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LaToya Irby

What Can Debt Collectors Say On Answering Machines

By August 31, 2007

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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.
Comments
September 2, 2007 at 9:28 am
(1) E. Normis Debtor says:

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.

October 26, 2007 at 8:43 pm
(2) Steve R says:

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.

October 26, 2007 at 9:09 pm
(3) James C says:

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

January 25, 2008 at 10:08 pm
(4) Safuan says:

Debtor should be strict to creditors..

January 8, 2010 at 7:38 am
(5) leenet says:

Permission to use a common answering machine or voice mail does not relieve the collector of his obligation to not disclose to 3rd party. What is your opinion on automated collection messages? I equate disclosing it is a collection call the same as sending a post card to a common mailbox.

April 2, 2010 at 10:54 am
(6) curt says:

How about when they leave a message for a neighbor- and you have told them that the person does not live at your address. I have been recieving a phone calls for the past almost two years for a debt that belongs to a neighbor they called every number listed at the street address- I called them back heard who it was for and told them I was not the person- asking them to stop at the very start- I suspect it has gone through about twelve different companies. Love the english robot voice the best- I also know it was a pay day loan – just from the very first phone call. I love the fact they expect me to stop listening while they are leaving a message on the answering machine.

April 27, 2010 at 12:56 am
(7) Bev says:

What about the people given as references on someone else’s loan. It’s not even my debt and I get 6 to 8 phone calls a day from the collection agency. Don’t we have rights?

May 11, 2011 at 4:32 pm
(8) Michelle says:

I had a message left on the store answering machine giving the details of a debt including the creditor, loan amount and that it is in litigation. I acknowledge I owe the debt but when anyone at work including customers can hear the messages when they are left I feel violated. Can I counter sue the collection agency?

August 9, 2011 at 3:53 pm
(9) Jennifer Stirling says:

I keep getting voice mails from a few creditors that say “this is so and so with the name of the co and Jane doe you need to come in and make a payment, that i am late or that now I have two payments due and they do this several times a day. can they say all that?

October 8, 2011 at 10:47 am
(10) Brian says:

I received one of these calls today. It was not my debt and the person who they were lookng for had given them a wrong number. In calling them I was told the name of the person they were looking for, and from the message I was told she was in collections and owed a debt. How is that not 3rd party disclosure!

February 18, 2012 at 9:05 am
(11) MR COLLECTOR says:

its funny … As a debt collector I see all kinds of accounts, and speak with all kinds of people. My problem is with the people who run up the card and know that they are not in any way shape or form planning on paying it back. Our country has a terrible economy, and people not paying the debts they incurr is downright deplorable. Also… in our industry we like to call a group of people “educated debtors” …. these are the clowns that sit back and wait for a collector to leave a voicemail and then just try to sue the agency for breaking the law …. simply leaving a message … doesnt even have to break the law …. just some lazy out of work person who wants someone else to pay the debt THEY MAKE… so before people jump to conclusions about debt collectors …. look in the mirror first … if you were responsible and paid your debts … I wouldnt have a job that makes me call you to pay it ;-)

April 24, 2012 at 9:22 am
(12) Layton Ribeiro says:

I cannot thank you enough for the article.Really thank you! Much obliged.

February 23, 2013 at 7:51 pm
(13) WronglyCollectionEDIndividual says:

MR COLLECTOR,
What about those of us who are in collection because a medical biller was in error when they typed an expired provider ID# and the medical insurance company could not pay. Because they did not get payment even after I told them what was wrong, they sent me to collection. How is that fair when my insurance company would have paid?

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