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Debt Collectors Leaving Messages

Can a debt collector leave a message on your answering Past _due _imgmachine or voice mail?  The answer really depends on a few factors.  The Fair Debt Collection Practices Act ("FDCPA") limits the conduct of debt collectors and their collection efforts, how the collector can contact you and what is said when trying to collect the debt.   The FDCPA does not specifically address answering machines or voice mails.  However, from a review of the language of the FDCPA, we can find how the law operates and how consumers are protected from these messages.

At the outset, if your answering machine is private and no one can hear the message, then the collector has likely not violated that part of the FDCPA that deals with third party disclosure of the debt.   However, if the machine is a family machine or shared with other individuals, the collector runs into a problem as to what message, if any, can be left. 

Under the FDCPA, the statute requires the collector to provide a clear and meaningful disclosure of its identity and purpose of the call.  The collector must state its name and the company it works for, that the communication is an attempt to collect a debt and that any information obtained will be used for collection purposes.   Thus, any message left on a voicemail or answering machine must make those disclosures.  If the answering machine is shared with others, however, then making that disclosure will violate the FDCPA because the others that hear the message will have been disclosed the debt.   If a message is left that does not make the disclosure, then the FDCPA is violated as well.  Therefore, it is usually better for the collector to just hang up. 

Likewise, if the collector leaves harassing or misleading messages on your machine it may also have violated the law. 
Several Federal Courts have addressed this topic and handed down decisions finding FDCPA violations for leaving messages on answering machines and/or voicemail.  In Branco v. Credit Collection Services Inc., the debt collector left a message on the consumer's parents' answering machine on five separate occasions.   10-cv-349 (E.D. California) (April 4, 2012).  The message stated,

"This is for Travis Branco.  If the intended party cannot be reached at this number, please call 800-998-5000, and we will cease further attempts to this number.  If you are not the intended party, please hang up at this time.  This message contains private information and should not be played in a manor where it can be heard by others. …(music)… This call is from CCS, Credit Collection Services.  This is an attempt to collect a debt and any information obtained will be used for that purpose.  For your privacy protection, please visit our secure website at www.warningnotice.com to access your personal account information. Your file number is 05036201574."

The outgoing message on the answering machine stated, "You have reached the Branco residence. Please leave a message and phone number so that Steve, Sari, or Travis may return your call."  The answering machine did not allow an individual listening to skip the message prior to the beep so a human caller would hear the machine belonged to a family and not simply the alleged debtor.  The alleged debtor's mother heard the message and relayed the information to her son, who was not even living at home with his parents at the time.  The District Court for the Eastern District of California found that the plaintiff's mother had no obligation to refrain from listening to a message in her own home, simply because the message was for another person.

If you are having problems with a debt collector and are interested in our assistance or would like a free case review, contact SmithMarco P.C.

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