Does a debt collector that calls a third party in order to
seek location information of the consumer violate
the
Fair Debt Collection Practices Act when it reveals to the
person called that they were listed as a reference?
When I first heard the recording of a collector making contact
with a relative of the consumer and tell that person they were
listed as a reference, I did not think too much of it. But on
further review, this comment, as innocuous as it may sound,
actually can be a violation of the
FDCPA.
We start with the premise that contacting third parties in order
to seek location information of the consumer is perfectly legal
provided that (1) there is no disclosure to this third party that
the consumer owes a debt, and (2) that there be only one call to
that third party – unless it is believed that the information given
was incorrect. These provisions are found at
15 U.S.C. §1692b(2) and (3). Surely, telling someone they
are a reference does not disclose the debt. However,
looking at the paragraph that comes before these two,
15 U.S.C.§1692b(1) sheds light on the problem with this
statement.
1692b(1) of the FDCPA states that when a debt collector
communicates “with any person other than the consumer for the
purpose of acquiring location information about the consumer
shall.. state that he is confirming or correcting location
information concerning the consumer, and, only if expressly
requested, identify his employer. ” When it comes to
interpreting a statute, each and every word is to be considered and
given its plain meaning. This section obligates the collector
to state that he is confirming location information, and limits the
collector from being able to even say who he is working for.
It would seem that Congress, in enacting this legislation, was
concerned with collectors going beyond simply trying to find out
how to reach the consumer.
By telling the person called that they were listed as a
reference, many people would immediately become curious.
Reference for what? It may cause the person called to inquire
into what they were listed as a reference. Of course, the
collector being unable to make that disclosure only causes more
curiosity by telling that person that they cannot say.
The possibilities of what can happen at this point increase.
Aside from causing the person called to pry into the collector, it
can cause that person called to call the consumer. It may
cause some confrontation between consumer and alleged reference
whereby the person listed as a reference may not appreciate getting
these calls.
Moreover, what if that person is not listed as a
reference? Then the collector made a
misrepresentation. It is rare that a collector actually
has all information from a collector as to who were the references
for a particular loan. Chances are more likely that the
collector received the information by performing a skip
trace. As such, telling that person that they are a
reference, when they are not, which may cause that person to take
exception to being a reference and have a confrontation with the
consumer is the kind of thing the FDCPA seeks to avoid. Of
great importance to Congress in the FDCPA is the privacy rights of
individuals who may owe debts. This calling tactic is clearly
one that potentially breaches those rights.
When you’re being pursued by debt collectors, you have
rights, and we’re here to help. SmithMarco, P.C. has been protecting
consumer rights since 2005. If you feel that you’re rights have
been violated, please contact us for a
free case review.