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.