Free registration is required to access these resources. Login or Register.

Premium compliance products are also available in the insideARM Store

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.

 


Related Products

Telephone Communication Compliance: The CFPB's Consent Orders Thumbnail

Telephone Communication Compliance: The CFPB's Consent Orders

Our Telephone Communication Compliance: The CFPB’s Consent Orders guide is designed to help debt collectors comply with consent orders that hint at telephone communication violations. The report includes easy-to-understand explanations of each consent order and a comprehensive chart of all relevant consent orders, keeping the information you need right at your fingertips! This paper has been excerpted from insideARM's larger "The CFPB's Consent Orders Regulating the ARM Industry" report, available for sale now.

Staying Compliant – and Out of Court – with the TCPA Thumbnail

Staying Compliant – and Out of Court – with the TCPA

This reference guide distills the information presented in our webinar. It comes complete with a link to the full recording of the webinar – great for use for all-staff trainings and quarterly in-services -- as well as the slide deck and full transcript of the webinar. This guide doesn’t just walk through what agencies should and should not be doing, going forward -- it contains the full Q&A from the webinar, too. (This product is approved for DBA International Certification Credit.)

The CFPB's Consent Orders Regulating the ARM Industry Thumbnail

The CFPB's Consent Orders Regulating the ARM Industry

Our guide on The CFPB’s Consent Orders Regulating the ARM Industry is the first report of its kind designed to help debt collectors comply with consent orders. The report includes easy-to-understand explanations of each consent order and a comprehensive chart of all relevant consent orders, keeping the information you need right at your fingertips! This report will be updated quarterly.

UPDATED! CFPB’s Advice to the Consumer (through March 2016) Thumbnail

UPDATED! CFPB’s Advice to the Consumer (through March 2016)

The Consumer Financial Protection Bureau hosts more than 80 of the most common consumer questions about debt collection on its Ask CFPB website. And since the Bureau was created for the sole purpose of representing and protecting consumers, debt collectors need to know how the CFPB communicates with them. That’s why insideARM compiled the answers to all 88 questions in one user-friendly report. Using the CFPB’s guidance as a model for your own compliance priorities, policies and procedures means your company will be able to keep up with the Bureau before it feels the need to examine your agency. ALL ANSWERS UPDATED THROUGH MARCH 2016.

Advertisement