The U.S. District Court for the Eastern District of New York recently ruled 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 Fair Debt Collection Practices Act.

In Zweigenhaft v. Receivables Performance Management, LLC, the voicemail message left by the debt collector also included its phone number but did not identify a consumer or state that a debt was owed. The voicemail was heard by the plaintiff’s son, who returned the call from the plaintiff”s phone. After the son provided the phone number from which he was calling and, when he was asked, responded that he was not the person who had been called (in other words, that he was not the plaintiff), the debt collector volunteered to take the phone number off its list and “wished [the son] a good day.”

The plaintiff alleged that the voicemail and telephone conversation with his son violated the FDCPA’s prohibition on third-party communications. The FDCPA defines a “communication” as the “conveying of information regarding a debt directly or indirectly to any person through any medium.”

The court observed that the plaintiff’s son had received two pieces of information from the voicemail and return call: that a debt collector had called and that the call was for his father. However, it rejected the plaintiff’s argument that this information was a prohibited “communication” because it allowed the son “to deduce that his father owed a debt.”

While noting that the “FDCPA is clearly out of touch with modern technology,” the court found that “even as the statute currently stands [the plaintiff’s] argument cannot pass muster in light of the overall purpose of the FDCPA,” namely protecting consumers from abusive debt collection practices without placing unnecessary restrictions on debt collectors. According to the court, it “would place an undue restriction on an ethical debt collector in light of our society’s common use of communication technology” for the court to hold that the defendant’s actions violated the FDCPA. The court found it determinative that the debt collector “never mentioned [the plaintiff] owed a debt, never disclosed information about any debt, and an audio review of the conversation shows that she was thoroughly professional and courteous.”

The court commented that allowing debt collectors to leave voicemail messages “is in the interest of debtors and debt collectors alike” because “[t]he alternative is numerous, harassing hang-up phone calls that are a nuisance to the debtor and ineffective for the debt collector.” It also observed that “faulting debt collectors for ensuring that they are speaking to the correct individual when they receive a return call is similarly unappealing” and “[such] practice protects debtors’ privacy interests.”

As the “starting point” for its decision, the court referenced the May 2012 decision of a Minnesota federal district court in Zortman v. J.C. Christensen & Associates, Inc. In that case, the Minnesota court ruled that a similar voice message left by a debt collector was not a “communication” under the FDCPA.

As did the court in Zortman, the court in Zweigenhaft discussed the Southern District of New York’s 2006 decision in Foti v. NCO Financial Systems, Inc. That decision creates a Hobson’s choice for debt collectors whenever a call to a debtor is picked up by an answering machine or voicemail because it effectively requires a debt collector to either hang up or leave an awkward, elaborately scripted message. Debt collectors and debt buyers should consult counsel about possible changes to their message scripts in light of Zortman and Zweigenhaft.

Attorneys in Ballard Spahr’s Consumer Financial Services Group regularly advise clients on compliance with the FDCPA and state debt collection laws, defend clients in FDCPA lawsuits and enforcement matters, and represent clients commenting on regulatory proposals. They also prepare clients for Consumer Financial Protecion Bureau examinations. The Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance.

For more information, please contact Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com, John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com, or Collection Documentation Task Force Chair Christopher J. Willis at 678.420.9436 or willisc@ballardspahr.com.


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