In a ruling that could have far-reaching impact on the collection practices of ARM law firms, a district court judge in New York recently allowed an FDCPA lawsuit to advance against a collection attorney over the language used in a pre-recorded voicemail message.

U.S. District Judge Carol Bagley Amon, the Chief Judge in the Eastern District of New York, denied the collection attorney’s motion to dismiss a case that argued the law firm was not allowed to identify itself as a “law office” without meaningful attorney involvement in the case.

In Bard v. Law Offices of Harold E. Scherr, the plaintiff filed a suit claiming damages under the FDCPA over a pre-recorded voicemail the law firm left in an attempt to collect a debt.

The message was as follows:

This message is for Hanna Bard; if you are not Hanna Bard, you should not listen to the rest of this message; this is the Law Office of Harold E. Scherr, a firm which engages in the collection of debt; please call me toll free at 8008588736.

Bard argued that the message was left “without conducting any meaningful review of the account.” Bard’s complaint alleges that defendant falsely represented that the messages were from an attorney, in violation of 15 U.S.C. § 1692e and subsections (3) and (I 0). Bard seeks to certify a class of persons receiving similar prerecorded messages and requests statutory and actual damages, costs, and attorney’s fees.

The judge and both parties agreed that the message was a “communication” under the FDCPA. The Law Offices of Harold E. Scherr is also recognized as a law firm. But Bard’s case hinges on whether an attorney had any meaningful involvement in her account or if the firm was acting strictly as a collection agency.

In its motion to dismiss, the firm noted that that its voicemail message makes no representation regarding Bard’s debt or account which could lead Bard into believing that an attorney had become involved in the debt collection efforts. Further, its message was “designed” with FDCPA compliance in mind; other provisions of the FDCPA require a debt collector to provide its name and to specify that it is engaged in the collection of debt.

Scherr was responding to one of the cases Bard used in support of her claim (Greco v. Trauner – briefly discussed here). In Greco, a Circuit Court held that a disclaimer must be provided in a communication that specifically notes no attorney had reviewed the account. But in that case, the communication in question was a letter. Scherr argued that the case’s legal precedent applied only to letters.

Judge Amon disagreed. She wrote that although “the Second Circuit has not yet examined whether a prerecorded voicemail message by a law firm requires a disclaimer…this Court can find no principle that would justify a distinction between a voicemail message and a letter for purposes of FDCP A liability; in either case, the communication must not misrepresent the extent to which an attorney has become involved in the debt collection process.”

Judge Amon said that since the Second Circuit in Greco made clear that a letter on a law firm’s letterhead without a disclaimer implies attorney involvement, she finds “the prerecorded voicemail in this case may imply a level of attorney or firm involvement in the debt collection process.” Amon said that Bard’s allegations are sufficient to state a claim under the FDCPA and dismissed Scherr’s motion to dismiss.

 


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