Two recent federal court cases are helping to define what constitutes a communication when service providers like healthcare collection agencies contact patients about unpaid bills, and while each were wins on the creditor side, one case appealed to the U.S. Supreme Court will face opposition by three federal agencies.
Silent voicemail not a communication. When is a voicemail not a communication under the Fair Debt Collection Practices Act (FDCPA)? Well, for starters, when there’s nothing in the voicemail, reports insideARM.com.
U.S. District Judge Gray H. Miller in Texas last week dismissed a case brought by a consumer, Brenda Garza, who alleged that collection agency MRS Associates violated the FDCPA and the Texas Debt Collection Act by leaving a voicemail with no actual message.
On January 20, 2012 an MRS representative telephoned Garza and left a twenty-second voicemail consisting only of “dead air” on Garza’s answering machine.” Since there was nothing on the voicemail, Garza argued that MRS did not properly disclose the fact that it was a debt collector as required by law. Miller ruled that a blank voicemail was the equivalent of a “hang up” or missed call, which has been proven to not violate the FDCPA.
Federal Agencies Oppose Awarding Defendant Legal Fees in Consumer Collection Complaints. When the U.S. Supreme Court hears Marx vs. General Revenue Corp., an FDCPA violation case, the plaintiff will have three federal agencies on her side, insideARM.com reports.
Olivea Marx sued General Revenue Corp that it violated the FDCPA when it sent an employment-verification fax to her work. As in the MRS Associates case, a federal judge found that General Revenue’s fax was not a communication under the statute and dismissed the case. Additionally, a district court judge awarded General Revenue $4,543 in costs, despite the absence of a finding that Marx had brought the case “in bad faith and for the purpose of harassment.”
insideARM opines that if debt collectors could recoup court costs when winning actions brought against them by consumers, more creditors and collectors would be willing to fight such suits. “As it now stands, there’s little benefit to an agency in fighting a consumer suit: being found to be on the right side of the law can still carry a hefty price tag, and doesn’t outrightly benefit the agency.
The Federal Trade Commission, the Department of Justice, and the Consumer Financial Protection Bureau filed a joint amicus brief in the case against collection agencies, arguing that the judge’s ruling in the Marx case would create a disincentive to the prosecution of private enforcement actions.