@RobertEG wrote:
The relevant statute is FDCPA 805(b):
"Exccept as provided in section 804, without prior consent of the consumer given directly to the debt collector, or the express
permission of a court of competent jurisdiction, or, as reasonably necessary to effectuate a postjudgment judicial remedy,
a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer,
his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the
attorney of the debt collector."
The referenced exception of section 804 refers only to communications solely for the purpose of finding your current location:
"Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information
about the consumer shall =
"(1) identify himself, state that he is confirming or correcting location information concering the consumer, and
only if expressly requested, identify his employer;
"(2) not state that such consumer owes any debt;
"(3) not communicate with any such person more than once unless requested to do so by the person or unless
the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and
that such person now has correct or complete location information"
In my opinion, calls left on an answewring machine carry no reasonable expectation of restrictive contact soley with the consumer, and thus any
reference to be a debt collector or owing a debt would be in violation of FDCPA 805(b).
If there is case law that holds otherwise, I am not aware of it. Additionally, case law citations, unless at the appellant level, are precedential only in the jurisdiction of the issuing court, and then normally only if issued by an appellant court.
Regardless, you can still send then a cease and desist letter under FDCPA 805(c), thus denying them any right to further communications with you.
First of all, it would be simply false and extremely misleading to suggest that federal court decisions below the appellate level play no role in another court's decision making process. As a practical matter, judges in one federal jurisdiction routinely seek, analyze, interpret, cite and often incorporate published decisions by their federal brethren across the county in the matters before them. While it is true that even appellate court decisions are not binding in other judicial districts, the fact is that federal court judges do not have to reinvent the wheel every day.
Secondly, it would be shortsighted to only consider § 805(b). We must look at not only § 805(b), but also four other relevant sections of the FDCPA:
1. § 807 which prohibits a CA from use of “any false, deceptive, or misleading representation or means in connection with the collection of a debt” and listing amongst examples “the failure to disclose in subsequent communications that the communication is from a debt collector.”
2. § 806(6) which prohibits a CA from engaging in “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt,” including “the placement of telephone calls without meaningful disclosure of the caller’s identity.”
3. § 803(2) in which courts have continually upheld to mean that voice mail left by a CA is "communication" under the Act.
4. § 807(11) which requires the "mini-Miranda" in any initial communication.
Again, there have not been an abundance of court cases regarding this issue, but in the approximately five cases decided to date, each and every court has held that in voice mail left at the debtor's residence and / or on the debtor's personal cellular phone, it is a violation for a CA not to identify themselves completely and specify the the exact nature of their business (i.e. debt collection).
Civil No. 07-cv-2579 (JNE/JJG) US District Court for the District of Minnesota
238 F. Supp.2d 1158, 1167 (N.D. Ca. 2002)
387 F. Supp.2d 1104 (C.D. Ca. 2005)
548 F. Supp. 591 (N.D. Ga. 1982)
2006 WL 779774 (S.D. N.Y. 2006)
In the Central District of California case (Hosseinazadeh v. M.R.S. Associates, Inc.) we find examples of specific voice mail messages left that all courts to date have found in violation:
"Hello, this is Thomas Hunt calling. Please have an adult contact me regarding some rather important information. This is not a sales call, however, regulations prevent me from leaving more details. You will want to contact me at 1-877-647-5945 as soon as possible. This is a toll free number. Once again this is Thomas Hunt calling and my number is 1-877-647-5945. Thank you … "
"This message is for Ashraf. Ashraf, my name is Clarence Davis. I have some very important information to discuss with you. I have to make a decision about a situation that concerns you. I am going to make this decision with or without your input. Contact my office right away at 877-647-5945, extension 3619. Failure to return my call will result in a decision making process that you will not be a part of …"
"This message is for Ashraf. Ashraf my name is Clarence Davis. I have some very important information to discuss with you in reference to a file that has been forwarded to my office that involves you personally. Contact my office right away at 877-647-5945, extension 3618. Failure to return my call will result in a decision making process that you will not be a part of …"
"This message is for Ashraf. Ashraf, my name is Clarence Davis. I have some very important information to discuss with you. There has been a trial that has been sent to my office that I’m sure you’re not aware of but involves you personally. [FN4]. Contact me right away at 877-647-5945, extension 3618. Failure to return my call will result in a decision making process that you will not be a part of …"
