1Rule 52(c) provides: “If a party has been fully heard on

an issue during a nonjury trial and the court finds against the

party on that issue, the court may enter judgment against the

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Rosemary A. Gilroy

v. Civil No. 07-cv-074-JD

Opinion No. 2009 DNH 088

Ameriquest Mortgage Company 

and Ameriquest Mortgage Company 

Mortgage Services, Inc.

O R D E R

Proceeding pro se and in forma pauperis, Rosemary A. Gilroy

brings a complaint against the defendants, Ameriquest Mortgage

Company (“Ameriquest”) and Ameriquest Mortgage Company Mortgage

Services, Inc. (“AMC Services”), for violations of New Hampshire

Revised Statutes Annotated (“RSA”) 358-C:3, I(a). Specifically,

Gilroy alleges that the defendants harassed her by repeatedly

calling her at home regarding her delinquent mortgage payments. 

The court held a bench trial on May 11, 2009. Each party

submitted a set of proposed findings of fact and rulings of law

before trial. At the close of the evidence, the defendants

submitted a motion for judgment as a matter of law pursuant to

Federal Rule of Civil Procedure 52(c).1 Both parties presented a

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party on a claim or defense that, under the controlling law, can

be maintained or defeated only with a favorable finding on that

issue. The court may, however, decline to render any judgement

until the close of evidence. A judgment on partial findings must

be supported by findings of fact and conclusions of law as

required by Rule 52(a).”

2

brief oral argument on the Rule 52(c) motion. Gilroy

subsequently filed a motion to object to the defendants’ Rule

52(c) motion as well as an objection to the defendants’ motion. 

The court has considered these materials, the testimony and

exhibits received at trial, and the parties’ post-trial

submissions, and makes the following findings of fact and rulings

of law. See Fed. R. Civ. P. 52(a). 

Findings of Fact & Rulings of Law

I. Liability

Gilroy brings suit alleging harassment in violation of RSA

358-C:3, I(a). As the party asserting the harassment claim,

Gilroy carries the burden of proving her claim by a preponderance

of the evidence. State v. Lavoie, 155 N.H. 477, 481 (2007) (“In

a civil action the burden of proof is generally on the plaintiff

to establish its case by a preponderance of the evidence [and]

[a]bsent legislative direction to the contrary . . . the general

civil burden of proof [applies].”) (internal citation and

quotation marks omitted). The court, however, is “not compelled

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2The defendants did not produce evidence at trial.

3The court previously noted, based on the parties’

averments, that AMC Services acted as Ameriquest’s debt servicing

3

to accept a plaintiff’s testimony even if uncontradicted.” 

Santana v. United States, 572 F.2d 331, 335 (1st Cir. 1977) (“The

plaintiff has the burden of proof and the [court] may find that

the testimony does not carry that burden.”); see also Bouthiette

v. Wiggin, 122 N.H. 774, 776 (1982).

To succeed on her harassment claim, Gilroy must prove that: 

(1) the defendants, in an “attempt to collect a debt”; (2) orally

communicated or attempted to orally communicate with her “by

causing a telephone to ring[,] or engaging [her] in telephone

conversation[s]”; (3) “repeatedly or continuously or at unusual

times or at times known to be inconvenient”; (4) “with the intent

to abuse, oppress or harass” her. RSA 358-C:3, I(a).

Gilroy presented the following evidence at trial.2 In March

of 2000, Gilroy purchased five office condominium units in

Amherst, New Hampshire. She currently lives in one of the units

(Unit 1), which she converted into a residential condominium. 

Unable to find renters for the other four units, Gilroy decided

to convert them into residential units. In order to finance the

conversions, Gilroy mortgaged Units 1, 2, and 4, to Ameriquest in

2004.3 At the time Gilroy took out the mortgages, she knew that

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corporation during the applicable time period. See Order on

Summary Judgment, document no. 82, at 1 n.1. This was not

contested by the parties. 

4Federal Rule of Evidence 801(c) provides that hearsay is a

statement, “other than one made by the declarant while testifying

at trial or hearing, offered in evidence to prove the truth of

the matter asserted.” 

Rule 901(a) provides that, “[t]he requirement of

authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent

claims.” Thus, courts have recognized that the selfidentification of a caller is inadmissible unless sufficiently

4

she would not be able to make the monthly payments unless the

units were rented out. Gilroy was unable to rent the units.

By February of 2006, Gilroy had stopped making payments on

the Ameriquest Mortgages. Gilroy testified that she began

receiving phone calls at this time from persons seeking to

collect payment on the Ameriquest Mortgages. She testified that

the callers identified themselves as representatives of

Ameriquest or AMC Services and stated that they were calling

about her delinquent mortgage payments on her three Ameriquest

mortgages. The defendants objected at trial to Gilroy’s

testimony regarding the identity of the callers, arguing that it

was inadmissible hearsay and that Gilroy failed to establish a

proper foundation regarding the identification of the callers. 

See Fed. R. Evid. 801(c), 901(a).4 

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supported by additional evidence. See United States v. Khan, 53

F.3d 507, 516 (2d Cir. 1995).

5

The court overruled the defendants’ hearsay objection. 

Gilroy’s testimony that the callers identified themselves as

representatives of Ameriquest or AMC Services was admitted for

the limited purpose of showing what Gilroy heard, i.e., that the

callers identified themselves as representing Ameriquest or AMC

Services. It was not admitted to establish the truth of the

matter asserted, i.e., that the callers did actually work for, or

represent, Ameriquest or AMC Services. This testimony was

therefore not hearsay. See Fed. R. Evid. 801(c); United States

v. Munoz, 36 F.3d 1229, 1233 (1st Cir. 1994) (“[A]n out-of-court

statement is not hearsay if it is used only to show that the

statement was made and that the listener heard the words

uttered.”). 

 Gilroy produced sufficient admissible evidence at trial to

prove the identity of the callers. Gilroy testified that the

phone number of the incoming call, which was displayed on her

caller ID, was almost identical to the phone numbers which she

had called on several prior occasions at which she had reached

Ameriquest or AMC Services. She further testified that the only

contacts she had in California were Ameriquest and AMC Services

and that the same California numbers would appear on her caller

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6

identification each time the mortgage calls came in. She

testified that the callers would recite the account number on her

mortgage, or otherwise identify one of the mortgages on Gilroy’s

three units, and ask why she had not made any payments. Gilroy’s

daughter, Robin Benjamin, testified that during the phone

conversations, which she witnessed up through approximately

September of 2006, Gilroy would talk about overdue mortgage

payments while on the phone with the callers, would often sound

angry, and would tell the callers to stop calling. Gilroy

presented sufficient admissible evidence, therefore, to establish

that the callers were the defendants or representatives of the

defendants. See United States v. Console, 13 F.3d 641, 661 (3d

Cir. 1993) (“It is well settled that telephone calls may be

authenticated by circumstantial evidence as well as by direct

recognition of the person calling.”); Fed. R. Evid. 901, Advisory

Committee notes, example 4. (“[A] telephone conversation may be

shown to have emanated from a particular person by virtue of its

disclosing knowledge of facts known peculiarly to him.”). 

Gilroy testified that she received up to three calls per

night, up to three nights per week from February 2006 through

February 2007 for a total of up to 468 calls. Benjamin testified

that she witnessed Gilroy receiving one to three calls per night,

one to two nights per week, for a six month-period, for a total

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5Gilroy insists that the FDCPA also applies to her claim and

that she is entitled to statutory damages under the FDCPA of

$1,000 per violation. The court looks to relevant federal law

only for guidance in interpreting and applying RSA 358-C:3, I(a). 

The court has held, in numerous orders, that Gilroy’s complaint

pled a harassment claim only under state law, and that therefore

only RSA 358-C:3, I(a) applies in this case. The court directs

Gilroy to those orders, which explain why her claim is limited to

the state law. See Preliminary Review Order, doc. no. 4, at 12-

13; Order on Summary Judgment, doc. no. 82, at 4; Procedural

Order, doc. no. 91; Final Pretrial Order, doc. no. 105, at 1. 

7

of up to 156 calls. Although Gilroy did not present evidence of

specific dates and times for the calls, RSA 358-C:3, I(a) does

not require that a debtor prove specific dates and times. 

The testimonies of Gilroy and Benjamin were sufficiently credible

to establish that Gilroy received, by a conservative estimate,

approximately 200 calls from February of 2006 through February of

2007. 

Gilroy claims that each of these calls violated RSA 358-C:3,

I(a). There is a lack of New Hampshire case law interpreting RSA

358-C:3, I(a). The court, therefore, looks to the federal Fair

Debt Collection Practices Act (“FDCPA”) for guidance because it

contains provisions similar to the New Hampshire law.5 The

relevant portion of the FDCPA provides that “[a] debt collector

may not engage in any conduct the natural consequence of which is

to harass, oppress, or abuse any person in connection with the

collection of a debt.” 15 U.S.C. § 1692d. The FDCPA prohibits a

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6At trial, both parties addressed the time period outlined

in 15 U.S.C. § 1692c(a)(1) which provides that “[i]n the absence

of knowledge of circumstances to the contrary, a debt collector

shall assume that the convenient time for communicating with a

consumer is after 8 o’clock antimeridian and before 9 o’clock

postmeridian, local time at the consumer’s location.” The New

Hampshire law does not contain a similar provision and in any

event, the court finds that the time period cited in this

provision is inapplicable given that Gilroy notified the

defendants that anytime after 8 p.m. was inconvenient for her

because she goes to bed early.

8

debt collector from “[c]ausing a telephone to ring or engaging

any person in telephone conversation repeatedly or continuously

with intent to annoy, abuse, or harass any person at the called

number,” id. at § 1692d(5), and from “communicat[ing] with a

consumer in connection with the collection of any debt . . . at

any unusual time or place or a time or place known or which

should be known to be inconvenient to the consumer,” id. §

1692c(a)(1).6 

In interpreting the provisions of the FDCPA, courts have

held that “[w]hether there is actionable harassment or annoyance

turns not only on the volume of calls made, but also on the

pattern of calls.” Akalwadi v. Risk Mgmt. Alternatives, Inc.,

336 F. Supp. 2d 492, 505 (D. Md. 2004); Joseph v. J.J. MacIntyre

Cos., 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002). For example,

courts have found violations of § 1692d(5) where the defendant

repeatedly telephoned the plaintiff after being told by the

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9

plaintiff to stop calling, Chiverton v. Fed. Fin. Group, Inc.,

399 F. Supp. 2d 96, 104 (D. Conn. 2005) and where the defendant

made six calls to the plaintiff in twenty-four minutes, Kuhn v.

Account Control Tech., 865 F. Supp. 1443, 1453 (D. Nev. 1994). 

In Sanchez v. Client Servs., 520 F. Supp. 2d 1149 (N.D. Cal.

2007), the court recognized that “the frequency and volume of . .

. telephone calls [can] show that defendants intended to annoy,

abuse and harass [the] plaintiff.” Id. at 1161. 

Intent may also be inferred by evidence that the debt

collector continued to call the debtor after the debtor had asked

not to be called and had repeatedly refused to pay the alleged

debt, or during a time of day which the debtor had informed the

debt collector was inconvenient. See Kerwin v. Remittance

Assistance Corp., 559 F. Supp. 2d 1117, 1124 (D. Nev. 2008)

(“Intent to annoy, abuse, or harass may be inferred from the

frequency of phone calls [or] the substance of the phone calls .

. . .”); Bingham v. Collection Bureau, Inc., 505 F. Supp. 864,

873 (D.N.D. 1981) (finding that call by collection agency

immediately following a prior call could establish harassment);

cf. In re Coffey’s Case, 157 N.H. 156, 178 (2008) (recognizing

that intent may be proven through sufficient circumstantial

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7The defendants cite to Bieber v. Associated Collection

Servs., Inc., 631 F. Supp. 1410 (D. Kan. 1986) and argue that the

FDCPA has been interpreted as prohibiting only oppressive and

outrageous conduct. The court declines to apply this principle

here. This case is not binding upon the court’s interpretation

and application of New Hampshire law. Moreover, this principle

was espoused in response to an allegation that during a phone

conversation, the defendant asked whether the plaintiffs had

filed bankruptcy. 

10

evidence).7 Further, at least one court has rejected a

defendant’s argument that the frequency of calls may be excused

where the defendant is collecting on several separate debts,

finding that “such a distinction [is not] apparent from the plain

language of . . . 15 U.S.C. § 1692d(5).” Joseph, 238 F. Supp. 2d

at 1169. Such limiting language is also absent from RSA 358-C:3,

I(a).

Gilroy testified that she told the defendants to stop

calling her, that the calls were upsetting her, and that she did

not have the money to pay the mortgages. She also testified that

the defendants repeatedly called her at home around 8 p.m. and

sometimes as late as 9 p.m., after she had informed them that she

often went to bed by 8 or 9 p.m. and that the evening calls were

bothering her. Benjamin testified that she observed Gilroy

become angry while on the phone with the callers and that she

heard Gilroy tell the callers to stop calling. Gilroy further

testified that on two occasions in July of 2006, the callers said

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8The defendants did not object to this testimony.

11

that Gilroy was a “liar” when she told them that she had declared

bankruptcy and did not have an attorney representing her.8

 The credible testimonies of Gilroy and Benjamin concerning

the frequency, nature, and time of day of the calls constitute

sufficient evidence permitting the court to infer the defendants’

intent to “abuse, oppress or harass” Gilroy. RSA 358-C:3, I(a). 

Once Gilroy told the defendants to stop calling her, that she

could not pay the mortgages, and that their nighttime calls were

bothering her, each of the 200 subsequent phone calls to Gilroy

constituted a violation of RSA 358-C:3, I(a). The defendants’

intent to harass Gilroy is further evidenced by the two July

calls in which the defendants called Gilroy a “liar.” 

For the foregoing reasons, the court holds that Gilroy has

proven her claim of harassment under RSA 358-C:3, I(a).

II. Damages

Gilroy seeks statutory damages and all damages proximately

caused by the violations of RSA 358-C:3, I(a). RSA 358-C:4, I. 

The statute, however, only permits recovery for the greater of

either “the sum of $200 plus costs and reasonable attorney’s fees

for each violation, or . . . [f]or all damages proximately caused

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12

by the violation.” RSA 358-C:4, I. To prove the latter, Gilroy

must show that the defendants’ violations of RSA 358-C:3, I(a)

were the proximate cause of her injuries. See Carignan v. New

Hampshire Int’l Speedway, 151 N.H. 409, 414 (2004). “[T]o

establish proximate cause, the plaintiff must prove that the

defendant’s conduct caused or contributed to cause the harm.” 

Id. 

Gilroy claims that the defendants’ actions affected her

health and concentration, and prevented her from refinancing the

units, which in turn caused her to go further into default and

become unable to pay her property taxes. Gilroy’s injuries,

however, are due to her lack of income. It is undisputed that

Gilroy did not have the income to pay the Ameriquest mortgages

before the calls began in February of 2006 because she could not

rent the units. There is no evidence that the defendants’ phone

calls caused or contributed to Gilroy’s inability to obtain an

income and pay the mortgages and property taxes. Therefore,

Gilroy has failed to establish proximate cause and may not

recover damages under RSA 358-C:4, I(b).

Gilroy is, however, entitled to statutory damages of $200

for each violation of RSA 358-C:3, I(a) by the defendants. RSA

358-C:4, I(a). As the court found above, based upon Gilroy’s and

Benjamin’s credible testimonies, the court conservatively

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13

estimates that the defendants made 200 calls in violation of RSA

358-C:3, I(a). See Fed. R. Civ. P. 52. The statute specifies

damages of $200 per violation, which yields a total of $40,000 in

statutory damages. See RSA 358-C:4, I(a).

Conclusion

Based on the foregoing findings and rulings, the court

orders judgment for Gilroy in the amount of $40,000. Any other

requests for findings of fact or rulings of law submitted by the

parties and not expressly or implicitly granted in the body of

this opinion are hereby denied. The defendants’ motion for

judgment on partial findings (document no. 127) is granted as to

damages proximately caused and is otherwise denied, and Gilroy’s

motion to object (document no. 129) is terminated as moot. The

clerk shall enter judgment accordingly and close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 17, 2009

cc: Rosemary A. Gilroy, pro se

Thomas C. Tretter, Esquire

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