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.
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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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Comments
Comment from jennyiscurious on February 8, 2009 at 12:48AM EST
Curious, as a debt collector calling the last known res of the debtor, father of debtor answers the phone, collector asked to talk with debtor, father of debtor says she is in college and working on final exams, with in the 60 sec of contact told father of said debtor the name of the company, father says his daughter is just 18 and in college, also states takes care of all her bills, tuition, housing, vehicle, clothing, food, lodging the whole shootin match. Father of debtor says hold on a munite comes back with the bill sent to his address. Opens the bill and reads to me the information my employer sent to the house of the debtor. Father say he will pay the bill, wants to know if the amount is the full charge or is this part of the bill after the insurance paid. I asked what ins co, he says the correct ins co listed on the bill. I let him pay, is that a FDCPA violation?
Comment from mike on March 29, 2009 at 7:36PM EST
If you never told him your client name and didnt answer any of his questions then no you didnt break the law. But if you took a payment over the phone from this guy then yes you did or if you told him where to send the payment to. The collection game is very easy but very messy. Im own a collection agency fortunetly my clients due sue the dead beats that dont pay them and allow us to report to the credit agencies. If people hate debt collectors so much then just pay your bill and we would be out of a job. Debt in america just boils down to the fact that 80 percent of this country is lazy and wants to live beyond their means without actually having to work for it. Like honestly how can you get pissed because you owe 10k on a credit card and havent paid it in a year so a collection agency calls you. Then they act like you did something wrong??. These people are hilarious debtors call us collectors the scum of america. Id like to rephrase it for them. Debtors are the scum of america and are the reason why we are in a recession. Its called get a job or two or three do what you have to do to pay your bills but dont get pissed because someone lent you 10k and the want it back.
Comment from TYLER (COLLECTOR) on May 2, 2009 at 9:29AM EST
This is true, I'm not scum for collecting something you agreed to repay. I do deceased collections and there is alot that we see where someone will use a card for a year after someone passes and then not pay and get an atty to fend us off. I can see on the statements what, and when these charges acrued but our hands were tied, people have no respect for justice and will find anyway to manipulate laws in their favor.