ANSWERING MACHINE MESSAGES DEEMED “COMMUNICATIONS” SUBJECT TO THE FDCPA
The United States District Court for the Central District of Illinois recently held that the brief messages that a debt collector left on a debtor’s answering machine were “communications” subject to the federal Fair Debt Collection Practices Act. Hutton V. C.B. Accounts, Inc., No. 10-3052, 2010 WL 3021904 (C.D. Ill. Aug. 3, 2010). The messages at issue indicated that the matter was urgent, identified the debtor as the intended recipient of the message and the individual caller by name and requested that the debtor make a return call to a specified telephone number. The messages did not indicate that the individual was calling on behalf of a debt collector or provide any information regarding the debt. The debtor sued the debt collector, claiming that it violated the FDCPA because its messages did not include a mini-Miranda notice or provide a meaningful disclosure of the caller’s identity. The debt collector moved to dismiss, arguing that the messages were not “communications” subject to the FDCPA and that they adequately identified the caller.
The court pointed out that the FDCPA defines a “communication” as the conveying of information regarding a debt directly or indirectly to any person through any medium. The court indicated that the majority of district courts have held that voicemail messages left for debtors constitute FDCPA “communications.” Moreover, according to the United States Court of Appeals for the Seventh Circuit, an FDCPA “communication” need not contain an explicit demand for payment. See, e.g., Gburek v. Litton Loan Servicing, No. 08-3776, 2010 WL 2899110 (7th Cir. July 27, 2010) (examined in our Alert dated August 27, 2010). Rather, whether or not something is an FDCPA “communication” involves looking at the would-be communication’s purpose and the context in which it was made. If a telephone call is made for the purpose of collecting a debt, then it is a “communication” for purposes of the FDCPA. The court indicated that the only reason that the debt collector called the debtor in the case before the court was to attempt to collect on her outstanding debt, and thus the debtor had adequately alleged that the messages were FDCPA “communications.”
In reaching this conclusion, the court refused to follow Koby v. ARS Na’l Servs., Inc., No. 09cv0780 JAH (JMA), 2010 WL 1438763 (S.D. Cal. Mar. 29, 2010). In Koby, the United States District Court for the Southern District of California recently held that a voicemail message that merely left the caller’s name and requested a return call was not an FDCPA “communication.” According to the court, the Koby reasoning conflicts with the Seventh Circuit precedent that clearly states that the purpose and context of communications are key factors in determining whether something is an FDCPA “communication.”
The court also held that the caller did not meaningfully disclose the caller’s identity as required by the FDCPA because the messages did not identify the individual caller’s employer nor note that she was calling for debt collection purposes. The court indicated that the debt collector failed to cite to any authority supporting the proposition that leaving an employee’s first name and return telephone number are sufficient as a matter of law for meaningful disclosure under the FDCPA. For these reasons, the court denied the debt collector’s motion to dismiss.
This is an active area of litigation in which courts generally have been unsympathetic to debt collectors who leave messages. Because the penalties can be severe, there are significant risks for collectors who leave messages for collection purposes. Collectors should review their procedures and take steps to mitigate these risks.
- Margaret Stolar and Chuck Gall