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.