Sunday, December 7, 2014

FYI: EDNY Holds Debt Collector's Voicemail Heard by Third Party Did Not Violate FDCPA

The U.S. District Court for the Eastern District of New York recently granted a debt collector’s motion for summary judgment, holding that, as the federal Fair Debt Collection Practices Act “is clearly out of touch with modern technology,” a debt collector does not violate the FDCPA if it leaves a message for a debtor on a residential voicemail system and the message, without the debt collector’s knowledge or intent, is overheard by a third party who returns the call and learns of the identity of the intended recipient of the voicemail message.  So long as the debt collector acts with ‘care and caution’ to protect the consumer’s privacy, such communications do not violate section 1692c(b) of the FDCPA.”


A copy of this opinion is available at: Link to Opinion


In this FDCPA action, where the material facts were not in dispute, the debtor owed money to a mobile telecom provider, who retained the debt collector to collect the debt.  The debt collector left the following voicemail for the debtor on his residential voicemail system:  “We have an urgent message from [the debt collector]. This is a call from a debt collector. Please call [telephone number].”


Rather than being initially retrieved by the debtor, the debtor’s son heard the message and returned the debt collector’s telephone call. During the very brief conversation that followed, the debt collector’s representative asked the as yet unidentified caller for his telephone number, which he provided. The debt collector’s representative then asked whether the caller was the debtor by using the debtor’s first name.  Once the caller advised that he was not the debtor, the debt collector’s representative immediately advised that they would remove the caller’s number from their “list” and ended the call.


Thereafter, the subject litigation ensued, with the debtor contending that the “[debt collector’s] voicemail and telephone conversation with his son violated [section 1692c(b) of] the FDCPA.”  The debt collector, in turn, argued that “it never communicated that the debtor owed a debt to a third party in the voicemail or telephone call and therefore did not violate the FDCPA.”


As you may recall, section 1692c(b) of the FDCPA prohibits a debt collector from “communicat[ing], in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.”  15 U.S.C. § 1692c(b).


As a threshold matter, it was clear to the district court that the debtor’s son did not fit within the definition of any of the enumerated exceptions to third party communications as set forth in § 1692c(b).  Nevertheless, the district court rejected the debtor’s argument that the subject communications violated the statute.


Noting that the statute “remains largely unchanged from its enactment in 1977,” the district court recognized that the FDCPA does not address whether voicemail messages can be left for debtors, and what the permissible content is for such messages.  Although other courts have addressed the issue of voicemail messages under the FDCPA (see, e.g., Marisco v. NCO Fin. Sys., Inc., 946 F. Supp. 2d 287 (E.D.N.Y. 2013); Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643 (S.D.N.Y. 2006)), the district court distinguished those cases due to them not involving a return call from an unintended third party who overheard the message.


The district court then turned to a wealth of commentary within the Federal Trade Commission, Consumer Financial Protection Bureau, the United States Government Accountability Office and Congress regarding the shortcomings of the FDCPA as it relates to the use of voicemails. 


Based upon its analysis of this commentary, the district court reasoned that, as the “FDCPA is clearly out of touch with modern communication technology,” rather than protecting consumers from abusive debt collection practices, as the statute was intended to do, and held that a violation under the subject set of facts would “place an undue restriction on an ethical debt collector” and leave consumers with the undesirable alternative of “harassing hang-up phone calls that are a nuisance to [consumers] and ineffective for the debt collector.”


In conclusion, the district court declined to “delineate the specific requirements debt collectors must adhere to when utilizing voicemail technology,” yet was confident that the communications at issue were not “abusive” in nature as the debt collector “acted with care and caution to protect the debtor’s privacy.”


The court stated that it would “def[y] common sense and the purpose of the FDCPA” to find the subject communications violative of the statute.


Accordingly, the district court granted the debt collector’s motion for summary judgment.





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


Admitted to practice law in Illinois



               McGinnis Wutscher Beiramee LLP





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