The U.S. District Court for the Middle District of Pennsylvania recently ruled that a debt collector did not violate the Fair Debt Collection Practices Act (FDCPA) because it failed to identify itself at the beginning of a prerecorded message as required by the Telephone Consumer Protection Act (TCPA).

In Ninouska Gomez v. Oxford Law, LLC, the prerecorded voice mail message left by the debt collector began with a statement that if the person listening was the person named in the message (someone with the same last name but a different first name than the plaintiff), he should continue to listen to the message. The debt collector identified itself in the seventh sentence of the message. Under the TCPA, an artificial or prerecorded telephone message must identify the business, individual, or other entity that is calling at the beginning of the call.

The plaintiff alleged that the message violated the FDCPA’s prohibition in section 1692e(5) on “threat[ening] to take any action that cannot legally be taken or that is not intended to be taken.” The plaintiff did not claim that the debt collector’s message was a threat to take action that cannot legally be taken. Instead, the plaintiff contended that section 1692e(5) prohibits not only such threats but also prohibits illegal acts. According to the plaintiff, because the message was a TCPA violation that occurred during the collection of a debt, the debt collector violated section 1692e(5)’s prohibition of illegal acts.

In granting the debt collector’s motion for summary judgment, the court ruled that section 1692e(5)’s plain language applies only to threats to take action. The court found the debt collector’s message to be devoid of any threat, such as one to institute a lawsuit or garnish the plaintiff’s wages, and instead to only ask the plaintiff to call it back.

In addition, the court observed that even if it were to construe section 1692e(5) to include both threats and illegal acts, the debt collector’s “technical violation of the TCPA” was not the type of illegal act prohibited by the FDCPA. According to the court, the cases in which courts have found a section 1692e(5) violation based on an illegal act have all involved illegal acts pertaining to filing a lawsuit, moving for a default judgment, or serving a writ of garnishment (where the debt collector’s illegal act, such as engaging in the unauthorized practice of law, would have made the lawsuit, default judgment, or garnishment an action the debt collector could not legally take).

The message left by the debt collector appears to have been crafted in response to the Southern District of New York’s 2006 decision in Foti v. NCO Financial Systems, Inc., which interpreted the rule in FDCPA Section 1692b that generally prohibits a debt collector from communicating with anyone other than the debtor. That decision created a Hobson’s choice for debt collectors seeking to comply with section 1692b when a call to a debtor is picked up by an answering machine or voice mail by effectively requiring the collector to either hang up or leave an awkward, elaborately scripted message. In Oxford, the court acknowledged the dilemma faced by debt collectors when leaving voice mail messages and noted that “the purpose of the [collector’s] introductory comments is to ensure that no one but the debtor listens to the message about the debt. Thus, the defendant ‘violated’ the TCPA to comply with the FDCPA.”

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 Protection Bureau examinations.

The firm has also created a TCPA Task Force to assist clients in navigating the complex and challenging issues that arise under the TCPA. The task force, which comprises regulatory attorneys and litigators, assists clients by providing counsel on avoiding TCPA liability, including reviewing policies and practices and helping to design mobile text message and prerecorded and autodialed call campaigns. It also assists clients in handling scrutiny from regulators, including preparing for examinations, responding to investigations, and defending against enforcement actions. In addition, task force members defend clients against TCPA class or individual actions.

For more information, please contact CFS 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 Mark J. Furletti at 215.864.8138 or furlettim@ballardspahr.com.


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