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Messages from Debt Collectors

Justice _scaleA very common message is being left by many debt collectors around the country.   Just about anyone who has a collection company pursuing them has heard it.    The message starts with the caller not identifying who they are, but seeking their debtor, "This message is for Jane Doe.  If this is not Jane Doe, hang up the phone."   This gripping opening line hardly gets the reaction the caller desires if the person who first hears this is not Jane Doe.  I doubt that many people hear that the call is not for them and just hang up.  More importantly, if this is coming into a voicemail account or an answering machine, what exactly does hanging up do?  The message is still there and has to be dealt with.  So curiosity has most of us listening on. 

And when we listen on, the call typically gives another instruction, seemingly to attempt to avoid what is inevitable - a third party disclosure.  The voice says, "If this is Jane Doe, do not listen to this message where others can hear it, there will be a 3 second pause for you to listen to this message in private."  I am sure this brings up the image for the collectors of the debtor scurrying off into a private corner to hear the message.  However, the third party who hears the message being left on an answering machine or shared voicemail has just had their curiosity level raised a notch.   

The message will go on to say that by listening to the message, they acknowledge that they are Jane Doe and can listen to this message privately.  The next comment from the collector is the proclamation that they are calling to collect a debt (a requirement of 15 U.S.C. 1692e(11)), and at that moment a third party hearing the message has just been disclosed the debt, in violation of the Fair Debt Collection Practices Act.  Do the collectors warnings protect them against violating third party disclosure rules under the Fair Debt Collection Practices Act?

The answer is a resounding - NOT AT ALL.  A debt collector that leaves a message on a voicemail or answering machine is running the risk of violating the Fair Debt Collection Practices Act.  The FDCPA is what is known as a "strict  liability" statute.  That means that a violation of the law is a violation regardless of whether it was intended or not.  Whether there was a sinister intent behind the action or it was a complete misunderstanding is not relevant.   Thus, whether the debt collector thinks he gave whoever actually answers the phone  or hears the message a chance not to hear it does not matter.  If a third party hears the message the statute has been broken.  A debt collector has no reasonable basis to believe that a non-debtor hearing that message will cover their ears and avoid it.  Human nature is at play and people will go on and listen.  Moreover, there may not be a way to avoid it.  Many answering machines are plugged into a wall and play aloud.  

Finally, many of those messages are left by an automated recording.  A machine does not know and cannot determine when the phone is answered precisely who answered the phone.  While many of us have an outgoing message that identifies that you have reached our number, many also identify clearly that the caller has reached a number of people (such as a whole family or a few roommates) that share that number.   The auto-dialing  machines cannot tell who the phone belongs to when it is answered, and as such, the auto-dialing machine will leave the message regardless.  However, if a collector has a human being make the call, this violation can be avoided.  The collector can determine by the outgoing message whether it is safe to leave a message for the debtor collecting the debt. 

When you're being pursued by debt collectors, you have rights,  and we're here to help.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country. If you feel that you're rights have been violated, please contact us for a free case review.

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