Bankruptcy

FDCPA Does Not Give Debt Collector the Right to Leave Messages on Your Phone Answering Machine

By Jonathan

As you may know, there are both federal and state laws that offer a variety of protections to individuals who are in debt and who are being dunned by debt collectors.  The Fair Debt Collection Practices Act offers a variety of protections in cases involving collection agencies (as opposed to the actual creditor).  In other words, a credit card company can do and say certain things and remain legal, but if a collection agency does or says the exact same things, those actions would be a violation of the FDCPA and make the collection agency subject to a claim for damages.

Two of the protections provided by the FDCPA include:

• a prohibition against communicating with a debtor when the collection agency employee does not identify himself as a debt collector; and
• communicating about your debt with third parties

The 11th Circuit Court of Appeals (which provides controlling precedent for Georgia) recently issued an important decision that struck down a somewhat bizarre argument by a debt collector regarding phone messages.  This case benefits consumers by clarifying the rules about telephone messages by bill collectors.

The case of Edwards v. Niagara Credit Solutions involved a situation in which the debt collector (Niagara) left "bare bones" messages on a phone answering machine asking Ms. Edwards to call back about an "important matter."

Niagara argued that its employee did not identify itself as a debt collector because someone other than the debtor might hear the message, thus violating the "third party communications" prohibition.

The 11th Circuit rejected Niagara's argument, stating that it is not permissible to violate one provision of the FDCPA in order to comply with another provision.   The Court further noted that the FDCPA does not guarantee a debt collector the right to leave answering machine messages.

What does this mean to you?  If an unknown party leaves you a message asking that you call about an "important matter" you should save the message and contact a lawyer knowledgeable about FDCPA actions.   If a debt collector leaves you a message and identifies himself as a representative of a collection agency or otherwise discusses a debt that you may owe, save that message as well.  You may have a cause of action for damages.

Full post as published by The BK Blawg on October 18, 2009 (boomark / email).