The plaintiff in a case decided last week in federal district court argued that because a debt collection agency technically violated the TCPA in a call to the defendant, the company was also on the hook for an FDCPA claim under that law’s prohibition on “illegal acts.” But the judge disagreed, ruling in favor of the debt collector.
In Gomez v. Oxford Law in the Middle District of Pennsylvania, the consumer plaintiff was contacted by the defendant debt collector one time regarding a debt. The collector left a prerecorded voicemail that gave full Foti-style disclaimers and was structured to minimize the possibility of third-party disclosure.
Most relevantly, the message began:
[P]lease hang up or disconnect. If you are Gomez, Vinouish please continue to listen to this message. There will now be a three second pause in this message. By continuing to listen to this message you acknowledge that you are Gomez, Vinouish. You should listen to this message in private as it contains personal and private information. There will now be a short pause in this message to allow you to listen to this message in private.
This is Casey Fox from Oxford Law, LLC. This communication is from a debt collector….
The message then gives the full mini-Miranda notification and instructs Gomez to call back to a specific number.
Gomez filed an FDCPA suit on the grounds that the message was a violation of the TCPA, and as such, an “illegal act” under section 1692e(5) of the FDCPA. The TCPA requires any entity using prerecorded messages to identify themselves “at the beginning” of the message. Because Oxford did not identify itself until the “seventh sentence of the message,” there is a potential TCPA violation.
Oxford, however, argued in a brief that debt collection calls are specifically exempt from that particular requirement of the TCPA under a 2005 clarifying ruling from the FCC. The FCC noted that collectors are not required to identify themselves upfront if doing so conflicts with other federal or state laws, specifically, the FDCPA.
But District Judge James Munley didn’t even need that rationale to grant Oxford’s motion to dismiss. He noted that the FDCPA claim fails for two reasons.
First, he wrote that “section 1692e(5)’s plain meaning applies only to threats to take any action that cannot legally be taken or that is not intended to be taken. Here, the message is devoid of any threat.” He continued by noting what illegal actions the FDCPA is trying to prevent: “Defendant is not threatening to institute a debt collection lawsuit. Defendant is not threatening to garnish plaintiff’s wages. Rather, defendant is asking the plaintiff to call it back.”
He expanded thought under his second reason. “Second, even if the court were to construe section 1692e(5) to include both threats and illegal acts, defendant’s technical violation of the TCPA–the illegal act–is not the type of illegal act the FDCPA prohibits. Courts to have addressed this issue have all held that the illegal act pertained to the filing of a lawsuit.”
The plaintiff, or more probably the plaintiff’s attorney, was attempting to create a new precedent with the case and use the TCPA-FDCPA conflict to trigger FDCPA liability. Judge Munley actually gave the attorney a tip of his cap in his conclusion ordering the case closed: “While skillfully and artfully presented, plaintiff’s cause of action fails to establish a threat to take an action that cannot legally be taken under 1692e(5).”