CA Voicemail - No Message

[Spontan]

I previously dealt with Midland Credit before I wised up and decided not to talk to them on the phone anymore. Luckily I did not admit anything or agree to anything.

 

My question is this:

 

They are calling now (as Unknown Number) and leaving a blank voicemail. I can hear all the people in the background (indians) talking but no message is delivered. They do this everytime they call. They call both the wife and my phone. I have been keeping the voicemails, just in case.

 

Do you know if the collection agency is in any type of violation by getting to voicemail then sucking up 30 seconds(at least) of time without any identification or information about contacting them?

 

I tried a forum search but only found something concerning initial contact. As I am n00b, I apologize if this has already been covered. Thanks!

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[PunisherSD]

Basically what's happening is an autodialer is making the calls. When your answering machine picks up, the autodialer interprets that as someone answering. It then plays a message telling the "person" to hold while their call is connected to an operator. The collector then gets a message on their screen that someone has answered the phone, and the calls is transferred to the next available collector. By the time the collector picks up the line, your answering message has already played. Thus the dead air.

 

Using predictive dialing for collection purpose is legal under the following circumstances:

 

Most notably, a consumer debt collector can call a debtor at home using an autodialer. However, the following two acts violate the TCPA (Telephone Consumer Protection Act )

 

if an autodialer is used:

 

• Making a collection call to a cell phone belonging to the debtor or any third party
• Making a collection call to any telephone number not belonging to the debtor

[CreditDespair]

So is that also an FDCPA violation?

[BeachDweller]

Here is the FDCPA regulation:

 

§ 805. Communication in connection with debt collection

[a] COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—

[1] at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antimeridian and before 9 o’clock postmeridian, local time at the consumer’s location;

[2] if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or

[3] at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication.

COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the ex- press permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

[c] CEASING COMMUNICATION. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except—

[1] to advise the consumer that the debt collector’s further efforts are being terminated;

[2] to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

[3] where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.

[d] For the purpose of this section, the term “consumer” includes the consumer’s spouse, parent [if the consumer is a minor], guardian, executor, or administrator.

[BeachDweller]

So is that also an FDCPA violation?

I saw no violation of the FDCPA section applicable; perhaps you can find one.

[PunisherSD]

Correct, the only applicable law from what I gather is the TCPA (Telephone Consumer Protection Act )

Of course, if the OP sends a cease and desist letter, it would be a FDCPA violation.

Edited March 9, 2011 by PunisherSD

[mysticspirit25]

So is that also an FDCPA violation?

I saw no violation of the FDCPA section applicable; perhaps you can find one.

I disagree 100%, there is a FDCPA violation:

 

1692e(11), failure to state this is from a debt collector

 

Since 2006, Courts have recognized that a debt collector violates the FDCPA when a debt collector leaves a message and fails to disclose that the message is from a debt collector. See Foti > v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643, 653 (S.D.N.Y. 2006); Costa v. Nat'l Action Fin. Servs.., 634 F. Supp. 2d 1069, 1074 (E.D. Cal. 2007); Edwards v. Niagara Credit Solutions, 586 F. Supp. 2d 1346 (N.D. Ga.2008); and Anchondo v. Anderson Crenshaw & Assoc's., 583 F. Supp. 2d 1278 (D.N.M.2008)...a violation of 1692e(11).

 

they are leaving a message, albeit a blank one. But you need more than one "message" or else they will claim bona fide error. More than one, and pass go and collect you $1000.

Edited March 9, 2011 by mysticspirit25

[Conflictxnj]

Correct, the only applicable law from what I gather is the TCPA (Telephone Consumer Protection Act )

 

Of course, if the OP sends a cease and desist letter, it would be a FDCPA violation.

 

 

 

Close but no cigar? This was obviously an auto-dialer but I don't think it'll fall as a violation of the TCPA. Opinion?

 

 

 

I got a call on my cell phone today which says...

Live Person: "This message is for conflictxnj by continuing to listen to this message you acknowledge you are conflictxnj and you are not listening to this message in the presence of others"

She spoke really fast and was hardly comprehendible.

 

Then there's an automated message about an "important business matter"

[jack1212]

IMO, if they spoke to no one, and left no message, then i just can't see that violating the FDCPA.

[Spontan]

I am not 100% certain it is an autodialer, but it is a possibility. The CA person on the other end gets on the line and its my voicemail or my wifes cell voicemail. Then 30 seconds on listening to them talk.

 

As OP is new, I am working to clean away some personal information on the CRA for the wife. I got the CMRRR already sent and I am just waiting for return information to see what I need to do next. I did not want to start doing too much hardball yet. Maybe I should send a C&D letter for the phone and request they contact me only via mail in the future.

 

I am just looking for ways to stack up what I can against them. Preparing for victory.

[RadioRob]

IMO, if they spoke to no one, and left no message, then i just can't see that violating the FDCPA.

 

+1

 

If you did not speak to someone, you could not have told them what it was in regards to. If they would have left a message on your VM saying they were a CA calling to collect a debt, THEN it would be a violation. By saying nothing, they don't violate the law.

[RadioRob]

Now... that being said... my personal suggestion is to be proactive regarding it. Send them a DV letter. Check your reports. Have they hard/soft pulled your file? Make them show their hand and work from there. If you have questions, feel free to ask. We're here to help.

[BeachDweller]

IMO, if they spoke to no one, and left no message, then i just can't see that violating the FDCPA.

That is exactly my point as well. There was no violation because nothing was said. When nothing is said, you don't have to say nothing was said from a debt collector, total nonsense.

[Lian]

My advice would be that the next time they call, DO answer the phone. It would, in my opinion, be to your benefit. It is not always bad to talk to a debt collector, providing you dont discuss the merits of their collection.

What do you gain by picking up the phone? They are required, in their first communication with you, to clearly state that they are calling in an attempt to collect a debt with you. FDCPA 807(11). That constitutes an "initial communication" under FDCPA 809(a), which triggers their requirement to send you a formal collection (dunning) notice within 5-days of that communication. An easy way to possibly gain an FDCPA violation, and it costs you nothing. I would simply tell them that you wont discuss the merits of their call until they first send you a formal collection notice, and terminate the call. Then there is no issue about whether their call is an intial communication.

[najaboy]

So is that also an FDCPA violation?

I saw no violation of the FDCPA section applicable; perhaps you can find one.

I disagree 100%, there is a FDCPA violation:

 

1692e(11), failure to state this is from a debt collector

 

Since 2006, Courts have recognized that a debt collector violates the FDCPA when a debt collector leaves a message and fails to disclose that the message is from a debt collector. See Foti > v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643, 653 (S.D.N.Y. 2006); Costa v. Nat'l Action Fin. Servs.., 634 F. Supp. 2d 1069, 1074 (E.D. Cal. 2007); Edwards v. Niagara Credit Solutions, 586 F. Supp. 2d 1346 (N.D. Ga.2008); and Anchondo v. Anderson Crenshaw & Assoc's., 583 F. Supp. 2d 1278 (D.N.M.2008)...a violation of 1692e(11).

 

they are leaving a message, albeit a blank one. But you need more than one "message" or else they will claim bona fide error. More than one, and pass go and collect you $1000.

Your disagreement is 100% misguided. A violation of 15 USC 1692e(11) is dependent on there actually being a communication as defined by 15 USC 1692a(2). If there was no message and no information whatsoever conveyed, the assertion that it was a violation holds no water. For thre to be a violation, the requisite elements of said violation need to be present.

 

(2) The term “communication” means the conveying of information regarding a debt directly or indirectly to any person through any medium.

 

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

[Spontan]

Looking at a small sniplet from the Foti case, the only thing that I could think of is that their behavior is abusive or harassment at most. I have been keeping the voice mails, but I doubt this would be a useful tactic.

 

Additionally, it “‘prohibits unfair or unconscionable collection  methods, conduct which harasses, oppresses or abuses any debtor, and the  making of any false, misleading, or deceptive statements in connection  with a debt, and it requires that collectors make certain disclosures.’”  [i]Foti v. NCO Financial Systems, Inc.[/i], 424 F.Supp.2d 643, 653 (S.D.N.Y. 2006) 

 

To answer a few questions, I do see where they did request information on her credit on 11/2010 and again on 2/2011. So it looks like they already have credit information from before getting it all cleaned up.

 

I think at this point I will just send a debt validate letter as well as a C&D for them to just mail me for further correspondence and hope they mess something up.

 

I appreciate the advice so far. Thank you.

[Bobbydebt]

Picking out violations at this point is premature, IMO. You "think" it is Midland because you have a hunch, that does not prove that Midland called you.... At this point you have no company to hold accountable for any type of violation.

[blackangst]

Picking out violations at this point is premature, IMO. You "think" it is Midland because you have a hunch, that does not prove that Midland called you.... At this point you have no company to hold accountable for any type of violation.

 

This.

[Spontan]

This is true. Thanks.

[CreditDespair]

So here is a question - I have a collector calling me like 3-4 times a day on my cell. Leaving blank messages. The first time they called (two weeks ago) I answered and an autodialer said "we are calling for creditdespair. if this is creditdespair, press one. otherwise call us back at this number."

 

so is it a violation to call me from an autodialer to my cell? I have received no written communication from them and they keep calling form local area codes.

 

What would be my best move?

[blackangst]

So here is a question - I have a collector calling me like 3-4 times a day on my cell. Leaving blank messages. The first time they called (two weeks ago) I answered and an autodialer said "we are calling for creditdespair. if this is creditdespair, press one. otherwise call us back at this number."

 

so is it a violation to call me from an autodialer to my cell? I have received no written communication from them and they keep calling form local area codes.

 

What would be my best move?

 

A collector may autodial a cell per FCC ruling a few years ago

 

http://forum.freeadvice.com/debt-collections-84/collectors-may-call-cell-phones-autodialers-prerecorded-messages-389160.html

 

Collectors may use predictive auto-dialers and prerecorded calls to contact consumers on their mobile phones, the Federal Communications Commission announced in a ruling handed down late Friday.

 

Prior to this ruling, the Telephone Consumer Protection Act (TCPA) had generally prohibited auto-dialer and prerecorded calls to a mobile phone unless there was prior consent by the consumer. The ruling goes into effect immediately and applies to collectors, debt purchasers, and creditors, according to collection industry trade group ACA International.

[CreditDespair]

Oh that sucks.

[Bobbydebt]

So here is a question - I have a collector calling me like 3-4 times a day on my cell. Leaving blank messages. The first time they called (two weeks ago) I answered and an autodialer said "we are calling for creditdespair. if this is creditdespair, press one. otherwise call us back at this number."

 

so is it a violation to call me from an autodialer to my cell? I have received no written communication from them and they keep calling form local area codes.

 

What would be my best move?

 

Look for Dolemites thread on the TCPA.

 

In a nutshell; a CA may auto dial your cell if you gave the OC express permission to call your cell. However, you can write a letter revoking that permission.

[CreditDespair]

So what should I do next time they call? Answer? I have no idea who the OC is.