FDCPA Litigation and
Enforcement Trends
Recent court cases and FTC actions
raise important issues for collection
agencies and debt purchasers.
By Andrew Pavlik
20 I July 2009 Collector
T
hough the Fair Debt Collection the Mini-Miranda notice from voice FDCPA when the message is heard by a
Practices Act (FDCPA) has mail messages left on a consumer’s third party.
seen few amendments since answering machine. Collectors feared The question before the court in
its passage in 1977, consumer litigants such a disclosure left on a consumer’s Berg was whether or not the third-
continue to bring novel FDCPA voice mail could constitute a violation party disclosure prohibitions of Section
claims before the courts. The resulting of Section 805(b) of the FDCPA, the 805(b) applied to a voice message left at
decisions often raise new questions section of the Act that forbids disclosing the consumer’s home. The Berg court
and issues for the industry, including the existence of a debt to a third party. determined a collector may violate
those related to leaving voice mail Instead, a debt collector’s message would Section 805(b) if he leaves a message
messages, adding fees to debts, false generally consist of a simple request for for a consumer when he is aware the
representations—the list goes on. a call back, such as, “Good day, we are message may be heard by others. The
The result is a hodgepodge of judicial calling from ABC Financial Systems message in Berg began with a disclaimer
decisions, some of which may be regarding a personal business matter intended to mitigate the possibility a
favorable to the collection industry while that requires your immediate attention. third party might hear the message. The
others may prove more problematic. Please call back at [phone number]. This disclaimer used language similar to the
This article looks at several recent court is not a solicitation.” following: “This is a message for Mary
decisions of importance to the industry Debt collectors never considered Smith. If you are not Mary Smith, please
and the implications for debt collectors, this type of message problematic hang up or disconnect. If you are Mary
debt purchasers and other members of because it was assumed such a message Smith, please continue to listen to this
the credit and collection industry. did not really convey any information message.” The message then disclosed
about the debt, thus the Mini- the call was from a debt collector and
Voice Mail Messages Miranda and other FDCPA disclosures included a call-back number to reach the
The issue of what message to would not be required. Foti and the debt collector.
leave when reaching a consumer’s subsequent line of cases have turned The court noted the forewarning to
voice mail continues to vex the this reasoning on its end. In Foti, the disconnect used by the collector could
collection industry. Beginning with court held a pre-recorded message perhaps dissuade oth