A voicemail message should not be considered a “communication” that is actionable under the Fair Debt Collection Practices Act (FDCPA), the U.S. Court of Appeals for the Sixth Circuit has ruled, unless the message at least implies that it relates to a debt.

In Brown v. Van RU Credit Corporation, the Sixth Circuit affirmed the district court’s grant of judgment on the pleadings in favor of the debt collector, who the plaintiff claimed had violated the FDCPA’s prohibition on third-party communications by leaving a voicemail message at the business owned by the plaintiff. The message stated the debt collector’s name, the caller’s first name, a return phone number, and a reference number, and asked that “someone from the payroll department” return the call. The message was allegedly heard by an employee at the business who was aware that the call was from a debt collector and that any personal calls received at the business were intended solely for the plaintiff.

The FDCPA defines a “communication” as the “conveying of information regarding a debt directly or indirectly to any person through any medium.” According to the Sixth Circuit, the message at issue could not be construed as “conveying” any “information regarding a debt” because it did not imply the existence of a debt. The court rejected the plaintiff’s argument that the presence of the word “credit” in the debt collector’s name referred to debt collection, commenting that “the word ‘credit’ refers to a category of financial activities far broader than debt collection.” In the court’s view, “[t]aken together,” the debt collector’s name and the other “pieces of information in the voicemail” (i.e., the reference number, call back number and request for a return call), did not “imply that [the plaintiff] or anyone else at his business owes debt.”

The Sixth Circuit acknowledged that “[w]hat information a message conveys depends partly on context,” such as where “a message that is part of a series of communications may mean more because of what has already been said.” However, the Court concluded that the plaintiff had not pled “circumstances in which [the debt collector’s] message would mean more than what the words say.” The Court also commented that the fact that the plaintiff’s employee who heard the message “may have guessed” that the message related to the plaintiff’s debt “did not mean that the voicemail conveyed this information or that it could reasonably be construed to do so.” (emphasis  included). According to the court, the FDCPA’s purposes “are not served by taking into account conclusions drawn by third parties where debt collectors could not reasonably expect those third parties to draw such conclusions.”

The court noted that its interpretation of “communication” was consistent with the 10th Circuit’s approach in Marx v. General Revenue Corp., which involved an employment verification form faxed by a debt collector to the plaintiff’s employer. The form displayed the debt collector’s name, logo, address, and phone number, along with the internal number used by the collector to identify the plaintiff’s account. The 10th Circuit concluded that the fax was not a “communication” because it could not be construed as “conveying” any “information regarding a debt” and did not indicate to the recipient that the fax related to debt collection, nor did it imply the existence of a debt. 

The Sixth Circuit’s decision included a dissent that criticized the majority’s focus on “whether the voicemail message was a communication by contemplating how the employee who heard the voicemail understood it.” In the dissenting judge’s view, “[t]he only question should have been whether [the debt collector’s] representative conveyed information about [the plaintiff’s] loan to his employee.” Observing that the reference number left in the message could have been information regarding the debt or the caller’s employee number, the dissenting judge would have remanded to the district court to allow the plaintiff to conduct discovery on “the true nature of the reference number.”

Like the 10th Circuit’s approach in Marx, the Sixth Circuit’s common sense interpretation of “communication” may be helpful in ending the Hobson’s choice currently facing debt collectors whenever a call to a debtor is picked up by an answering machine as a result of a 2006 federal court decision from the Southern District of New York. The ruling in Foti v. NCO Financial Systems, Inc. effectively required a debt collector to either hang up or leave an awkward, elaborately scripted message.

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.

For more information, please contact Consumer Financial Services Group Practice Leader Alan S. Kaplinsky or John L. Culhane, Jr.

 


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