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Amending FDCPA to Exempt Collectors for Leaving Messages

On Behalf of | Jan 5, 2012 | Consumer Protection

I was reported that U.S. Rep. Barney Frank (D-Mass.) introduced
legislation Tuesday that appears to directly address liability
issues that arise when debt collectors leave voice messages for
consumers concerning a debt on their answering machines or cell

The bill, H.R. 4101, is currently titled the “Fair Debt
Collection Practices Clarification Act of 2012.” The bill
aims to specifically exempt debt collectors from liability when
leaving voice messages.   The introduction of the bill
states its purpose:To amend the
Fair Debt Collection Practices Act
to exempt a debt collector
from liability when leaving certain voice mail messages for a
consumer with respect to a debt as long as the debt collector
follows regulations prescribed by the Bureau of Consumer Financial
Protection on the appropriate manner in which to leave such a
message, and for other purposes.

The bill appears to put the onus on the Consumer Financial
Protection Bureau (CFPB) to come up with language that is
appropriate for debt collectors to use in a voice mail.  The
bill states that:A debt collector may leave messages for a consumer in
connection with the collection of a debt on the consumer’s
answering machine, voice messaging system, or other similar device,
including in an initial communication with the consumer, so long as
the message complies with regulations prescribed by the Bureau to
ensure the preservation of the privacy and other rights granted to
the consumer.

How are they going to reconcile this bill with the already
exiting Fair Debt Collection Practices Act when the Act already
covers this scenario?    The court in Edwards v.
Niagara Credit Solutions, 584 F.3d. 1350 (11th Cir. 2009)
already touched upon this when it stated that “the Act does not
guarantee a debt collector the right to leave answering machine
messages.”  It was also well covered in Berg v. Merchants
Associated Collection Division, 586 F.Supp.2d 1336 (FL-SD
2008) where the court stated, “Debt collectors have no entitlement
to use automated messages to reach debtors, and courts have no
obligation to harmonize different provisions of the FDCPA so that
debt collectors may use an inherently risky method of
communication.”    It appears now that Rep. Frank
wants to re-write the FDCPA to give collectors the right to leave a
message, and thus render moot the sections of the FDCPA that deal
with third party communications.
1692b and 1692c cover communications to third
parties.  In summary, those sections provide that it is not
allowed unless seeking location information.  And when
obtaining location information, the collector must state that the
purpose of the call is to obtain location information. 
Moreover, and most importantly, the collector cannot disclose to a
third party that the person they are seeking owes a debt. 

Compare this with the mandates of §1692e(11) of the FDCPA and we
see where the collectors are having a problem.  That section
states that in every communication, the collector must disclose
that the communication is coming from a debt collector.  If
the collector leaves a message stating that they are looking for a
certain debtor, and the message is left on that debtor’s phone,
then the collector must have disclosed that the purpose of the call
was to collect a debt.  However, if another member of that
person’s household that is not a spouse hears that message, then
the collector would run afoul of §1692b(2) by disclosing that the
person owed a debt.  This, the collectors are claiming, they
need protection from.  Believing that they should have an
absolute right to leave people messages, collectors want the
passage of this new bill to ensure they can do so. 

The fact is, Congress had this law right the first time, and the
courts have been properly interpreting it.  Quite simply, if a
collector is calling a phone and wants to leave a message, if the
outgoing message does not make it clear to them that the phone
belongs to that single debtor, they should not leave a
message.  It would be very interesting to see what kind of
language the CFPB could come up with that covers the scenario that
protects the privacy of debtors as their privacy surely comes
before the collectors unwritten and unconfirmed right to leave