A consumer receives a call on their phone, and from the caller ID they cannot recognize the number. They answer, and the caller states that they are looking for the consumer – that is, they give the name (let’s say John Doe). John Doe says that this is him. The caller goes on to say they want to confirm that he is the right John Doe and demands that Mr. Doe provide his social security number and date of birth. Being even the slightest bit prudent, Mr. Doe says he will not disclose any such information to a stranger on the phone and asks who is calling. The caller says that he or she cannot divulge that information until they get confirmation that this is the person they are looking for. “Well, you found me,” says Mr. Doe, “but I am not about to give you my social security number and date of birth because I don’t know who you are. So who are you?” And the caller replies that unless they can get full confirmation, they will not be divulging anything, and the caller hangs up.
If the caller is a debt collector, has the debt collector violated the Fair Debt Collection Practices Act? The
FDCPA requires that a collector make meaningful disclosure of their identity when calling a debtor
(15 USC §1692d(6)) and that whenever communicating with a debtor, must disclose that the call is coming from a debt collector
(
15 USC §1692e(11)). Therefore, on its face, this appears to be a violation of these two sections of the FDCPA. After all, they called, they spoke to the debtor, and they failed to identify who they are or that they were a debt collector.
However, the collector responds by arguing that they have to make sure they do not divulge any information about the debt to a third party, and therefore, could not disclose anything the person they called until that person clearly identifies themselves. Seems like a reasonable argument, doesn’t it?
No, it doesn’t. The Fair Debt Collection Practices Act is a “strict liability” statute. That means that if it is violated, then the collector is guilty whether they meant to do it or it was an accident. There is but one and only one defense that a collector has in a case under the FDCPA – the bona fide error defense. In this defense, the collector can avoid liability under the FDCPA if they can prove that they had reasonable
procedures in place to prevent this particular violation from happening, and despite having these procedures in place, unintentionally violated the Act.
Thus, the question: What procedure was in place to prevent them from failing to disclose that they were a debt collector and their identity? Assuming the procedure is that the collector must first determine if they are calling the correct person and then make the disclosure, and by determining whether they are
calling the right person, they asked simple identifying questions. Is this a reasonable procedure? Should
they expect that they can call people on the phone, not identify who they are, but demand that they be provided personal information such as a social security number and date of birth? Would any
normal person getting a call from an unidentified stranger willingly divulge their social security number and date of birth? We sincerely hope not! Most people in their right mind are not going to give this information out on the phone to a complete stranger. Thus, this procedure is not a reasonable one.
Surely the collector then argues that they are caught between a rock and a hard place: How can they disclose who they are and that they are calling about a debt if they don’t know who they are calling? Good question, and we can answer it with a question: How did you get the number you called in the first
place? Surely, the number came from somewhere. Usually the original creditor has provided personal and contact information of the consumer. Perhaps the collector did other work to skip trace to locate the consumer. Regardless, the collector was given a name and a number of the debtor, they called the number and asked for the debtor, and the debtor said it was him. At this point, there is ample information before the collector to assume he is talking to the right person, and therefore should make the
disclosures.
Even if the collector is concerned that they are not talking to the right person, they can still identify the name of their company. 15 USC 1692b(1) provides that if a collector is making a call to a third party, and that person asks for the name of the company, the collector can give them that information. Moreover, the
debt collector can confirm an address, or ask if there is a Jr. or Sr. of the same name so as not to confuse father/son. They can find other, less intrusive ways to assure this is the right person. However, to demand, without any identity, that a social security number and date of birth to be given – and expect compliance – is hardly a reasonable procedure designed to prevent them from violating the FDCPA.
It seems that what the collector argues in this scenario is that they have procedures that are in place to make sure they do not make improper third party disclosures – and thus a reasonable procedure to prevent this type of violation of the FDCPA. However, in implementing these procedures, they are causing other aspects of the FDCPA to be violated – namely the failure to disclose the callers identity and purpose. A collector cannot pick and choose which sections of the FDCPA are better to violate. They cannot violate any section. As such, a procedure that is put in place to prevent once section from being
violated that causes another section to be violated, is not a reasonable procedure.
When you’re being pursued by debt collectors, you have rights, and we’re here to help. SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you’re rights have been violated, please contact us for a free case review.