Debt Collectors May Not be Allowed to Leave Messages on Voice Mail or Answering Machines
As I’ve covered already, it is a violation of the FDCPA for Debt Collectors to disclose to other people that a consumer owes a debt. Although Debt Collectors are prohibited from disclosing the call is regarding a debt when communicating with third parties, when communicating with the consumer, they must disclose their identity, state that they are a Debt Collector attempting to collect a debt and that any information obtained will be used for that purpose. An interesting situation arises where a Debt Collector leaves a message on a voice mail or answering machine. If they disclose that they are a debt collector and a third party overhears the recording they have violated the FDCPA. If they don’t disclose they are a debt collector, then they violate the FDCPA. Attorneys for Debt Collectors often argue that this is a “Catch-22″. However, Consumer Attorneys are troubled at the possibility of a Debt Collector leaving a message on a consumer’s home answering machine and the message later being heard by a third party.
A recent Order Denying a Debt Collector’s Motion to Dismiss in a FDCPA lawsuit explains how this plays out in a situation where a Debt Collector leaves a message on a consumer’s answering machine. In Berg v. Merchants Association Collection Division, the Court denied the Debt Collector’s Motion to dismiss the law suit. The Debt Collectors argued that the message they were currently using didn’t violate the FDCPA because it demanded that if it was being listened to by someone other than the consumer that the person listening terminate the telephone call. After a brief pause, the debt collectors disclosed that they were a debt collector as required by the FDCPA. The plaintiffs in this lawsuit claimed that this message was overheard by a third party and therefore the Defendant violated the FDCPA.
In explaining its refusal to dismiss the law suit, the Court stated that although a “Catch-22″ might be present, Debt Collectors could solve the problem by not leaving messages on answering machines. The Court, citing Russell v. Equifax A.R.S., stated that “Debt Collectors have no entitlement to use automated messages to reach debtors, and courts have no obligation to harmonize different provisions of the FDCPA so that debt collectors may use an inherently risky method of communication.” The Court went on to conclude that, “Debt Collectors have other methods to reach debtors including postal mail, in-person contact, and speaking directly by telephone.”
So, as it stands now, there is an available cause of action if Debt Collectors have called you and left a message on your answering machine disclosing that you owe a debt if the message is overheard by another person. If this has happened to you, please contact us at 866-339-1156. We may be able to represent you and help you get the Justice you deserve.
Jeffrey Hyslip
