Debt Collectors Must Disclose Identity
A consumer receives a call on their phone,
and from the caller ID they cannot
recognize the number. They answer, and the caller states that
they are looking for the consumer – that is, they give the name
(let’s say John Doe). John Doe says that this is him.
The caller goes on to say they want to confirm that he is the right
John Doe and demands that Mr. Doe provide his social security
number and date of birth. Being even the slightest bit
prudent, Mr. Doe says he will not disclose any such
information to a stranger on the phone and asks who is
calling. The caller says that he or she cannot divulge
that information until they get confirmation that this is the
person they are looking for. “Well, you found me,” says Mr.
Doe, “but I am not about to give you my social security number and
date of birth because I don’t know who you are. So who are
you?” And the caller replies that unless they can get full
confirmation, they will not be divulging anything, and the caller
hangs up.
If the caller is a debt collector, has the debt collector
violated the Fair Debt Collection Practices Act? The
FDCPA requires that a collector make meaningful
disclosure of their identity when calling a debtor
(15 USC §1692d(6)) and that whenever communicating with a
debtor, must disclose that the call is coming from a debt collector
(
15 USC §1692e(11)). Therefore, on its face, this appears
to be a violation of these two sections of the FDCPA. After
all, they called, they spoke to the debtor, and they failed to
identify who they are or that they were a debt
collector.
However, the collector responds by arguing that they have to
make sure they do not divulge any information about the debt to a
third party, and therefore, could not disclose anything the person
they called until that person clearly identifies themselves.
Seems like a reasonable argument, doesn’t it?
No, it doesn’t. The
Fair Debt Collection Practices Act is a “strict liability”
statute. That means that if it is violated, then the
collector is guilty whether they meant to do it or it was an
accident. There is but one and only one defense that a
collector has in a case under the FDCPA – the bona fide error
defense. In this defense, the collector can avoid liability
under the FDCPA if they can prove that they had reasonable
procedures in place to prevent this particular violation from
happening, and despite having these procedures in place,
unintentionally violated the Act.
Thus, the question: What procedure was in place to prevent
them from failing to disclose that they were a debt collector and
their identity? Assuming the procedure is that the collector
must first determine if they are calling the correct person and
then make the disclosure, and by determining whether they are
calling the right person, they asked simple identifying
questions. Is this a reasonable procedure? Should
they expect that they can call people on the phone, not identify
who they are, but demand that they be provided personal information
such as a social security number and date of birth? Would any
normal person getting a call from an unidentified stranger
willingly divulge their social security number and date of
birth? We sincerely hope not! Most people in
their right mind are not going to give this information out on the
phone to a complete stranger. Thus, this procedure is not a
reasonable one.
Surely the collector then argues that they are caught between a
rock and a hard place: How can they disclose who they are and
that they are calling about a debt if they don’t know who they are
calling? Good question, and we can answer it with a
question: How did you get the number you called in the first
place? Surely, the number came from somewhere. Usually
the original creditor has provided personal and contact information
of the consumer. Perhaps the collector did other work to skip
trace to locate the consumer. Regardless, the collector was
given a name and a number of the debtor, they called the number and
asked for the debtor, and the debtor said it was him. At this
point, there is ample information before the collector to assume he
is talking to the right person, and therefore should make the
disclosures.
Even if the collector is concerned that they are not talking to
the right person, they can still identify the name of their
company.
15 USC 1692b(1) provides that if a collector is making a call
to a third party, and that person asks for the name of the company,
the collector can give them that information. Moreover, the
debt collector can confirm an address, or ask if there is a Jr. or
Sr. of the same name so as not to confuse father/son. They
can find other, less intrusive ways to assure this is the right
person. However, to demand, without any identity, that a
social security number and date of birth to be given – and expect
compliance – is hardly a reasonable procedure designed to prevent
them from violating the FDCPA.
It seems that what the collector argues in this scenario is that
they have procedures that are in place to make sure they do not
make improper third party disclosures – and thus a reasonable
procedure to prevent this type of violation of the FDCPA.
However, in implementing these procedures, they are causing other
aspects of the FDCPA to be violated – namely the failure to
disclose the callers identity and purpose. A collector
cannot pick and choose which sections of the FDCPA are better to
violate. They cannot violate any section. As such, a
procedure that is put in place to prevent once section from being
violated that causes another section to be violated, is not a
reasonable procedure.
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.