Judge Throws Out FDCPA Lawsuit Over a Non-Voicemail

  • Email
  • Print
  • Printing Articles

    1. Click here to print!
    2. ...or print directly from your browser by choosing File > Print... from the menu or by pressing [Ctrl + P]. Our printer-friendly stylesheet will make sure extraneous website stuff isn't printed.
    3. You're done!

    Close this message.

  • Comments
  • RSS

When is a voicemail not a communication under the Fair Debt Collection Practices Act (FDCPA)? Well, for starters, when there’s nothing in the voicemail.

That’s according to a federal judge in Texas who last week dismissed a case brought by a consumer against a debt collection agency. Brenda Garza alleged that MRS Associates violated the FDCPA and the Texas Debt Collection Act by leaving a voicemail at her number with no actual message. U.S. District Judge Gray H. Miller granted a MRS motion to dismiss the case.

The facts of the case are pretty straightforward, as noted (awesomely) in the written opinion: “As alleged in Garza’s complaint, the facts of this dispute are simple and can be recounted in one sentence. On January 20, 2012 at 4:44 p.m., MRS, a debt collection agency, telephoned Garza and left a twenty-second voicemail consisting only of “dead air” on Garza’s answering machine.”

Since there was nothing on the voicemail, Garza argued that MRS did not properly disclose the fact that it was a debt collector. MRS argued that the case should be dismissed since it was not a communication at all.

Miller judged that a blank voicemail was the equivalent of a “hang up” or missed call, which has been proven to not violate the FDCPA.

“In short, persuasive case law supports the idea that a voicemail is a communication only when it conveys more information than could be gathered from a missed call,” wrote Miller. “Silence does not meet this standard. Accordingly, based on the lack of a communication and because disclosure is not required on a blank voicemail as discussed above, plaintiff’s claim must fail.”

The case was dismissed with prejudice on August 15. Miller noted that he will enter a separate final judgment consistent with the opinion.

  • Email
  • Print
  • Printing Articles

    1. Click here to print!
    2. ...or print directly from your browser by choosing File > Print... from the menu or by pressing [Ctrl + P]. Our printer-friendly stylesheet will make sure extraneous website stuff isn't printed.
    3. You're done!

    Close this message.

  • Comments
  • RSS

Posted in Collection Laws and Regulations, Debt Collection, FDCPA, Featured Post .

×
Subscribe to our email newsletters

Continuing the Discussion

We welcome and encourage readers to comment and engage in substantive exchanges over topics on insideARM.com. Users must always follow our Terms of Use. Also know that your comment will be deleted if you: use profanity, engage in any kind of hate speech, post an incoherent or irrelevant thought, make a point of targeting anyone, or do anything else we find unsavory. Your comment will be posted under your current Display Name, shown below. If you'd like to change your Display Name, you must update it on the My Profile page.

  • avatar todd-bean says:

    I’m a consumer that has no love for debt collectors and has sued them many times. With that said, this consumer is a moron and I hope the judge also orders the collection agency attorney fees to be paid by the consumer plus any other costs associated and incurred by the collection agency while defending this ridiculous lawsuit.

  • There is still no correct way to leave a message .This lawsuit is ridiculous

  • avatar jessie-gomez says:

    Another low life consumer listening to credit board lawyers and got spank by the judge.

  • avatar todd-bean says:

    “There is still no correct way to leave a message .This lawsuit is ridiculous.”

    That’s what makes the lawsuit so ridiculous. Any message no matter what violates some section of the FDCPA. It’s impossible for it not to. You either don’t leave enough info, leave too much or a third party hears the message and the disclaimer for a third party carries no weight.

    The consumer could have just waited for an actual verbal message and easily had a lawsuit but for some stupid reason sued over a dead air whatever you want to call it. Was probably a TCPA violation and a robo call and the consumer atty probably did not even pick up on that.

Leave a Reply