Wednesday, July 13, 2011

FYI: 11th Cir Affirms FDCPA Ruling in Favor of Debt Collector in Telephone Message Case

In an unfortunately unpublished opinion, the U.S. Court of Appeals for the
Eleventh Circuit recently held that a debt collector's telephone messages
did not violate the federal Fair Debt Collection Practices Act ("FDCPA"),
15 U.S.C. § 1692, where the message identified the name of the caller,
which included the term "Collection Bureau," and specifically referenced
the debtor's personal file number.

A copy of the opinion is available at:

Plaintiff-debtor ("Debtor") brought suit against defendant-debt collector,
Gulf Coast Collection Bureau, Inc. ("Gulf Coast"), alleging violations of
the FDCPA and the Florida Consumer Collections Practices Act ("FCCPA").
The Debtor's allegations arose from a series of identical or nearly
identical telephone messages from Gulf Coast which stated:

"This message is intended for Eric H. Beeders (Debtor). If you
are not Eric H. Beeders please hang up or disconnect. If you are Eric H.
Beeders please continue to listen to this message. By continuing to
listen to this message you acknowledge that you are Eric H. Beeders.
Please return this call to Roy Dillard from Gulf Coast Collection Bureau.
Please call 877-827-4820 and ask for file number G31852."

The lower court granted Gulf Coast's motion for directed verdict following
a bench trial. On appeal, the Debtor argued that the telephone message
failed to comply with the FDCPA and FCCPA "because it did not adequately
satisfy the disclosure requirement in that it did not identify the nature
of the calling company's business, the fact that the caller was a debt
collector, and the fact that the call was being made with respect to the
collection of a debt."

The Eleventh Circuit affirmed, reasoning that "taking this message as a
whole, even an unsophisticated consumer would not be misled as to the
purpose of this call, as the message identified the name of the caller,
which includes the term 'Collection Bureau,' and specifically referenced a
personal file number." Accordingly, the Court found "no reversible error
in the district court's conclusion that Gulf Coast satisfied the
disclosure requirements of the FDCPA."

The Court also noted that, having found against the Debtor on his FDCPA
claim, the Court "need not address Debtor's arguments that the failure to
comply with these requirements constitute a per se violation of the
FCCPA." Therefore, the Court also affirmed the lower court's grant of
summary judgment as to Debtor's FCCPA claim.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874

NOTICE: We do not send unsolicited emails. If you received this email in
error, or if you wish to be removed from our update distribution list,
please simply reply to this email and state your intention. Thank you.

Our updates are available on the internet, in searchable format, at:
CONFIDENTIALITY NOTICE: This communication (including any related attachments) is intended only for the person/s to whom it is addressed, and may contain confidential and/or privileged material. Any unauthorized disclosure or use is prohibited. If you received this communication in error, please contact the sender immediately, and permanently delete the communication (including any related attachments) and permanently destroy any copies.

IRS CIRCULAR 230 NOTICE: To the extent that this message or any attachment concerns tax matters, it is not intended to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed by law.