Judge Throws Out FDCPA Lawsuit Over a Non-Voicemail

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.