The U.S. District Court for the Eastern District of New York said Thursday that a voicemail message stating a call is from a debt collector, along with a return phone call where the voicemail message's intended recipient is disclosed to a third party, does not violate the Fair Debt Collection Practices Act.
The court dismissed the case, Abraham Zweigenhaft v. Receivables Performance Management LLC, stating that the collection agency acted with caution to protect the consumer's privacy when it left one voicemail message and responded to one return phone call. It provided the minimum amount of information necessary to remain compliant with the FDCPA, while reasonably availing itself to widely used technology to contact the consumer, according to the ruling.
The case originated when a debt collector left a voicemail message on the consumers home phone, and in doing so identified that the call was from a collector. The consumer's son heard the message and returned the call.
The consumer filed suit against the agency alleging an FDCPA violation because the content of the voicemail message and the phone call together conveyed information regarding the consumer's debt to the son, a third party.
Judge Raymond Dearie reviewed FDCPA provisions related to collectors and contact with third parties. The court considered previous court decisions about whether overheard voicemail messages violate the FDCPA, including the differing opinions from Foti v. NCO Financial Systems Inc. and Marx v. General Revenue Corp.
He noted that courts are divided into two main camps on the matter: those that follow Foti and hold that if a third party overhears the message, no matter what the circumstances, the debt collector has violated§ 1692c(b) regardless of the messages content, and those that focus on the nature and definition of a communication, like in the Marx case.
The court explained that it would not classify the collector's actions in this particular case as an FDCPA violation because doing so would run counter to the overall purpose of the FDCPA, which is to protect consumers from abusive collection practices "without imposing unnecessary restrictions on ethical debt collectors."
The district court stated that allowing debt collectors to leave voicemail messages when trying to collect a debt is in the interest of debtors and debt collectors alike.
"Allowing debt collectors to leave voicemail messages when trying to collect a debt is in the interest of debtors and debt collectors alike. The alternative is numerous, harassing hang-up phone calls that are a nuisance to the debtor and ineffective for the debt collector.
"Faulting debt collectors for ensuring that they are speaking to the correct individual when they receive a return call is similarly unappealing. Indeed, that practice protects debtors' privacy interests. Mr. Zweigenhaft argues that RPM should have asked "who is calling" rather than "is the Abra Zweigenhaft." But individuals may be hesitant to disclose their identity to a debt collection company, so this approach has limitations as well."
