-signed for her brother in 2004.
Navient cites Rush v. Portfolio Recovery Associates, a 2013 case from the District of New Jersey, to support its assertion that Polhill’s claims fail. Navient asserted that Rush requires a large number of calls over a short period to make a showing of intrusion on seclusion. Navient claims that it made fewer than one call per day to Polhill, and that she answered fewer than 10 calls, and such facts don’t rise to the level of tortious conduct. Navient also asserts that Polhill can’t show actual damages from the case because she did not present an expert opinion finding that the calls gave her headaches.
Polhill says the question of whether persistent calls become offensive after the caller has been told to stop is a question for the jury. She says she always suffered from minor headaches related to her menstrual cycle, but she did not suffer from stress-related headaches until the Navient calls began and those headaches ceased when the calls stopped. Navient, for its part, says the standard for liability from the Rush case has not been reached because the plaintiff has not alleged extreme behavior such as prying into her personal affairs or attacking, abusing or insulting her.
Williams found that questions of fact preclude summary judgment, citing a New Jersey Supreme Court ruling from 1977, Stengart v. Loving Care Agency, when she wrote that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”
Williams added that in evaluating claims for intrusion on seclusion, New Jersey courts rely on the Restatement (Second) of Torts, which said with regard to phone calls, “[T]here is no liability for … calling [a plaintiff] to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.”
Williams wrote that the facts in the present case are different from what was presented in Rush, where the court found that the defendant’s conduct was not highly offensive.
In Rush, the defendant contacted the plaintiff up to five times a day, over a four-month period. The plaintiffs in Rush never answered the phone or spoke with the defendant, and the defendants never left a voice message.
In the present case, Navient began calling Polhill in May 2017 and ceased in or around January 2019. Unlike Rush, Polhill claims she asked Navient to cease calling her four different times, that she received more than 800 calls and she sometimes received as many as 10 calls per day. Navient does not conceded these facts.
The plaintiff in Rush regarded the calls as “merely annoying,” while Polhill contends that the calls caused her stress and headaches and she was once reprimanded by her supervisor after speaking with Navient, Williams wrote.
“Giving all reasonable inferences to plaintiff, a reasonably jury could find, as noted in the Restatement, the ‘persistence and frequency’ amounted to a course of hounding the plaintiff, invading her privacy, and becoming a substantial burden to her existence. As there are material disputed facts surrounding the number, frequency, timing, and nature of the telephone calls and Plaintiff’s requests to no longer receive said calls, summary judgment is denied,” Williams wrote.
Steven Alan Alpert of Price Law Group in East Rutherford, representing Polhill, did not respond to requests for comment. Benjamin Evan Gordon of Stradley Ronon Stevens & Young in Cherry Hill, representing Navient, also did not respond to requests for comment.
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