What Can Debt Collectors Say On Answering Machines?

Collection Calls and Legal Technicalities

In the past, “the FTC had said that leaving a message was not a communication,” says Leiderman, whose firm represents creditors. But then “there were a couple of (court) cases that said leaving a message on an answering machine was a communication. If it was not a communication you didn’t have to disclose the indebtedness. You didn’t have to say what it was about.” But if the message is a communication, then it must include required information about the debt. That’s where it gets tricky.

Both attorneys pointed to a case, Koby v. ARS National Service, Inc, 2010 WL 1438763 (S.D. Cal. March 29, 2010) that is currently on appeal to the Ninth Circuit Court of Appeals. Smith-Valentine said:

In Koby, the United States District Court for the Southern District of California found that the following voice mail message was not a “communication” within the meaning of the Fair Debt Collections Practices Act (FDCPA): “This is Brian Cooper. This call is for Mike Simmons, I need you to return this call as soon as you get this message 877-333-3880, extension 2571.” It was because the message did not directly or indirectly reference any debt.

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However, the court also found that another message did constitute “communications” under the FDCPA, and held that the message violated the FDCPA by failing to “meaningfully disclose” the identity of the collector: “This is Robin calling for Michael Koby, if you could please return my call at 800-440-6613. My direct extension is 3171. Please refer to your Reference Number as 15983225.” The inclusion of a reference number in the message is a reference to the alleged debt.

Stephen E. Schwartz, a Clifton-NJ based consumer attorney agrees “there is no clear prohibition under the FDCPA against a debt collector leaving a voicemail message.” But he says that debt collectors “should leave as much information as possible and at the very least the debt collector should leave their identity and the nature of the call. If a consumer gets a call from an alias — meaning the debt collector uses a fake name — or just a name and number, then the consumer should save the tape because they have evidence of a potential FDCPA in their hands.”

The new Consumer Financial Protection Bureau will apparently take over responsibility of enforcing the Fair Debt Collection Practices Act from the FTC. It should clarify this issue so that debt collectors have clearer guidelines they can follow when collecting debts. This will benefit both collectors and the consumers from whom they are collecting.

In the meantime, there are some specific things debt collectors clearly can’t do when they leave voice mail messages for consumers:

Use profane or obscene messages, or racial slurs,
Threaten a consumer with arrest or legal action unless the collector legally can take that action, and intends to do so,
Falsely represent that a consumer committed a crime,
Call repeatedly solely for the purpose of harassment.