Know Your Rights

Amending FDCPA to Exempt Collectors for Leaving Messages

I was reported that U.S. Rep. Barney Frank (D-Mass.) introduced legislation Tuesday that appears to directly address liability issues that arise when debt collectors leave voice messages for consumers concerning a debt on their answering machines or cell phones. 

The bill, H.R. 4101, is currently titled the "Fair Debt Collection Practices Clarification Act of 2012." The bill aims to specifically exempt debt collectors from liability when leaving voice messages.   The introduction of the bill states its purpose:
To amend the Fair Debt Collection Practices Act to exempt a debt collector from liability when leaving certain voice mail messages for a consumer with respect to a debt as long as the debt collector follows regulations prescribed by the Bureau of Consumer Financial Protection on the appropriate manner in which to leave such a message, and for other purposes.

The bill appears to put the onus on the Consumer Financial Protection Bureau (CFPB) to come up with language that is appropriate for debt collectors to use in a voice mail.  The bill states that:
A debt collector may leave messages for a consumer in connection with the collection of a debt on the consumer's answering machine, voice messaging system, or other similar device, including in an initial communication with the consumer, so long as the message complies with regulations prescribed by the Bureau to ensure the preservation of the privacy and other rights granted to the consumer.

How are they going to reconcile this bill with the already exiting Fair Debt Collection Practices Act when the Act already covers this scenario?    The court in Edwards v. Niagara Credit Solutions, 584 F.3d. 1350 (11th Cir. 2009) already touched upon this when it stated that "the Act does not guarantee a debt collector the right to leave answering machine messages."  It was also well covered in Berg v. Merchants Associated Collection Division, 586 F.Supp.2d 1336 (FL-SD 2008) where the court stated, "Debt collectors have no entitlement to use automated messages to reach debtors, and courts have no obligation to harmonize different provisions of the FDCPA so that debt collectors may use an inherently risky method of communication."    It appears now that Rep. Frank wants to re-write the FDCPA to give collectors the right to leave a message, and thus render moot the sections of the FDCPA that deal with third party communications.
The FDCPA 1692b and 1692c cover communications to third parties.  In summary, those sections provide that it is not allowed unless seeking location information.  And when obtaining location information, the collector must state that the purpose of the call is to obtain location information.  Moreover, and most importantly, the collector cannot disclose to a third party that the person they are seeking owes a debt. 

Compare this with the mandates of §1692e(11) of the FDCPA and we see where the collectors are having a problem.  That section states that in every communication, the collector must disclose that the communication is coming from a debt collector.  If the collector leaves a message stating that they are looking for a certain debtor, and the message is left on that debtor's phone, then the collector must have disclosed that the purpose of the call was to collect a debt.  However, if another member of that person's household that is not a spouse hears that message, then the collector would run afoul of §1692b(2) by disclosing that the person owed a debt.  This, the collectors are claiming, they need protection from.  Believing that they should have an absolute right to leave people messages, collectors want the passage of this new bill to ensure they can do so. 

The fact is, Congress had this law right the first time, and the courts have been properly interpreting it.  Quite simply, if a collector is calling a phone and wants to leave a message, if the outgoing message does not make it clear to them that the phone belongs to that single debtor, they should not leave a message.  It would be very interesting to see what kind of language the CFPB could come up with that covers the scenario that protects the privacy of debtors as their privacy surely comes before the collectors unwritten and unconfirmed right to leave messages. 

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