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What can they say on my voice mail/answering machine?

justmindy
Established Member

What can they say on my voice mail/answering machine?

I've searched but found so many different answers that I'm not sure which is correct. Midland Credit has been leaving messages for about a week on my voice mail. Like a dummy, I deleted them before I asked this question but oh well they'll call back. Can they say they are a debt collector on your voice mail? I thought they weren't supposed to do this but it may have changed since the laws seem to change daily. Thanks!

Message 1 of 12
11 REPLIES 11
laz98
Senior Contributor

Re: What can they say on my voice mail/answering machine?

if they are calling you personally, then yes, i believe they legally have to identify themselves as a debt collector.  but if they are calling your family or friends, then they are not supposed to, because it violates your privacy.

Message 2 of 12
O6
Senior Contributor

Re: What can they say on my voice mail/answering machine?


@justmindy wrote:

I've searched but found so many different answers that I'm not sure which is correct. Midland Credit has been leaving messages for about a week on my voice mail. Like a dummy, I deleted them before I asked this question but oh well they'll call back. Can they say they are a debt collector on your voice mail? I thought they weren't supposed to do this but it may have changed since the laws seem to change daily. Thanks!


I used to know the answer to this question, but right now it slips my mind.  To get a definitive answer I'd have to go digging through some files.

 

Basically, I think the issue is that CAs are required to provide meaningful disclosure of their identity with each and every call.  Usually this means they have to identify themselves and their employer.  However, on voice mail they must be careful because of the chance that a family member or other individual may hear the voice mail and CAs are prohibited from disclosing the collections activity to a third party -- even a family member.

 

There is either an FTC Advisory or an actual court case which addresses this issue and maybe later on I will dig through my files to see if I can find it.

 

 

IAALBNYL
Message 3 of 12
MattH
Senior Contributor

Re: What can they say on my voice mail/answering machine?

 

 


@O6 wrote:

@justmindy wrote:

I've searched but found so many different answers that I'm not sure which is correct. Midland Credit has been leaving messages for about a week on my voice mail. Like a dummy, I deleted them before I asked this question but oh well they'll call back. Can they say they are a debt collector on your voice mail? I thought they weren't supposed to do this but it may have changed since the laws seem to change daily. Thanks!


I used to know the answer to this question, but right now it slips my mind.  To get a definitive answer I'd have to go digging through some files.

 

Basically, I think the issue is that CAs are required to provide meaningful disclosure of their identity with each and every call.  Usually this means they have to identify themselves and their employer.  However, on voice mail they must be careful because of the chance that a family member or other individual may hear the voice mail and CAs are prohibited from disclosing the collections activity to a third party -- even a family member.

 

There is either an FTC Advisory or an actual court case which addresses this issue and maybe later on I will dig through my files to see if I can find it.

 

 


 

This is a very confusing area of the law where courts have issued contradicting rulings.

 

http://www.ftc.gov/os/comments/debtcollectroundtable2/544507-00015.pdf

 

http://www.ftc.gov/bcp/workshops/debtcollection/dcwr.pdf

 

http://www.ftc.gov/os/comments/debtcollectionworkshop/529233-00013.pdf

 

http://www.dltlaw.com/CM/Alerts/Alerts62.asp

 

 

TU 791 02/11/2013, EQ 800 1/29/2011 , EX Plus FAKO 812, EX Vantage Score 955 3/19/2010 wife's EQ 9/23/2009 803
EX always was my highest when we could pull all three
Always remember: big print giveth, small print taketh away
If you dunno what tanstaafl means you must Google it
Message 4 of 12
O6
Senior Contributor

Re: What can they say on my voice mail/answering machine?


@MattH wrote:

 

 


@O6 wrote:

@justmindy wrote:

I've searched but found so many different answers that I'm not sure which is correct. Midland Credit has been leaving messages for about a week on my voice mail. Like a dummy, I deleted them before I asked this question but oh well they'll call back. Can they say they are a debt collector on your voice mail? I thought they weren't supposed to do this but it may have changed since the laws seem to change daily. Thanks!


I used to know the answer to this question, but right now it slips my mind.  To get a definitive answer I'd have to go digging through some files.

 

Basically, I think the issue is that CAs are required to provide meaningful disclosure of their identity with each and every call.  Usually this means they have to identify themselves and their employer.  However, on voice mail they must be careful because of the chance that a family member or other individual may hear the voice mail and CAs are prohibited from disclosing the collections activity to a third party -- even a family member.

 

There is either an FTC Advisory or an actual court case which addresses this issue and maybe later on I will dig through my files to see if I can find it.

 

 


 

This is a very confusing area of the law where courts have issued contradicting rulings.

 

http://www.ftc.gov/os/comments/debtcollectroundtable2/544507-00015.pdf

 

http://www.ftc.gov/bcp/workshops/debtcollection/dcwr.pdf

 

http://www.ftc.gov/os/comments/debtcollectionworkshop/529233-00013.pdf

 

http://www.dltlaw.com/CM/Alerts/Alerts62.asp

 

 


Some of those links don't seem to be relevant.

 

In any event, I dug around and canf ind very, veryfew cases which address this issue.  However, those few that do have generally held that a debt collector must identify themselves as such when calling and leaving voice mail on the alleged debtors home or personal cell phone number.

 

The following is typical of the few cases which address this issue:

 

Civil No. 07-cv-2579 (JNE/JJG) US District Court for the District of Minnesota

IAALBNYL
Message 5 of 12
RobertEG
Legendary Contributor

Re: What can they say on my voice mail/answering machine?

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. 

 

     

Message 6 of 12
justmindy
Established Member

Re: What can they say on my voice mail/answering machine?

Thank you everyone for your help. I think I'll let them leave another few messages and let any attorney decide. I wish they would make real laws that say "this is what happens no matter what" and write them in layman english.
Message 7 of 12
MattH
Senior Contributor

Re: What can they say on my voice mail/answering machine?

 


@justmindy wrote:
Thank you everyone for your help. I think I'll let them leave another few messages and let any attorney decide. I wish they would make real laws that say "this is what happens no matter what" and write them in layman english.

 

It is much much harder than you think to draft laws that accomplish their intention.  In the case of FDCPA, the law was written before answering machines, cellphones, email, autodialers, etc., had become so common.  And there is a genuine contradiction, yet to be resolved, between two provisions of FDCPA here: the requirement that the collector identify themselves as such versus the prohibition on telling any third party they are trying to collect a debt.  Every one of the links I listed does have interesting things to say about this contradiction (some of them say many other things as well, but every one of them does somewhere touch on this precise issue).

 

TU 791 02/11/2013, EQ 800 1/29/2011 , EX Plus FAKO 812, EX Vantage Score 955 3/19/2010 wife's EQ 9/23/2009 803
EX always was my highest when we could pull all three
Always remember: big print giveth, small print taketh away
If you dunno what tanstaafl means you must Google it
Message 8 of 12
O6
Senior Contributor

Re: What can they say on my voice mail/answering machine?


@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 …"

 

 

 

IAALBNYL
Message 9 of 12
RobertEG
Legendary Contributor

Re: What can they say on my voice mail/answering machine?

No one ever made any "false and extremely misleading" statement that fed court decisions below the appellate level "play no role."

They are valuable insight into the rationale of one judge, particulary relevant if you have a case before he or she. That  opinion way be read by, and subsequenty influence, decisions of others.  But it is NOT legal precedent within the federal district of that court untl affirmed on the fed appellant level.

 

Many citations are made to provisions of the FDCPA that deal primarily, and in most cases, exclusively, with obligations in communications betyween a debt collector and the specific consumer.

FDCPA 807 (11) relates only to communications between the debt collector and the consumer. Tthe OP never asserted any "mino-miranda" violation of FDCPA 807(11), and intial contact was not even an issue in the post.  Nor was the legality or any further contact.  Just, once again, the leaving of such contacts on a voice mail that could be accessed by third parties.

FDCPA 806(6) relates to telephone calls wherin the caller did not disclose their identity.  The OP stated that the caller did identify their identity.  So the issue has nothng to do with FDCPA 806(6) compliance, but only with whether this was a violation of potential third party access to their voice mail under FDCPA 805(C).

'

The one fed statute that is right on point on this issue is FDCPA 805(b).

 

 

Message 10 of 12
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