From Foti to Davis: Third Party Disclosures in the Answering Machine Age

Following last month's article on voice mail messages and third-party disclosures, a reader contacted insideARM.com with information about a subsequent case dealing with the same issues, only with a twist. While the Foti case mentioned in the earlier article primarily dealt with a collection agency not properly identifying itself on its voice mail message, this new case, Davis v. Windham Professionals, is being hailed as a "reverse Foti" issue.

As the first anniversary of Foti v. NCO Financial Systems comes and goes, collection agencies are no closer to resolving the voice mail third-party disclosure question. And a new class action suit isn’t clearing the waters any, either.

Foti proved to be a landmark decision, of sorts, finding NCO negligent when pursuing collections against Paul S. Foti, among others. Primarily, the District Court of the Southern District of New York felt that NCO had not done a thorough enough job identifying itself in its message for Foti, a violation of Section 1692e(11) of the FDCPA, commonly known as the “mini-Miranda.”

In the wake of Foti, collection agencies were eager to identify language that would protect them from FDCPA suits while also allowing them to contact debtors through voice mail messages. While not taking any official position, or endorsing any kind of official script, the ACA recommended something along the lines of, “This is a message for [debtor]. If you are not [debtor] please hang up or disconnect. If you are [debtor] please continue to listen to this message.”

This, it was hoped, would alleviate some of the dangers that the Foti case seemed to suggest. Then came Davis v. Windham Professionals, however; and now, that reasoning may not hold true.

On February 21 of this year, Russell A. Davis filed a class action complaint against Windham Professionals, a Massachusetts collection agency, for a potpourri of FDCPA violations; primarily third-party disclosure. Windham left a message, similar to the one above, for Russell A. Davis. Davis is claiming a third-party disclosure violation of Section 1692c(b) of the FDCPA.

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