Debt Collectors like to call their debtors and leave messages on their home phones, cell phones and work phones. Often, these calls get the collectors into hot water. Sometimes that message does not properly disclose that the call is an attempt to collect a debt (as required by 15 U.S.C. §1692e(11)) and sometimes the call does disclose the debt, but the message is one that is heard by third parties (in violation of 15 U.S.C. §1692b(2)).
What happens when the debt collector just hangs up on the recording? Or, if the collector says nothing but leaves dead air space? This latter scenario was recently addressed by a Federal court in Texas where it was found that such a message is not a “communication” under the Fair Debt Collection Practices Act, and therefore could not violate the law.
In the recent case of Garza v. MRS Associates, the debtor claimed that MRS had called and left a 20 seconds of dead air on the voicemail. The debtor alleged that this dead air message did not properly disclose that the call was coming from a debt collector and did not properly disclose the identity of the caller (also required under 15 U.S.C. §1692d(6)). The court disagreed and found that the dead air was not a “communication” under the FDCPA. In order for the conduct of collections to be actionable, there must be a communication from the collector. The court stated, “In short, persuasive case law supports the idea that a voicemail is a communication only when it conveys more information than could be gathered from a missed call. Silence does not meet this standard. Accordingly, based on the lack of a communication and because disclosure is not required on a blank voicemail as discussed above, plaintiff’s claim must fail.”
Many consumers call and complain that they get hang ups from collectors. While a hang up, in and of itself, may not be actionable under the FDCPA, a vast multitude of hang-ups done with the intent to annoy or harass the consumer may very well be. However, we have also learned here that leaving a 20 second message where no words are spoken will also not amount to a violation of the FDCPA.
Stop Debt Collector Harassment Now: 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.