Judge Rules for Collection Agency in Voicemail Case; Foti Compliance Evolving

  • Email
  • Print
  • Printing Articles

    1. Click here to print!
    2. ...or print directly from your browser by choosing File > Print... from the menu or by pressing [Ctrl + P]. Our printer-friendly stylesheet will make sure extraneous website stuff isn't printed.
    3. You're done!

    Close this message.

  • Comments
  • RSS

A recent case in Minnesota over a voicemail left by a debt collector provided yet another entry in the ongoing saga over the ARM industry’s use of messages in the wake of the Foti ruling. A positive ruling for the collection agency, this case may have provided some Foti-compliant language for collectors to use.

The case, Zortman v. J.C. Christensen & Associates, Inc., was decided May 2 in United States District Court, Minnesota District. In it, a consumer alleged that a debt collector working for J.C. Christensen (JCC) left a voicemail that was heard by the plaintiff’s children. Subsequently, she sued JCC for a third party disclosure violation of the Fair Debt Collection Practices Act (FDCPA).

Zortman incurred a debt on a Kohl’s Department Store credit card. The debt of $648.39 went unpaid and was referred to JCC for collection. JCC was provided with two phone numbers, one listed as a work number and one as a home number. The work number was, in fact, a cell number. JCC called that number and left the following message:

“We have an important message from J.C. Christensen & Associates. This is a call from a debt collector. Please call 866-319-8619.”

The plaintiff loaned her phone to her children, who heard the message and told their mother. She was forced to admit to the children that the family was under financial stress. This led to emotional distress and loss of sleep, so Zortman filed suit against JCC.

JCC eventually moved for summary judgment, which is what the court was considering. The company argued that a judgment against it would effectively prohibit debt collectors from using telephones to collect, a right expressly guaranteed by the FDCPA. JCC noted that the message did not identify a consumer nor did it identify a specific debt. It merely disclosed any information that would have been available on a caller-ID log and an Internet search, while complying with the mini-Miranda requirement under the FDCPA.

The judge agreed, noting, “In view of the technical reality that—short of requiring debt collectors to block their numbers—it is virtually impossible to use a telephone without revealing directly or indirectly that a debt collector is calling,” it was ruling that the message was not a “communication” under the FDCPA, and thus, not a violation.

The important turn here was that JCC did not convey information regarding a debt. Since anyone could have reasonably looked up the number left on the phone’s call log and determined that the message was indeed from a debt collector, JCC did not intentionally disclose any specific information about the debt or debtor.

This is an interesting development in the Foti matter. It should be noted that this case was decided by a single district judge and it is not known whether the plaintiff will appeal.

Also of note, the plaintiff in the case worked for a separate debt collection agency, according to the decision. With so many employed by the ARM industry, it’s bound to happen; collectors are consumers as well, after all. But it’s still interesting that a consumer in a potentially pivotal case was, in fact, a part of the collection industry.

 

Continuing the Discussion

We welcome and encourage readers to comment and engage in substantive exchanges over topics on insideARM.com. Users must always follow our Terms of Use. Also know that your comment will be deleted if you: use profanity, engage in any kind of hate speech, post an incoherent or irrelevant thought, make a point of targeting anyone, or do anything else we find unsavory. Your comment will be posted under your current Display Name, shown below. If you'd like to change your Display Name, you must update it on the My Profile page.

  • avatar Bill Lindala says:

    This is good news bad news. If it wasn’t a “communication” by definition, then leaving the mini-miranda IS a violation, since this is basically a half Foti message and it IS then third party disclosure.

    If it isn’t a violation based on not being a communication, then there is no need to leave anything but a collector’s name and phone number.

    This whole message thing needs to be all or nothing, not just bits and pieces like this.

  • avatar Newport Queen says:

    It would be nice to go back to the days of leaving a message that states “This is so and so. Please return our call at 123567890″ instead of the long winded Foti.

    I do believe this wasn’t third party disclosure because the message did not specifically state that the call was for the plaintiff, therefore not identifying her as a debtor only that the call was from a debt collector. Even the least sophisticated consumer could reasonably agree that perhaps the call was made to a wrong number.

  • avatar Bill Lindala says:

    I think the biggest problem, is that a ruling like this leaves the topic open for debate, because it’s not clear.

    Clarity on all of these things is what is needed, but I’m not going to hold my breath.

  • avatar paybill says:

    A collector suing a debt collection agency is sickening to me. Glad she lost. I wish she also had to pay attorney fees for the agency, but unfortunately that isn’t how it works, however it would solve a majority of the litigation issues in our industry if the loser had to pay the winner’s fees.

  • avatar Bill Lindala says:

    I just found an article on that:

    http://fdcpadefense.blogspot.com/2010/03/how-to-combat-frivolous-fdcpa-lawsuits.html

    Kind of interesting.

  • avatar Newport Queen says:

    Bill. I agree. Its hard to be compliant with unclear laws. I’m guessing she will go back to her agency who will now use the same type voice message and possibly get sued and loose.

  • avatar Bill Lindala says:

    Newport, I hate to laugh at that, but that’s funny.

    I was friends with a sales rep at JCC and I met the owner on a few occasions. It’s been awhile, but they were always a decent, compliant agency, so I was surprised to see their name in the article.

  • avatar Sisko says:

    I look at this as a step in the right direction because the original Foti decision was clearly wrong. Section 803(2) tells us that it’s not a communication unless the debt collector actually talks about a debt. Calling up to chit chat about the weather wouldn’t be considered a communication. So neither is calling and identifying ourselves, or calling to identify who we want to speak with, or leaving our phone number. This judge seems to get it, that unless there’s some sort of account information provided then it’s not a communication. In fact, it seems that the best way to protect consumers from 3rd party disclosures runs contrary to the Foti decision and the debt collector not say that they are a debt collector, or read the Mini Miranda, leaving the purpose of the call ambiguous to any 3rd party listeners.

  • avatar Bill Lindala says:

    Although I agree with you Sisko, based on the definition, leaving a message is technically a communication, since it is

    “…conveying of information regarding a debt directly or indirectly to any person through any medium.”

    The problem with Foti, is that the definition was taken literally, and in the technical sense. Now, as with all case law, there needs to be something that defines exactly what medium is considered a means of communication, and specifically that leaving a name, phone number and extension on an answering machine or voicemail is not considered conveying information regarding a debt.

  • avatar Linda Ledsome says:

    Wow ! A collector suing a collector , Unheard of . I have been a collector in the ARM industery for over 12 years now collected on various products and agencys some good , and some bad . I’ve had some bad collector’s call me, harress me , unwilling to work with me , we all have . I’ve had collectors I have had to say ” Your’e talking to a fellow collector You really want to go down that path ” and one I told she was going to lose her job , she gave all of us a bad name and guess what she was .. that is how u handle the wild children u don’t sue

    now on the other hand

    Someone who doesn’t want to work and can’t find a job elsewhere u have all worked with them the “” Paycheck Collectors “” they would look for any excuse and it was a matter of time .

    I work in a call center the 1st things you heard in every training class as soon as it gets to FDPCA time you hear about all the collectors that have called them and how they could sue them , they usually don’t last .

  • avatar Linda Ledsome says:

    but they are the 1st person to sue !!! So not true collectors

  • avatar Linda Ledsome says:

    and on a personal note as a collector . I personally hate the FOTI message callbacks way down I perfer no message and get a hit with caller id callback

Leave a Reply