The U.S. District Court for the District of Oregon recently granted summary judgment in favor of a debt collector, ruling that the collector's voice mail messages for the debtor did not unlawfully communicate with a third party under the federal Fair Debt Collection Practices Act ("FDCPA") and related state law, because the collector could not "reasonably foresee" that debtor's boyfriend and manager would overhear the voicemail messages left on her cell phone.
A copy of the opinion is available at: Link to Opinion
A consumer's ("Debtor") unpaid account was referred to a debt collector ("Collector"). Debtor negotiated a payment arrangement with Collector through automatic debit payments. Debtor's boyfriend regularly used and checked the messages on her cell phone. Collector called Debtor's cell phone to update the debit card information. Debtor confirmed to collector that the cell phone was the "best number" to reach her. Collector called the next day and left a message identifying itself as a debt collector.
Debtor's voicemail message gave Debtor's name, but gave no indication the phone was shared with her boyfriend. Debtor's boyfriend heard the message and confronted her about the debt. One month later, Collector called the debtor's cell phone and left a message identical to the previous message. Debtor's manager overhead the message when Debtor used the speaker function on her cell phone to check the message at work.
Debtor alleged Collector violated § 1692c(b) and § 1692d of the FDCPA and the Oregon Unfair Debt Collection Practices Act ("OUDCPA"), when two third parties overheard messages the Collector left on Debtor's cell phone voicemail. Debtor moved for partial summary judgment on liability and Collector moved for summary judgment on all claims.
The court disagreed with Collector's argument that the Debtor consented to Collector's communication with her boyfriend and manager by allowing them to overhear the voicemail messages. The court found that the Debtor had not given consent for the Collector to communicate with a third party. The court noted that § 1692c(b) requires "prior consent of the consumer given directly to the debt collector." The court found that the Debtor never directly gave the Collector consent to communicate with her boyfriend or manager.
The court also disagreed with the Collector's argument that the messages were not a communication conveying information regarding a debt under 15 U.S.C. § 1692a(2). The court explained that the majority of courts interpret § 1692a(2) broadly to include any oral or written communication so long as the intent of the contact is to further the debt collector's efforts to collect a debt, noting that the Ninth Circuit recently adopted the majority approach in an unpublished opinion. The court noted that the minority position interprets § 1692a(2) more narrowly, requiring the message to indicate to the recipient that it relates to the collection of a debt.
The court avoided adopting either the majority or minority position by finding that the Collector's messages were a communication under both interpretations. The court explained that there was no doubt that the purpose of the message was to further collection of a debt and that the message also conveyed information about the debt -- for example, that it existed.
However, the court agreed with the Collector's argument that the messages were not communications with a third party under § 1692c(b).
More specifically, the court held that there is a communication with a third party only if it is "reasonably foreseeable" that the third party would receive the communication. The court declined to adopt a true strict liability standard that would invite abuse by debtors. Instead, the court reasoned that the negligence standard, supported by Federal Trade Commission commentary, struck a better balance by requiring debt collectors to take reasonable measures to avoid disclosure to third parties, but not requiring them to avoid such disclosures at all costs.
In this case, the court determined that the Collector's messages were not unlawful communications with third parties under the "reasonable foreseeability" standard of § 1692c(b). The court explained there was an important distinction between the Debtor's use of a cell phone rather than a landline, noting that the Collector could reasonably foresee that a message left on the Debtor's cell phone would only be accessed by the Debtor.
In addition, the Debtor's personalized voicemail greeting gave no indication the line was shared. Moreover, Debtor informed the Collector that the cell phone number was the "best number" to contact her and did not instruct the Collector to not leave messages.
The court disagreed with Debtor's argument that Collector violated § 1692d of the FDCPA by engaging in conduct the natural consequence of which is to harass, oppress, or abuse the Debtor in connection with the collection of a debt. The court noted that the Collector did not engage in any conduct described in § 1692d, and that two brief, polite messages one month apart hardly rose to a level of harassment.
The court also disagreed with the Debtor's argument that the Collector violated the OUDCPA by communicating repeatedly with Debtor with intent to harass or annoy. The court explained that the FDCPA's "harass, oppress, or abuse" standard is more demanding than the OUDCPA "harass or annoy" standard. Although the court found that the Collector's two phone messages qualified as repeated communications, the court held there was no evidence or argument that the calls were made with the intent to harass or annoy.
Accordingly, the court granted the Collector's motion for summary judgment and dismissed the case.
Ralph T. Wutscher
Maurice Wutscher LLP
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