In a new twist on Fair Debt Collection Practices Act (FDCPA) litigation regarding voice messages, both a Magistrate and a U.S. District Court Judge in the District for the Oregon have ruled that specific voice messages did not violate the FDCPA. See here to review the magistrate’s findings and recommendation. See here to review the district court judge’s order approving the magistrate’s findings.

In the case Moore vs. Account Control Technology, Inc. (ACT), a consumer in Oregon argued that ACT violated the FDCPA by not identifying the name (or alias) of the collector, in addition to the name of the company, in every communication with the borrower, including recorded messages.

As both parties had brought motions for Summary Judgment, the material facts were not in dispute.

Lane Community College placed an account with ACT.  ACT placed its first telephone call to plaintiff on or about June 20, 2014. Plaintiff answered her telephone and the following conversation occurred:

Hello?

Hi, may I please speak with Christina?

This’s her.

This is Christina Moore?

Yes.

Hi, ma’am. My name is Jasmine. I’m with Account Control Technology. Did you Attend Lane Community College?

Yes.

…..

Thank you, Ma’a’m. Before we go any further, federal law requires me to inform you this is an attempt to collect a debt by a debt collector. Any information [interrupted]

….

Plaintiff also admitted that during this first contact with ACT, the ACT representative told her she owed a debt to Lane Community College and that ACT was a debt collector.

On July 3, 2014, ACT left the following voice message with plaintiff:

“We have an important message from Account Control Technology. This is a call from a debt collector. Please call [phone number].”

The record reflected that message was a script message left by all ACT employees when they are leaving messages on an answering machine for a borrower. The record also showed that employees do not announce their individual names in these messages as “the call is being placed by a representative of the company, because there is no guarantee that a consumer who calls back in will receive the same agent.”  Additional recorded messages were subsequently left on plaintiff’s phone on four other occasions: July 10th, July 21st, August 7th, and August 20th.  No further contact was made with Ms. Moore. 

The FDCPA prohibits “the placement of telephone calls without meaningful disclosure of the caller’s identity.” 15 U.S.C. §1692d(6).

Plaintiff’s position was: “when an agent makes a call on behalf of a principal, two people can be correctly referred to as the ‘caller,’ not one. When that is the case in the context of the FDCPA, both ‘callers’ must disclose their identity,” (but an individual caller may conceal their real name and use an alias.”)

ACT argued that it made meaningful disclosure of the caller’s identity by stating, in every call and message, that the caller was: 1) “Account Control Technology;” and that 2) “this is a call from a debt collector.” ACT further argued that the providing of the name of the ACT representative leaving the message is immaterial as to whether the disclosure is “meaningful.”

In the findings the court determined:

“The messages left by ACT made no attempt to conceal any information about the calling party or the nature of the call. As stated, plaintiff does not contest that each message accurately identifies the calling party as defendant Account Control Technology and that each message expressly states that the call was from a debt collector. Moreover, each message was after the initial conversation with plaintiff who, from that conversation, knew exactly the nature and purpose of defendant’s call. There was no concealment in defendant’s messages in this action and thus the disclosure in this action was “meaningful.”

Plaintiff does not have case law that says a personal representative must state a personal name or personal alias in addition to stating the identity of the debt collection company and stating that the call is a debt collection call. There is no such case law and this court declines to create any. The stating of the representative’s personal name (and, obviously, his or her alias) is immaterial to whether there is a meaningful disclosure of the caller’s identity. A representative’s name (and similarly, a representative’s alias) is not “meaningful” to a consumer-the human caller is not the entity which owns or seeks the debt; the consumer would not satisfy the debt by writing a check to the representative personally; nor would the consumer sue the representative personally for violating the FDCPA.”

When asked for comment on the decision ACT responded: “As an industry, we need to be sure collection companies are willing, able, and prepared to fight against frivolous lawsuits like this case,” said Jonathan Endman, General Counsel for Account Control Technology, Inc. “Having sound policies and procedures, effective training programs and accessible records – including call recordings – put us in a great position to successfully defend this case. We are pleased that the court agreed with our position and delivered a rather common sense result.”

insideARM Perspective

insideARM agrees with Mr. Endman’s assessment. This is a straight-forward, common sense decision.  ACT is to be commended for solid policies and procedures regarding voice messages. It is very interesting that the finding specifically notes that the voice messages all came after an initial conversation with the consumer where all detailed information about the purpose of the call was disclosed.

 


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