An everyday common collection method for debt collectors has been to leave messages on a consumer’s voice mail if the consumer didn’t answer the phone. This would prompt the consumer to call the debt collector back and then the collector would be able to attempt to resolve the debt. But what would happen if the simple act of leaving a voice message to return a call became illegal? Collection agencies nationwide are becoming the targets for numerous lawsuits over this very simple issue.
The Fair Debt Collection Practices Act (FDCPA) contains a provision that states that a debt collector may only communicate the existence of a debt with either the consumer responsible for the debt, their spouse or their attorney. Information conveyed to a third party that a debt was owed would no doubt create a violation of the FDCPA. Generally when a debt collector would leave a message on a consumer’s voice mail, a name and return phone number would be the only information left. This protected the debt collector if someone other than the responsible party listened to the message.
However, because the FDCPA defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium,” courts have interpreted that a voice mail message left for a consumer may be communication under the law and requires the provision of the mini-Miranda, as well as disclosure of the collector’s identity. At the same time, it still remains a violation of the FDCPA to disclose information regarding a debt to third parties. Collection agencies are getting sued if they leave a message without proper disclosure in the message, and they are getting sued if they do leave the proper disclosure and a third party hears the message.
Many collection agencies have changed the message they leave on a voice mail to include a statement that states if the person listening to the message is not the intended recipient, then they are instructed to disconnect the call, if they continue to listen, the collector states the required disclosures. Unfortunately collection agencies have been sued even with this provision and courts are concluding that if the consumer listens to the message in the presence of a third party, then the collector has violated the FDCPA. More and more collection agencies are now choosing to just not leave a message at all and to disconnect if there is no answer. This is leaving consumers confused and frustrated when their caller ID’s show a missed call, but no message is left as to the purpose of the call.
A recent decision by a federal judge in Minnesota and introduction of a new bill in congress, H.R. 4101, the Fair Debt Collection Practices Clarification Act of 2012, offers some hope for a solution. In the Minnesota case of Zortman v. J.C. Christensen & Associates, Inc., issued on May 2, 2012, the court held that a voicemail message containing the caller’s name and identifying the caller as a debt collector with “an important” message was not a “communication” under the FDCPA. The court concluded that the message left no more information than a hang-up call would on the consumer’s missed call log or caller ID, and went to state that prohibiting messages of this kind would effectively prevent debt collectors from using the telephone as a collection method, something the FDCPA expressly allows.
H.R. 4101 will give the collection industry its best chance to provide amendments to the FDCPA to clarify conflicting and outdated language in regards to voice mail messages. The bill also directs the Consumer Financial Protection Bureau to prescribe clear regulations for leaving messages on consumers’ answering systems and provide clarity for what information is permissible to leave on a message.
At this time, until H.R. 4101 is decided, there is no fail-safe course of action for collectors to take in regards to leaving voice mail messages, and unwarranted legal attention can follow regardless of how careful the collector is in leaving their message.