There has been a lot of discussion in the ARM industry over the last few years regarding the technicalities of what exactly counts as “communication” between an agency and a debtor when it comes to voicemail messaging. A recent court ruling from the Sixth Circuit court sheds some additional light on the issue. The plaintiff in the case of Brown v. Van Ru Credit Corporation owed debt on a student loan and was twice contacted about by collection agency Van Ru Credit Corporation. The agency made two attempts to contact the company Brown owns. The first was a letter to Brown’s business asking for payroll information and the second was a voicemail in the company’s general voicemail recorder that stated the following:
“Good morning, my name is Kay and I’m calling from Van Ru Credit Corporation. If someone from the payroll department can please return my phone call my phone number is (877) 419-5627 and the reference number is *****488; again my telephone number is (877) 419-5627 and reference number is *****488.”
The verdict of the case in a 2-1 decision was that the above was NOT communication as it is defined by the FDCPA. The actual statute should help to shed further light on what may seem to be a grey situation. The FDCPA defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” The court’s ruling stated that, “In order to state a claim under 15 U.S.C. § 1692c(b), a plaintiff must plausibly allege, in part, that the defendant “communicate[d], in connection with the collection of any debt, with any person other than the 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.” In other words, because the agency never conveyed or implied information regarding a debt, the contact attempt did not qualify as “communication.” The dissenting justice mentioned that “until the true identity of the reference number is known, I cannot agree with the majority’s determination that the voicemail did not convey ‘any information’ regarding Brown’s loan.”
Voicemails And Compliance:
Anyone working as a debt collection executive has likely run into the issue of voice messages as they relate to FDCPA compliance. It is a common trip wire much in part due to the language of the FDCPA which can present an agency with a Catch-22 situation in which what you can’t do is in conflict with what you must do.
What Debt Collectors Can’t Do:
Section 805(b) states that “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.”
What Debt Collectors Must Do:
Section 806(6) prohibits, with exceptions stated in Section 804, “the placement of telephone calls without meaningful disclosure of the caller's identity.” Additionally Section 807 states that “A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” It further states in Section 807(11) that failure to comply with the following will constitute a violation: “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.”
So What Do You Do?
The combination of the aforementioned statutory language presents an obvious problem for agencies leaving voice messages because it puts in conflict what you are prohibited from doing and what you are positively required to do. It is safe to assume that voice messages (unless you know for sure they are left on an individual’s voicemail) are open to third-party disclosure and so you need to be careful you don’t divest information “in connection with the collection of any debt.” This has led many agencies to leave innocuous messages that fail to uphold the requirements of FDCPA Sections 806(6) and 807(11) such as “This is an important message for [John Smith] from [Adam Johnson]. If you would please return my call at [Phone Number] that would be much appreciated.” These type of messages could be found in court to be “false, deceptive, or misleading representation” of your ultimate purpose in making the call and leave the caller open to class-action litigation. As a consequence many agencies simply do not leave voice messages at all. The problem with opting out of voice messaging in general is that it may significantly hamper your overall collection efforts.
A second option is to use the Zortman message that emerged in 2012 from the case of Zortman v. J.C. Christensen & Assocs., Inc. The Zortman message avoids disclosure of the consumer’s name and positively identifies the agency and the purpose of the call. It reads as follows:
“We have an important message from [company’s name]. This is a call from a debt collector. Please call [company’s telephone number].”
The Minnesota district court ruled in 2012 that the Zortman message did not constitute “communication” much in the same way that the 6th Circuit court ruled in 2015 that the Van Ru message did not constitute communication. The substantial portion of the Van Ru Credit Corporation message was as follows:
“My name is [Name] and I’m calling from [Company]. If someone from the payroll department can please return my phone call my phone number is [Phone Number] and the reference number is [Reference Number].”
Of the two the Zortman message seems more conservative, particularly considering the fact that the dissenting judge in the case of Brown v. Van Ru Credit Corporation suggested remanding the case to a lower court for further discovery. In either case, remember that courts vary in their interpretation of the law and that no voice message is likely to be completely liability proof. That said, both the Zortman and the Van Ru messages have been ruled out as “communication” under the FDCPA in the particular circumstances of their case. They are a good place to start the discussion with legal counsel.