What Can Debt Collectors Say On Answering Machines
Friday August 31, 2007
Q: For the past few months, I've been receiving messages on my answering machine from a company. I searched the company's name online and it turns out to be a debt collector. Aren't debt collectors supposed to identify themselves when leaving messages on answering machines? Can I sue this collector for failing to mention that he's a debt collector?
A: Actually, it's the opposite. Under the Fair Debt Collection Practices Act, FDCPA, debt collectors have strict guidelines for when and how they can communicate with you. If a debt collector leaves a message on your answering machine that even hints he's a collector, he's breaking the law. In that case, you can sue. Since debt collectors can't communicate with third-parties about your debt, they can't leave messages about your debt on answering machines that others have access to.
Keep in mind the FDCPA applies to third-party debt collectors not the original creditor.
ETA 9/4/07: A commenter referenced Foti v. NCO Fin. Sys., Inc, a New York court case in which the court ruled that answering machine message are considered communications. Under the FDCPA, § 806, 15 USC 1692d, (6), debt collectors must reveal their identities in communications to debtors.
Currently, the FDCPA, which was written pre-answering machines in 1977, does not have any guidelines about whether collectors can leave messages on answering machines. So depending on your attorney and the debt collectors attorney, a lawsuit could go either way.
Either attorney could argue that under § 804, 15 USC 1692b, (2) the debt collector cannot state the consumer owes a debt when communicating with any person other than the consumer. And under § 805, 15 USC 1692c, (b) debt collectors cannot communicate with certain third parties without prior consent from the consumer. The debt collector cannot guarantee that the consumer is the only person with access to the answering machine. If the collector reveals that a debt is owed in an answering machine message, there is the risk that a third party could overhear the message and learn the consumer has a debt. If this is the case, the consumer's rights under the FDCPA have been violated.
A: Actually, it's the opposite. Under the Fair Debt Collection Practices Act, FDCPA, debt collectors have strict guidelines for when and how they can communicate with you. If a debt collector leaves a message on your answering machine that even hints he's a collector, he's breaking the law. In that case, you can sue. Since debt collectors can't communicate with third-parties about your debt, they can't leave messages about your debt on answering machines that others have access to.
Keep in mind the FDCPA applies to third-party debt collectors not the original creditor.
ETA 9/4/07: A commenter referenced Foti v. NCO Fin. Sys., Inc, a New York court case in which the court ruled that answering machine message are considered communications. Under the FDCPA, § 806, 15 USC 1692d, (6), debt collectors must reveal their identities in communications to debtors.
Currently, the FDCPA, which was written pre-answering machines in 1977, does not have any guidelines about whether collectors can leave messages on answering machines. So depending on your attorney and the debt collectors attorney, a lawsuit could go either way.
Either attorney could argue that under § 804, 15 USC 1692b, (2) the debt collector cannot state the consumer owes a debt when communicating with any person other than the consumer. And under § 805, 15 USC 1692c, (b) debt collectors cannot communicate with certain third parties without prior consent from the consumer. The debt collector cannot guarantee that the consumer is the only person with access to the answering machine. If the collector reveals that a debt is owed in an answering machine message, there is the risk that a third party could overhear the message and learn the consumer has a debt. If this is the case, the consumer's rights under the FDCPA have been violated.
Comments
I disagree. In a rash of recent federal court rulings, most notably Foti v. NCO voice messages are considered a communication which must disclose the message is from a debt collector.
Third party disclosure does not occur when such a message is left on the debtors answering machine, as the debtor controls who has permission to listen to the messages.
If someone listens without the debtors consent it is not unlike someone opening their mail without their consent. It’s not third party disclosure.
Yet, if the debt collector has not spoken to the debtor on the phone number in question and verified it as the debtors, it is very conceivable that a third party who recently was given the number by the phone company gets a message with the debtor named as someone the collection agency is trying to collect a debt from.
Most recently, in Foti v. NCO Financial Systems, Inc., a New York district court rejected the defendant’s argument that the term “communication” does not include a voice mail message where the caller does not specifically reference the debt.16 The defendant’s voice mail message did not include the language required by § 807(11), and the defendant argued that the section was inapplicable because the message did not constitute a “communication.” It further argued its “interpretation was necessary to avoid placing debt collectors in a virtual ‘Hobson’s choice’ — debt collectors must disclose their identity to comply with § 1692e(11) requirements, but are prohibited from leaving a message identifying themselves as such by § 1692c(b)[.]”17 In response to the defendant’s argument, the court stated as follows:
“NCO’s argument is essentially based on the assumption that it is somehow entitled to leave pre-recorded messages…However, just because a debt collector is permitted to continue to attempt to collect the debt does not entitle the collector to use any means, even if those means are the most economical or efficient…In this case, the fact that NCO may not be able to leave a pre-recorded message that complies with both § 1692e and § 1692c(b) of the Act in no way warrants a conclusion that ‘communication’ should be narrowly interpreted. Rather, it merely suggests that a debt collector is not permitted to leave a pre-recorded message in violation of the FDCPA. Debt collectors, however, could continue to use other means to collect, including calling and directly speaking with the consumer or sending appropriate letters. Thus, the alleged ‘Hobson’s Choice’ in this case is self-imposed by NCO. It is only because of the method of debt collection selected — calling and leaving the type of pre-recorded messages — that NCO is faced with this potential dilemma.”18
Debtor should be strict to creditors..