In 2006, the world changed for the collection industry with the decision in Foti v. NCO Financial Systems, Inc. The Court in Foti held that every voicemail message left for a debtor must include the mini-miranda¹ and a meaningful disclosure of the debt collector’s identity².
In the five years since Foti, the debt industry has spent millions of dollars defining, litigating and settling claims premised on this quirk in the FDCPA. Further, consumers continue to file lawsuits asserting that Foti-compliant voicemail messages give rise to the corollary claim of an unlawful third party disclosure, where the message is overheard by a roommate or family member.
Six Specific Phone Message Strategies³
A careful study of the recent Foti line of cases reveal six distinct strategies the collection industry can implement to avoid liability while leaving phone messages.
Leave a Message with the Mini-Miranda and Disclosure of Collector’s Identity
Most courts deem voicemail messages a communication under the FDCPA. Thus, voicemail messages should include the mini-miranda and a meaningful disclosure of the debt collector’s identity, including name, employer and phone number.
The Outgoing Message on a Debtor’s Voicemail May Provide a Defense
A debt collector should listen closely and document the outgoing message on the consumer’s voicemail. An outgoing message that states:
“You have reached [consumer]. Please leave a message.”
is likely the consumer’s personal voicemail. A bona fide error defense may be bolstered in a third party disclosure case where the debtor’s outgoing message indicates the voicemail is that of the debtor only.
Implement a Policy to Avoid Third Party Disclosures
Debt collectors should consider a policy to avoid third party disclosures when leaving voice messages. This policy should include a provision for leaving a Foti type voice message which identifies the debtor and has a pause to allow a non-debtor to cease listening to the message before the mini-miranda and meaningful disclosure of the debt collector’s identity are provided. Such a policy may bolster a bona fide error defense.
Use the FDCPA Skip-Tracing Provisions
The FDCPA skip-tracing provisions allow for a debt collector to communicate with a third party — without disclosing that the consumer owes any debt – to ascertain the debtor’s residence, telephone number at such place, or the debtor’s place of employment. This can be an effective, but limited, tool to consider. Note that the FDCPA limits the debt collector to a single call to a third party for skiptracing purposes with an extremely narrow exception for a second call.
Was there Consent or Eavesdropping?
If facing an FDCPA lawsuit alleging a third party disclosure, a debt collector should examine whether the Plaintiff consented to the third party listening to the message or whether the third party was an unauthorized “eavesdropper.” In commenting on the “third party disclosure” provisions of the FDCPA, the Federal Trade Commission wrote:
[a] debt collector does not violate this provision when an eavesdropper overhears a conversation with the consumer, unless the debt collector has reason to anticipate the conversation will be overheard. (emphasis added).
However one recent Court rejected this defense, writing:
[The debt collector] left messages on systems associated with two numbers. Neither voicemail system identified who might listen to messages left on the systems. Under these circumstances, the pleadings allow the conclusion that [the debt collector] had reason to expect that someone other than [the debtor] would hear the voicemail messages sufficient to satisfy any state of mine requirement that may (or may not) be imposed by §1692c(b).
Note that this “consent” defense may also be available where the debtor/Plaintiff has filed a series of FDCPA cases against various debt collectors, all of which allege a third party disclosure.
Don’t Leave Any Message Until you Verify it is the Debtor’s Voicemail Only
Ultimately the safest apparent strategy is to refrain from leaving any message until the debt collector is able to confirm that the debtor consents to message being left on voicemail. Two recent cases held that a debt collector calling and not leaving a message does not violate the FDCPA. In the Waite case (in which Moss & Barnett, P.A. defended the debt collector), the Court wrote:
It is clear that not leaving a message is not the type of harassing, oppressive, or abusive conduct that violates the FDCPA.
Until Congress provides an amendment to the FDCPA clarifying the issue of phone message, or unless the Supreme Court takes up the issue, uncertainty will continue with respect to debt collector phone messages. Every debt collector should examine the law in this area and devise strategies to minimize the risk of third party disclosures and lawsuits.
John Rossman and partner Mike Poncin recently discussed Foti-compliant phone messages in an audio podcast. Listen now.
 15 U.S.C §1692e(11) requires, among other things, a disclosure that the communication is from a debt collector. This is commonly referred to as the “mini-miranda.”
 15 U.S.C. §1692d(6) prohibits “Except as provided in section 804 [skiptracing], the placement of telephone calls without meaningful disclosure of the caller’s identity.”
 This article provides a general discussion of strategies a debt collector may employ ONLY to reduce the risk of lawsuits or establish certain defenses under the FDCPA. Given the widely varying opinions of the Court s on this topic and the possibility for numerous differing fact scenarios, nothing in this article may be deemed as an “admission” or opinion as to what is or is not a violation of the FDCPA.
John K. Rossman is a shareholder and Chair of the Creditors’ Remedies Practice Group at Moss & Barnett, P.A. Mr. Rossman is a nationally acclaimed authority on the Fair Debt Collection Practices Act and the labyrinth of laws that impact the debt industry. He is a counselor and advisor to national and international companies and noted for his intelligent, creative and successful representation of collection agencies, debt buyers, creditors and fellow attorneys in cases across the country.
This publication is provided only as a general discussion of legal principles and ideas. Every situation is unique and must be reviewed by a licensed attorney to determine the appropriate application of the law to any particular fact scenario. If you have a legal question, consult with an attorney. The reader of this publication will not rely upon anything herein as legal advice and will not substitute anything contained herein for obtaining legal advice from an attorney. No attorney-client relationship is formed by the publication or reading of this document. Moss & Barnett, A Professional Association, assumes no liability for typographical or other errors contained herein or for changes in the law affecting anything discussed herein.