I'm curious if this came up in one of the numerous FOTI discussions -

If the courts say that leaving a message on a machine or voice mail is a communication and is subject to the required disclaimers, despite the possibility of a third party hearing the message - and you agree to comply and start leaving the minimiranda, the "this communication is from a debt collector", and your full company name and all that...

Then why can't you just go ahead and leave all the information about the debt on the machine? Isn't it the same thing? If you get nailed for third party disclosure on a minimiranda, then why not go for the gold and leave an entire demand for payment on the voice mail? - Any thoughts?

It's a really good question. One downside that comes to mind is that going all out might inspire a litigious consumer to sue when stopping yourself at the mini miranda may not have been quite enough. You may push more people over the line.

How many? I have no idea. Generally speaking, most who are inclined to sue do not really need the justification. It's those who are sitting on the fence that would concern me.

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The FDCPA Litigant Alert
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Well... we all know the country isn't short of fence sitters

Anyway, yeah you make a good point, if someone is going to sue for the minimiranda on a voice mail, then they'll sue anyway. But how many people would explore it further if you zinged them with a demand on their voice mail?

I don't know it's pretty far out there, but I just don't see a real difference anymore, if you take FOTI as the rule...

Hi Roy..

Seems, the safest route is to leave no message at all.

If you decide to play, and start leaving jucier messages, please share your results (confidentially) I'd love to hear how it works out..

No matter what, if you leave messages of any kind, you'll be sued at some point.

Maybe some of these FTC discussions can help us find a better solution, regardless of whether they outlaw messages altogether, or provide us some protection from litigation. It'd sure be a welcomed change, basic clarification of some of those pesky laws from the 70s.

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beat it.

I'm not going to start getting that creative... LOL!!

It just hit me today when I was calling this guy back and got his voice mail. Just one of those thoughts that I figured I'd throw out there.

I agree, it's a 1970's BS law. I mean 80% of what we do & how we do it didn't exist in 1992, when I started in this industry, much less in the 70's!!

The wolds first answering machine made an appearance in 1935 and the worlds first mobile phone was in 1902.

I am uncertain when the worlds first history lesson took place but I am pretty certain it was in fact before 1992.

The worlds first fully compliant collection agency has yet to make an appearance, but I am naturally of an optomistic disposition.

Wow Gerry, you must be a debtor - because you've totally missed my point, try to focus. I wasn't talking about the telephone, land lines or otherwise. I was speaking broadly, as in wide reaching, about the overall changes in the industry since 1992; meaning that technology (you know com-pu-ters and flashy beepy things and such) has allowed us to do some many new things and even created new types of debts to collect. Are you following me debtor guy?

No but I will bear your kind offer in mind should I ever decide I need to get lost.

Hey Gerry,
You really should crawl back onto your wheel chair and mosey on to the debtor boards. This is not a place you will want to come and try and post your nonsense. I have noticed when debtors come on here to post, its usually cause they just got nailed by a collection agency, they cant pay their debt or refused to, and then they want to come and herass the bill collectors. Any laws agains debtor herrassment? Maybe I will come up with the FPYDB ()Fairly Pay Your Debt Back) And they call the collectors the bad guys.....give me a break. Good luck

Tool

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The more calls you make, the more debtors you talk too, the more money you will collect...........so why are you on this board? get on the phone! PRIME TIME!

It appears to me the nonsense is in discussing which particular way to break the law is the preferred method. Perhaps I am just a litlle over critical, who knows?

I should have thought a more sensible question would have been how do I avoid breaking the law, but that is just me.

For the record, I have no judgements, never been nailed by any collector nor have I have any debts in collections. Still you know what they say about making assumptions.

I have no problems with collectors who do their job in a legal way, they have every right to do so. I merely find it interesting that there are a number of posts that at first glance give the appearance of being designed to find ways to side step the law.

There are several posters who appear to be collectors that frown on such practices. I applaud them.

Thank you for the nice welcome, I am equally thrilled to make your accquaintance on a public forum.

Gerry,
I understand your position and I also do not agree with some collectors antics. However to be the devils advocate here, you may be surprised to know how many consumers flat out say"screw you and the creditor im not paying"

You speak of side stepping......I have never in my life seen more side stepping than I have from debtors.....example...

I dont have a job, no money, no income (but yet their cell phone is on, TV is on in the back ground, their going on vacation, must I go on?

How old is this? (does it really matter how old it is from a moral stand point? You borrowed you must pay back)

My credit is shot anyway, so why do I care if it gets paid back? (All I can say to this is wow)

I love it when a debtor tells you they have no money, no job, you skip out their jobs, find out their making money, paying their other bills, then they just stop talking to you....dont go down that road G man.......that is the problem here. Every body has taken the responsability, and light off of the debtors and have placed it on a few bad apples or agency's..... When are the law makers going t realize that the debtors are abusing the system to get out of paying their obligations>>>>I mean come on now.......lets talk facts.........most debtors lie, hide, run, evade, and then scream "their being mean and want me to pay a bill"

I agree keep it clean, be honest, stay in compliance, you have noting to worry about.....eventually debtors will run out of lies and the real deal will be revealed...

Tool

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The more calls you make, the more debtors you talk too, the more money you will collect...........so why are you on this board? get on the phone! PRIME TIME!

We're gonna do this in real time...

Ok Gerry the reason I posted this thread was to address a thought I had with the ill-conceived FOTI decision. What is so hard to understand about that? If leaving a phone number on a voice mail is a communication about the debt and it's OK as long as I leave the proper disclaimers, then why can't I leave a demand for payment? It's the same thing.

As stated, I'm not going to stick my neck out and do it - it's not worth the risk.

Some genius judge made it essentially illegal for us to try to get a message to a person. It's ridiculous. Of course I am not surprised; this is the age of the Nanny State. After all - with the passage of the TCPA the government practically put the telemarketing industry out of business. All because a few little old ladies couldn't say "no" and hang up the phone!

This is a call to all of you Nanny Staters and "Consumer Advocates" - enjoy it while it lasts, because some day some politician in DC may decide to outlaw what you do for a living! Wake The Hell UP!

There is your mistake. Nobody is talking about how to break the law here. The discussion was about how to stay compliant with the law, no matter how stupid it may be.

I know your type fairly well. You like to analyze the same laws from the other perspective, figuring out how to entrap collectors into making a technical violations. Then you extort or sue.

No matter which side you are coming at it from, I think all can agree it is a very narrowly written decision with broad implications, and it deserves analysis. This is a collector forum. If you are just here to tweak collectors, you might as well leave.

If you must stay, at least don't be a hypocrite.

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The FDCPA Litigant Alert
Until 12/31/2009, we are scrubbing collection agency databases 100% FREE! - Details at webrecon.com/free

The logical reason is that then it's clearly a "communication" and, based on recent rulings, runs the risk of being subject to 3rd party disclosure.

On the other hand, if it happens to be in a district that has ruled contrary to Foti, by just leaving a call back message it is not a "communication" and doesn't require the disclosure that the message is from a debt collector.

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...the FDCPA enlists the efforts of sophisticated consumers....as "private attorneys general" to aid their less sophisticated conterparts, who are unlikely themselves to bring suit under the Act, but who are assumed by the Act to benefit from the deterrent effect of civil actions brought by others.

Tool, I have no argument that some debtors act in the fashion. Trying to do so would be the actions of an idiot. Frankly I care not whether the debtors lie or tell the truth they are not legally obliged by a Statutory Act to act in a particular fashion.

And therein lies the difference between the two "sides" and I use the term loosely as they do not always need to be adversarial. In fact the reverse will often prove to be more productive for both parties. But I digress.

Morality is a dangerous argument to proffer as I am not quite sure whose morality you think trumps someones else? Should the morality of sharia law for example be above or below the morality of a cult hippy group living in a forest camp hugging trees? I don't the answer to that but I do know that law is enforced in the courts who are concerned with legality and could care less about moral arguments.

I am glad we agree in the main and really are partaking in ideological arguments rather than a position of entrenched viewpoints based on our own preconceptions and prejudice. I find that more productive even when I do not always agree with the opposing views.

My whole take on the FOTI problem is rather simplistic. Debt collectors functioned perfectly well and to a large degree with fewer problems pre tele-collect dominance. The telephone is an instrument of convenience rather than the sole weapon available. I do sometimes wonder if the same level of angst and creativity were put to use in pursuing the debtor in a different fashion if everyone would not be happier?

Edited: 07/22/2009 at 01:42 PM by Gerry Adams

Roy, like everyone else you have the right to find displeasure in a particular judgment or piece of legislation. However until it changes do what the rest of us have to do every day and live with it. There is little point in being frustrated by that which you can not change, at least directly and in the foreseeable future.

No judge that I am aware of has said that you can not get a message to a debtor. Perhaps the basic misunderstanding on that point is what is causing you such frustration.

The US mail is still in existence and in fact could use a little help in terms of additional business. Why not help it out and communicate until your heart is content?

Of course the real problem that peole have within the collections industry with FOTI is very simple. The telephone is a conveinent speedy and cost effective method of communication when compared to other methods available. The law should not be concerned with what is conveinent for a particular industrial sector. If it were then we would have Truck Drivers taking speed and driving 40 hours straight, or we would have all sorts of addictive and damaging chemicals added to our water supply etc etc.

All sectors are regulated to a greater or lesser degree. I just happen to take the viewpoint that it is pointless to concern ourselves with what is wrong with them rather than comply with them and find ways to become more productive by using a different approach.

And that in a nutshell is my objection to posts such as yours (not your actual post but the general tone of similar ones)

Healthy debate can be productive and enlightening for both sides of the fence.

I am not quite sure what a nanny stater is except that I do not think I am one - I never did like Mary Poppins as a child. Perhaps you are referring to the bad apples in the collections industry barrel that brought about the need for FDCPA and associated legislation. I can put your mind at ease and confirm that I am not one of those.

I find it a little strange that you think the telemarketing sector is in its death throes the turnover figures and taxation revenue gleaned from that particular sector tends to suggest otherwise.

Telemarketers will survive, debt collectors will survive the world won't end. All that will happen is that will be a more difficult road ahead for those who do not keep up to speed and ensure that they are compliant. That can only benefit the consumer and the collections industry alike, unless of course you are suggesting that you support illegal activity from within your industry?

Why any reasonable person object to raising standards higher and policing non compliant players out of the industry is beyond me. But hey it takes all types to make an interesting world and keep us all employed, so perhaps vive la difference should be the order of the day?

I seriously doubt that DC will ever outlaw what I do for a living there are too many of them who share a common background and DC has never been acussed of ignoring self interest.

I am an FDCPA plaintiff's attorney. I am surprised at all the frustration debt collectors exhibit with the, so called, "Foti decisions." In my opinion, the debt collector community is making a mountain out of a molehill here. The idea that if you leave a message on a consumer's answering machine you have to be careful not to disclose information to a third party is nonsense. And frankly, I find debt collectors that make this argument to either be disingenuous or not thinking things through very well. The simple fact is that if a consumer plays his answering machine in front of a third-party that is not a third-party communication. It is no more a third-party communication than if a consumer comes home, opens up his mail, sets the letter down on a table somewhere, and a third party reads that letter. I never hear a debt collector voicing concern for that scenario! However, it is really the same thing. Further, the courts have ruled that when a debt collector leaves a message on an answering machine, that is a communication under the FDCPA. Consequently, even if you do not leave the fact that you are a debt collector on the machine, you are communicating with third parties about a debt should a third party overhear the communication (at least, under your faulty belief that a third party overhearing a recorded message is a third party communication.)

So, in a nutshell, here is the answer to your supposed "Foti problem." Stop worrying that a third party will overhear the message. If it happens, and if the consumer is litigious enough to try to sue on that issue, and if an attorney is willing to take such a case, simply defend that. It is not a third-party communication when the consumer is responsible for the third-party hearing the information.

Now, I suppose you could come up with some crazy scenarios. For example, suppose a friend is over to the person's home and listens to the voice mail without the consumer's permission? Well, I guess we could say the same thing about letters. What if a friend is over to the persons house and starts digging through drawers and finds the letter? I know it's hard for debt collectors to understand this, but FDCPA attorneys are not willing to take any case that comes along. Our office certainly would never take such a case, and I have never known anyone else that I believe would take such a case.

Finally, to answer the question of "Why don't we just leave all the information on the voicemail?" I agree. That should not be a problem. I can assure you neither I nor any attorney that I know of would sue on such a claim.

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Gurn,
I wish more "FDCPA plaintiff's attorneys" felt the way you do...but there are plenty of armored-truck chasers in your line of work and, from my view, your opinions are in the minority. Hence the necessity to have this whole discussion. Agencies have, in fact, been sued for 3rd party disclosure on this very same issue. Frequently. I won't get into the whole arguement itself...but perhaps, as an attorney, you don't see what that does to us. The simple fact that we're sued (win or lose) costs us money. Lots of it. To have our attorney "simply defend that" comes at a huge cost. We desperately seek ways to AVOID getting sued and its the smart thing to discuss it. For you to simply say this is a non-issue is a little short-sighted and, to be frank, insulting.