FDCPA question

[arameth]

Per FDCPA 807.11:

 

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.

 

 

So, with that being said, when a CA leaves a voicemail or message on an answering machine, do they need to state that they are attempting to collect a debt? Second, does saying "if you are not XXX XXX, please hang up now" exempt them from restictions regarding disclosure to 3rd parties? Also, if there are subsequent communications via telephone, does the CA have to repeat the mini miranda each and every time? For example, if I call them back, should they not repeat their "attempting to collect a debt, any information, etc etc" disclosure language?

 

Thanks!

[jazbob]

Per FDCPA 807.11:

 

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.

 

 

So, with that being said, when a CA leaves a voicemail or message on an answering machine, do they need to state that they are attempting to collect a debt? Second, does saying "if you are not XXX XXX, please hang up now" exempt them from restictions regarding disclosure to 3rd parties? Also, if there are subsequent communications via telephone, does the CA have to repeat the mini miranda each and every time? For example, if I call them back, should they not repeat their "attempting to collect a debt, any information, etc etc" disclosure language?

 

Thanks!

 

Only in the initial communication do they have to state the mini-miranda. They cannot leave a message on an answering machine stating that they are attempting to collect a debt, ever.

 

As far as the "if you are not xxx xxx" thing, that it there way of creating a defense against the 3rd party clause. I don't know that it's ever been challenged in court, but I think they would have a pretty good case that they took reasonable precautions to avoid 3rd party contact.

 

-jaz

[arameth]

Per FDCPA 807.11:

 

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.

 

 

So, with that being said, when a CA leaves a voicemail or message on an answering machine, do they need to state that they are attempting to collect a debt? Second, does saying "if you are not XXX XXX, please hang up now" exempt them from restictions regarding disclosure to 3rd parties? Also, if there are subsequent communications via telephone, does the CA have to repeat the mini miranda each and every time? For example, if I call them back, should they not repeat their "attempting to collect a debt, any information, etc etc" disclosure language?

 

Thanks!

 

Only in the initial communication do they have to state the mini-miranda. They cannot leave a message on an answering machine stating that they are attempting to collect a debt, ever.

 

As far as the "if you are not xxx xxx" thing, that it there way of creating a defense against the 3rd party clause. I don't know that it's ever been challenged in court, but I think they would have a pretty good case that they took reasonable precautions to avoid 3rd party contact.

 

-jaz

 

Thanks for responding! At first I read this the same way you did...thought it was only initial. But what about that last part about subsequent communications (with exception to legal pleadings)?

[jazbob]

Yes, but there is not specific language required for the subsequent communications. If they talk TO YOU, then yes they must identify themselves as debt collectors. If they leave a message, talk to someone else in the house, talk to your best friends grandmother's sister, then they CANNOT identify themselves as debt collectors.

 

-jaz

[Bobbydebt]

§ 806. Harassment or abuse 15 USC 1692d

 

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

 

(6) Except as provided in section 804, the placement of telephone calls without meaningful disclosure of the caller’s identity.

 

§ 807. False or misleading representations 15 USC 1692e

 

(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.

 

 

Debt collectors are damned if they leave a voice message for a debtor.I dont understand why they continue to leave voice messages.

 

A collector is in a catch 22 when leaving VMs. They can either:

 

1. Leave a message that conforms to 3rd party disclosure, but violates the debtors rights to meaningful disclosure of the caller.

 

2. Leave a message that conforms with meaningful disclosure of the caller for the debtor, but (if heard by a 3rd party) violates 3rd party disclosure laws.

 

Either way they stand a pretty good chance of violating the FDCPA. Now, I dont know how excited an attorney would get over one VM, but it is a violation. How the courts in your area ruled on previous similar complaints would be the key. Search some case law and find opinions from your district court regarding similar FDCPA violations.

[Bobbydebt]

Yes, but there is not specific language required for the subsequent communications. If they talk TO YOU, then yes they must identify themselves as debt collectors. If they leave a message, talk to someone else in the house, talk to your best friends grandmother's sister, then they CANNOT identify themselves as debt collectors.

 

-jaz

 

§ 803. Definitions 15 USC 1692a

 

As used in this title—

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

 

Communication includes the indirect contact through any medium, IE leaving a voice mail. Therefore, requiring a debt collector to include the information in not only the initial communication, but also the subsequent communication.

Edited April 13, 2010 by Bobbydebt

[jazbob]

Yes, but there is not specific language required for the subsequent communications. If they talk TO YOU, then yes they must identify themselves as debt collectors. If they leave a message, talk to someone else in the house, talk to your best friends grandmother's sister, then they CANNOT identify themselves as debt collectors.

 

-jaz

 

§ 803. Definitions 15 USC 1692a

 

As used in this title—

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

 

Communication includes the indirect contact through any medium, IE leaving a voice mail. Therefore, requiring a debt collector to include the information in not only the initial communication, but also the subsequent communication.

 

Yes, the conveying of information regarding a debt. The simple fact that they leave a voice mail does not create a violation. That's why they always state that it is an "important business matter" and not "an attempt to collect a debt". If they leave a voice mail stating that they are "NCO Financial Systems" and to call 1-800-WE-R-SCUM then they have not violated any part of the FDCPA. If they leave a message saying ANYTHING regarding the debt then yes they are in violation.

 

-jaz

[arameth]

Gotcha...so voicemail/answering machine is OK for them, so long as they do not say anything regarding "debt" (instead, "serious business matter", etc.). I'm still curious about a couple of recordings I have from one CA, who basically said "hang up now if you're XXX XXXX"...and then mentioned debt collection.

 

As for live phone calls, I have a few recordings now where they totally breeze past any of the necessary language. Keeping in my back pocket for now.

 

Thanks!

[NeverQuietHere]

NO. They HAVE to say that they are attempting to collect a debt. See Foti v NCO to begin with. If you do a search on here for Telephone violations, you will see plenty of threads on it. I had 8 cases of these kind of calls. Saying it's a business matter is a "potential" violation from what I understand. It's misleading.

 

The fact is, they do NOT have to leave a message. If they DO leave a message, they have to state that they are a debt collector. HAVE TO. but by doing this, they are subjecting themselves to 3rd party disclosure. It's a violation if they don't say it. It's a violation if they do say it and someone hears it.

 

There are at least 4 cases that deal with this. Bobbydebt--great job with the info.

[NeverQuietHere]

Foti Vs NCO Financial Systems, Belin Vs Liton Loan Services, and Leyse Vs Corp Collection Services, Berg v. Merchant (deals with 3rd party disclosure)

 

If you read the Berg case, they specifically state on the message "if you are not so and so, hang up" or something to that affect.

 

http://www.buckleykolar.com/documents/Berg_v_Merchants.pdf

 

Also, see FTC v Check Enforcement.

 

This is exactly why when I sent the CA a 623, I put in the letter that calling my number and leaving messages could possibly be 3rd party violations as we are not the only ones who have access to our answering machine and phone as Dh's mom and dad are here often. Guess what? Still got 2 or 3 calls AFTER the CA got my letter.

Edited April 13, 2010 by NeverQuietHere

[arameth]

Thanks!...and more info just got posted that is relevant:

 

http://creditboards.com/forums/index.php?showtopic=414226

[NeverQuietHere]

Yep, I bumped it up, while doing searches on cases. I have settled quite a few cases with "possible" phone violations. wink wink. Suits were filed...then closed.

 

Thanks!...and more info just got posted that is relevant:

 

http://creditboards.com/forums/index.php?showtopic=414226

[sedric1]

ahh this reminds me of the check i received from nco due to some vm issues we had....

[Jen23514]

ttt

[Mdavis84]

I got a VM today that said

If you are not xxxxx please hang up now and then after a few seconds it said this is Integrity Financial partners attempting to collect a debt.

 

Would that be a violation if i'm understanding this correct??

[Dolemite_73]

I got a VM today that said

If you are not xxxxx please hang up now and then after a few seconds it said this is Integrity Financial partners attempting to collect a debt.

 

Would that be a violation if i'm understanding this correct??

I say yes....potential 3rd party disclosure....Foti v. NCO really puts CA's and JDB's in a Catch-22. For a CA to leave a message with Foti hanging over their heads is stupid....

Edited August 26, 2010 by Dolemite_73

[Bobbydebt]

The reason why a CA is screwed when leaving VM's is because a CA may not violate one aspect of the FDCPA in order to comply with another. A CA either complys with Foti or they comply with 3rd party disclosure aspect of the FDCPA, but it is impossible to do both.

[Jen23514]

The reason why a CA is screwed when leaving VM's is because a CA may not violate one aspect of the FDCPA in order to comply with another. A CA either complys with Foti or they comply with 3rd party disclosure aspect of the FDCPA, but it is impossible to do both.

 

beautiful! isn't it???

 

http://creditboards.com/forums/index.php?showtopic=414226

 

Arguing that you broke the law in order to comply with it is not, apparently, the way to win an argument before the 11th U.S. Circuit Court of Appeals:

http://www.law.com/jsp/article.jsp?id=1202..._Comply_With_It

 

TCPA:

http://creditboards.com/forums/index.php?showtopic=429670

 

also, check your state laws for additional consumer protections.