OSHA Launches Online Whistleblower Claim System

To protect employee "whistleblowers", on December 5, 2013, the Occupational Safety and Health Administration ("OSHA") launched an online whistleblower complaint system at http://www.whistleblowers.gov/.

"Whistleblowing activity" includes reporting a work-related injury, illness, or fatality, participating in safety and health activities, or reporting a statutory or regulatory violation.

Although known primarily as the federal agency responsible for regulating workplace health and safety under Occupational Safety and Health Act, OSHA's "Whistleblower Protection Program" enforces the whistleblower protection provisions of 22 different federal statutes including:
°Asbestos Hazard Emergency Response Act;
°Clean Air Act;
°Comprehensive Environmental Response, Compensation and Liability Act;
°Consumer Financial Protection Act;
°Consumer Product Safety Improvement Act;
°Energy Reorganization Act;
°Federal Railroad Safety Act;
°Federal Water Pollution Control Act;
°International Safe Container Act;
°National Transit Systems Security Act;
°Pipeline Safety Improvement Act;
°Safe Drinking Water Act;
°Sarbanes-Oxley Act;
°Seaman's Protection Act;
°Section 1558 of the Affordable Care Act;
°Solid Waste Disposal Act;
°Surface Transportation Assistance Act;
°FDA Food Safety Modernization Act; and
°Toxic Substances Control Act.

Mirroring the existing paper complaint form, OSHA's free online system provide workers with an accessible way to file whistleblower complaints without fear of retaliation. 

Workers can now file whistle blower complaints by calling an agency hotline or a regional office, submitting a written complaint, or using the online form. 

Given the ease with which employees now can file complaints, employers should anticipate a likely whistleblower claims increase by updating internal policies and educating managers on the whistleblower statutes.

CFPB Issues Final "RESPA/TILA Disclosures" Rule

Pursuant to the Dodd-Frank Wall Street Reform Act, the Consumer Financial Protection Bureau just released 1,900 pages of regulations regarding integrated Truth in Lending Act ("TILA") and Real Estate Settlement Procedures Act ("RESPA") required disclosures that consumers must receive in applying for and closing on a residential mortgage loan
http://files.consumerfinance.gov/f/201311_cfpb_final-rule_integrated-mortgage-disclosures.pdf ("Disclosure Rules").

While not taking effect until August 1, 2015 and excluding home-equity credit lines, reverse mortgages, mobile homes mortgages, and creditors making five (5) or fewer mortgages per year from their coverage, the Disclosure Rules require two (2) disclosures: the three (3) page Loan Estimate (replacing the Good Faith Estimate ("GFE") and initial Truth in Lending Disclosure) and five (5) page Closing Disclosure (replacing the HUD-1 and final Truth in Lending Disclosure).

Loan Estimate

Replacing both the GFE and initial Truth in Lending Disclosure, the Loan Estimate summarizes contemplated loan terms, estimated loan and closing costs, and additional application disclosures.  Although it may also be prepared by either a mortgage broker, the creditor is responsible for complying with all Loan Estimate requirements.

The requirement of providing a Loan Estimate is triggered by a "loan application submission" consisting of the consumer's name, income, Social Security number, property's address and estimated value, and the loan's amount.  Prior to receiving these specific items, lenders may provide consumers with a pre-application written estimate containing a disclaimer that it is not an official Loan Estimate.

The Disclosure Rules require providing a Loan Estimate within three (3) business days of the application's submission and at least seven (7) business days before the loan's closing.

The Loan Estimate is three (3) pages long, the first of which contains information identifying the borrower and loan, loan terms, projected monthly payments, total estimated closing costs, and total estimated cash needed to close.  The second page breaks down the closing costs including prepaid and escrowed amount information and cash needed to close.  The third page summarizes five (5) years of loan costs (for comparison with other loan products) and required disclosures regarding the appraisal's delivery, whether the loan is "assumable", it's servicing may be transferred and homeowner's insurance is required, and late payment fee information.

Closing Disclosure

Replacing both the HUD-1 and final Truth in Lending Disclosure, the Closing Disclosure provides a summary of the actual loan terms, the loan costs, other settlement costs, and additional closing disclosures.

The Closing Disclosure must be provided to the consumer at least three (3) business days before the loan's closing.  If "changes" occur between issuance and closing, an updated Closing Disclosure must be provided within another three (3) business days or at closing.  "Changes requiring an updated Closing Disclosure" include APR changes of greater than .125% (or .25% for loans with irregular payments or periods), changes to the loan product, or the addition of a prepayment penalty.

The Closing Disclosure is five (5) pages long, the first of which mirrors the Loan Estimate's first page identifying the borrower and loan, the loan terms, the projected monthly payments, the total closing costs and total cash needed to close.  The second page contains a closing costs itemization including whether each particular cost is paid by the borrower, seller, or a third party.  The third page includes a calculation of the cash needed to close and a summary of the borrower's transaction and seller's transaction.  The fourth and fifth pages contain additional loan disclosures (including whether loan is assumable, has demand or negative amortization features, escrow requirements, late payment information, and whether servicing may be transferred) and the creditor, brokers, and settlement agent's contact information.

The fifth page also includes a calculation of the total payments, finance charges, amount financed, and total interest percentage over the loan's terms.

Closing Costs Increase Restrictions

The Disclosure Rules limit the circumstances in which borrowers may be required to pay more for settlement services than the amount stated on the Loan Estimate.

Unless an exception applies, the following service charges for cannot increase: (1) creditor's or mortgage broker's services charges; (2) charges for services provided by creditor or mortgage broker's affiliate; and (3) charges for services for which the creditor or mortgage broker does not permit the consumer to shop for a provider.

Charges for other "creditor required services" may increase but not by more than 10% percent unless: (1) consumer asks for a change; (2) consumer chooses a service provider that was not identified by creditor; (3) information provided at application was inaccurate or becomes inaccurate; or (4) the Loan Estimate expires.

Recordkeeping

The Disclosure Rules require creditors to retain records evidencing compliance with Loan Estimate and Closing Disclosure requirements for three (3) years from the later of the closing or when the disclosure was required.

Consistent with existing RESPA requirements, a creditor must retain the Closing Disclosure and all related documents for five (5) years after closing.

Punitive Damages Recoverable for Fraudulent Transfers

Although Pennsylvania's Supreme Court has yet to rule on the issue, in last month's Klein v. Weidner, --- F.3d ----, 2013 WL 4712752 (3d Cir. 2013) opinion, the U.S. Court of Appeals for the Third Circuit ruled that Pennsylvania's Uniform Fraudulent Transfer Act, 12 Pa. Cons. Stat. Ann. §5-101, Et. Seq ("Act") permits creditors to obtain punitive damages from debtors who conceal assets through property and business transfers.
 

The dispute in Klein v. Weidner stemmed from Defendant's purchasing and transferring of real estate and a limited liability company to himself and current wife as "tenants by the entireties" to evade a $548,797 "unpaid child and spousal support judgment" while telling Plaintiff ex-wife she'd never see "a red cent" from him.

The Third Circuit unanimously affirmed the trial court's holding that Defendant pay both $548,797 in back child and spousal payments and $548,797 in punitive damages due to his outrageous fraudulent transfers conduct.

The Third Circuit held that "although the Act did not explicitly authorize punitive damages, its 'remedies of creditors' section contains a critical 'catch-all' provision - -§5107(a)(3)(iii) - - expressly providing that a creditor may obtain 'any other relief the circumstances may require.'"  2013 WL 4712752 p 9.

The Third Circuit held that because Defendant presented "an example of outrageous and intolerable behavior that punitive damages are designed to punish and deter", "where [the] plaintiff can show outrageous conduct, coupled with a fraudulent transfer, a court may award punitive damages" under the Act.  Id.

By authorizing recovery of punitive damages under the Act, the Klein v. Weidner opinion will be spectacularly helpful for judgment creditors.

Previously, other than paying what they already owed, little leverage existed to prevent  shifty judgment debtors from fraudulently transferring assets.  

By imposing harsh consequences for fraudulently transferring assets and increasing the focus on the wrongdoer's shenanigans, Klein v. Weidner gives the Act teeth, fortifies judgment creditors' leverage, and provides incentive for judgment debtors not to hide assets.

Insurance's Consent to Settle Clauses

In Babcock & Wilcox Co. v. American Nuclear Insurers, --- A.3d ----, 2013 WL 3456969 (Pa.Super. 2013), the Superior Court of Pennsylvania addressed whether an insured lacking its insurer's consent may settle a case without violating the insured’s duty to cooperate under an insurance policy's "Consent to Settlement Clauses".  

Like virtually all commercial insurance policies, the American Nuclear Insurers ("ANI") policy at issue in Babcock & Wilcox Co. contained a "consent to settle clause" providing that the insured Babcock & Wilcox Co. ("B&W") "shall not, except at its own cost, make any payment, assume any obligation or incur any expense".  

After ANI paid for independent defense counsel to defend B&W under a reservation of rights in radiation exposure claims, B&W entered into a $95 million settlement that was less than the insurance policy’s limits and to which ANI objected.  ANI then refused to reimburse B&W arguing that it had violated the policy's "consent to settle" clause.  

Although the trial court ruled - - and the jury found - - that the settlement was fair, reasonable, and non-collusive and that B&W was entitled to reimbursement, the Superior Court reversed adopting the Taylor v. Safeco Ins. Co., 361 So.2d 743 (Fla. Ct. App. 1998) rule that an insured’s obligation to honor "consent to settlement clauses" depends on whether the insured accepts an insurer’s tender of a qualified defense. 2013 WL 3456969, pg. 22. 

If it accepts a defense subject to a reservation tendered by the insurer, the insured is bound to the consent to settlement clauses' terms and the insurer retains full control of the litigation.  Id.  Under these circumstances, if an insurer objects to settlement, the insurer is only responsible for the settlement costs if the insured can show that the insurer’s refusal to accept the settlement constituted "bad faith".  2013 WL 3456969, pg. 22. 

Conversely, if it declines an insurer’s tender of a qualified defense and furnishes its own defense, the insured retains full control of the litigation including control over a settlement decision, and the insured may recover its fair and reasonable defense and indemnity costs even when the insurer objects to settlement, if the settlement was entered into in good faith.  Id.

Fair Debt Collection Practices Act's "Debt Validity Notice Requirement

Everything's harder in New York, even collecting a debt.

In Hooks v. Forman, Holt, Eliades & Ravin, LLC, --- F.3d ---, 2013 WL 2321409 (May 29, 2013), the Second Circuit Court of Appeals ruled that letters stating that debtors could only dispute debts in writing and not orally violated the Fair Debt Collection Practices Act, 15 U.S.C. §§1592, et seq. ("Act") "debt validity notice provision".

 

Thus, unlike Third Circuit states like Pennsylvania and New Jersey, New York debtors may derail debt collection efforts with a phone call or voice mail arguing that they don't owe any money.

Because this Second Circuit holding contradicts the Third Circuit's "consumer debtor must send a written statement to contest debt's validity" requirement, until issue is resolved by the United States Supreme Court mayhem will ensue.

Act's "Disputing Validity of Debt" Notice Requirement

The Act regulates "debt collection activity" on "family, personal or household purposes" transactions and defines a “communication” as the “conveying of information regarding a debt directly or indirectly to any person through any medium.  15 U.S.C. §1692(a).

The Act requires a debt collector to send a written notice to any consumer debtor with whom it communicates in connection with the collection of a debt containing “a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector.” 15 U.S.C. §1692g(a)(3).

Although it fails to specify whether the consumer's disputation must be written, the Act provides that if the consumer “notifies the debt collector in writing” that the debt is disputed, the debt collector must “cease collection of the debt, or any disputed portion thereof" until the debt collector mails verification of the to the debt collector and, upon the consumer's "written request", provide the original creditor's name and address if different from the current creditor.  15 U.S.C. §1692g(a)(4)&(5).

Hooks v. Forman Opinion

After failing to make timeshare mortgage payments, the Hooks v. Forman consumers received a collection notice letter setting forth that unless "written notice" disputing the debt was received within 30 days, the debt collector would presume the debt was valid ("Notice"). 

The consumers sued the debt collectors in the United States District Court for the Southern District of New York alleging that because it required that a challenge to the debt's validity be made in writing, the Notice failed to comply with §1692g(a)(3) of the Act.  The District Court granted the debt collector's dismissal motion concluding that a notice requiring that disputes must be presented in writing does not violate §1692g(a)(3).

In vacating the district court’s complaint dismissal, the Second Circuit held that under the statute's “straightforward language”, the Act does not require a written dispute to avoid an assumption by the debt collector of the debt's validity.

The Second Circuit distinguished language in different portions of §1692g, some portions of which require written disputes or requests from debtors for various rights to apply, from that which deals with a debt's presumed validity holding that because “[t]he right to dispute a debt is the most fundamental” of those set forth in §1692g and “it was reasonable to ensure that it could be exercised by consumer debtors who may have some difficulty with making a timely written challenge”, requiring consumers to take extra step of putting a dispute in writing before claiming “the more burdensome set of rights” afforded by §1692g (like requiring all debt collection efforts to cease) made sense.

Circuit Split Requires Supreme Court "Debt Disputation" Clarification

While whether a "debt disputation" may be oral or must be in writing is an issue of first impression for the 2nd Circuit, two (2) other circuits have considered the issue reaching different conclusions.

In Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991), the Third Circuit concluded that a  consumer debtor must send a written statement to contest the debt's validity holding that "reading §1692(a)(3) not to impose a writing requirement would result in an incoherent. system in light of the explicit writing requirements in §§ 1692g(a)(4), 1692g(a)(5), and 1692g(b)".

Conversely, in Camacho v. Bridgeport Financial, Inc., 430 F.3d 1078 (9th Cir. 2005), the Ninth Circuit concluded that a consumer debtor need not send a writing to contest the debt under §1692g(a)(3) for reasons including that the Act's contrasting explicit writing requirements "showed that Congress did not intend to impose a writing requirement".

Schain Law Firm: 5 Year "Mortgage Foreclosure Judge" Anniversary

Five (5) years ago I was appointed as a Philadelphia Mortgage Foreclosure Court Judge Pro Tempore and the results have been astonishing.

 

Since 1998's "mortgage foreclosure meltdown", residential foreclosure cases have comprised 19% of Philadelphia's civil case inventory.

 

Philadelphia's conciliation program requires lenders to meet face-to-face with residential homeowners in every owner-occupied property subject to foreclosure before the foreclosure proceeds.

Each meeting is supervised by an experienced consumer lending attorney serving as a "Judge Pro Tempore" seeking to forge a permanent resolution ranging from workout alternatives including forbearance and modification agreements.

 

Each week between 150 to 300 cases appear before the foreclosure court and the results have been spectacularly impressive.

 

Over the past sixty (60) months, our nationally renowned diversion program has served 23,000 Philadelphia residents and saved over 5,000 homes from sheriff's sale.

 

In 2008, 95.3% of foreclosures were resolved in 7 to 13 months; in 2009, 53.7% were resolved in 7 to 13 months, in 2010, 88.6% were resolved in 7 to 13 months, and in 2011, 67% were resolved in 7 to 13 months.

Despite these impressive statistics and case backlog reduction, 6304 foreclosures are pending and the number of filings have not diminished.

 

Further, new issues keep emerging including foreclosures of seniors living alone whom die, are deemed mentally incompetent or face crippling financial trouble of which their families are unaware.

 

Philadelphia's Mortgage Foreclosure program has implemented an innovative dual-track process integrating the handling of both the foreclosure and estate situation to simplify and accelerate resolving the dispute.

Supreme Court Amends "Non Pros Judgment for Inactivity" Rules

In an Order dated April 5, 2013, Pennsylvania's Supreme Court amended Rule 3051 of the Pennsylvania Rules of Civil Procedure to allow a plaintiff to open a "judgment of non pros for inactivity" by showing that the defense failed to meet each of Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998) three (3) requirements for the judgment's entry, including a showing of "actual prejudice".

A "non pros judgment for inactivity" occurs when a court dismisses case as a "consequence of long delay of prosecution" and "when a defendant's position or rights are so prejudiced by length of time and inexcusable delay, plus attendant facts and circumstances, that it would be an injustice to permit presently the assertion of a claim against him.”  Jacobs v. Halloran, 710 A.2d at 1102.

Formerly, Pennsylvania Rules of Civil Procedure 3051 required plaintiffs seeking non pros judgment relief to timely file a petition demonstrating "a reasonable explanation or legitimate excuse" for the inactivity and a meritorious cause of action.  Pa. R. Civ. P. 3051(b).

The new amendment adds a third subdivision to Rule 3051 - - Subdivision (c) - - stating that a plaintiff seeking to open a non pros judgment for inactivity must allege facts showing that the petition is timely filed, a meritorious cause of action and the record of the proceedings granting the non pros judgment does not support a finding that the following "non pros judgment's entry for inactivity" requirements have been satisfied: (i) there has been a lack of due diligence on the part of the plaintiff for failure to proceed with reasonable promptitude, (ii) the plaintiff has failed to show a compelling reason for the delay, and (iii) the delay has caused actual prejudice to the defendant.

Subdivision (c) does not apply to non pros judgments for failure to file a complaint after a writ of summons has been filed and the new subdivision only applies to cases in which, following a complaint's filing, an extended docket activity lull occurs.

Unlike Subdivisions (a) and (b) of Rule 3051, which imply that prejudice will be automatically deemed as resulting from a two (2) year prosecution delay, the rule change expressly requires a defendant to show actual prejudice to maintain a non pros judgment.

The newly adopted amendment also changes Rule 3051's subdivision (b)(2) (which had previously stated, "If the relief sought includes the opening of the judgment, the petition shall allege facts showing that ... (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay") by adding the clause "except as provided in Subdivision (c)" and replacing "inactivity or delay" with "conduct that gave rise to the entry of judgment of non pros".

A reasonable reading of the rule's new language suggests that a plaintiff can open a non pros judgment for inactivity if they can show that the defendant was not prejudiced by the delay, even if the plaintiff does not have a compelling reason for the delay or showed insufficient due diligence in moving the proceedings along.

According to the Supreme Court's order, the change is scheduled to take effect May 5, 2013.

3rd Circuit Extends TILA Rescission Limitations Deadline

In its Sherzer v. Homestar Mortgage Services, 2013 WL 425835 (3d Cir. 2013) opinion, the Third Circuit Court of Appeals reversed its prior position and held that mailing a rescission demand letter - - and not filing a lawsuit - - satisfies the Truth in Lending Act, 15 U.S.C. §§1601 et seq.'s ("TILA") three (3) year limitations period.  

Specifically, TILA, which allows consumers to rescind residential mortgage loans following lender's failure to make required disclosures, sets forth that the "right of rescission" expires three (3) years after the loan is closed.  15 U.S.C. §1635(f). 

In Sherzer v. Homestar Mortgage Services, the Third Circuit reversed the district court’s dismissal of the action and rejected the lender’s argument that the lawsuit was not timely because it was not filed within three (3) years of the loan's closing holding that by mailing a rescission notice within the three (3) year period the borrowers had timely rescinded the loan. 

The Third Circuit found that the borrowers’ position was not foreclosed by the U.S. Supreme Court’s TILA interpretation in Beach v. Ocwen Federal Bank, 523 U.S. 410, 411–13, 118 S.Ct. 1408 (1998) which the Sherzer opinion interpreted as not addressing how a borrower must exercise his rescission right within such period to prevent its extinguishment. 

The Sherzer opinion also contradicts the Third Circuit’s 2011 unpublished Williams v. Wells Fargo Home Mortgage, Inc., 410 Fed. Appx. 495 (3d Cir. 2011) decision in which it deemed a borrower’s rescission claim "untimely" because, despite having sent a rescission notice within three (3) years of the closing, the borrower did not file her lawsuit within such period. 

Further, the Third Circuit rejected concerns that allowing borrowers to rescind soley by written notice could indefinitely cloud a lender’s title because uncertainty about the right to rescind could continue until either the borrower filed a rescission lawsuit or the lender brought a foreclosure or declaratory judgment action.  

Instead, despite acknowledging that its holding “could potentially impose additional costs on banks, as it costs little for an obligor to send a letter to the lender while, on the other hand, the lender would incur some cost to sue to determine title", the Third Circuit found  that “[o]nce alerted to the cloud on its title, a lender could sue to confirm that the obligor’s rescission was invalid or do nothing and assume the risk that a court might later rule that the rescission was valid.”  2013 WL 425835 at pg. 7-9. 

The Third Circuit joins the Eleventh and Fourth Circuits in holding that notice alone within the three (3) year period is sufficient to validly exercise a right to rescind whereas the Ninth, Tenth and First Circuits adopt the contrary view.  See Gilbert v. Residential Funding LLC, 678 F.3d 271, 277–78 (4th Cir. 2012); Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1139–40 (11th Cir. 1992);  Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1188 (10th Cir. 2012); Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1172 (9th Cir. 2003); Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 54–55 (1st Cir. 2002). 

In light of this "circuit split" if a petition for certiorari is filed it is likely that the U.S. Supreme Court will agree to hear the case.

Third Party Communication Under Fair Debt Collection Practices Act

Two (2) recent opinions provide guidance on acceptable "third party communication" under the Fair Debt Collection Practices Act, 15 U.S.C. §§1592, et seq.  ("Act") barring collection letters addressed to a debtor's employer but easing restrictions on "dunning voicemails".

"Fair Debt Collection Practices Act" 3rd Party Communications Bar   

The Act regulates "debt collection activity" on "family, personal or household purposes" transactions.  15 U.S.C. §1692(a).

The Act defines a “communication” as the “conveying of information regarding a debt directly or indirectly to any person through any medium.”  Id.

The Act prohibits a debt collector, without debtor's consent, from communicating about collecting a debt with one other than a debtor and his attorney, consumer reporting agencies, a creditor and its attorney, or a debt collector's attorney.  15 U.S.C. §1692c(b).

Prohibition on Addressing Collection Letters to Debtor's Employers 

In Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015 (9th Cir. 2012), the U.S. Court of Appeals for the Ninth Circuit ruled that sending a collection letter to debtor's employer's address addressed to debtor "in care of" employer without debtor's consent forms a per se violation of the Act's third-party communications bar.

The Evon plaintiff's employer had opened the letter addressed to her, the envelope for which listed defendant "law office" as the return address.

The Ninth Circuit ruled that the debt collector "knew or could reasonably anticipate" that a letter sent to a debtor's employer "might be opened and read by someone other than the debtor", because of the return address, someone handling plaintiff's mail would know that she "was receiving legal mail, a fact many people would prefer be kept private", and "disclosing a consumer's personal affairs to his or her employer is a form of collection abuse."  688 F.3d at 1019.

Non Specific Dunning Voice-Mail Permitted

In Zortman v. J.C. Christensen & Associates, Inc., No. 10-3086 (D. Minn. May 2, 2012), the Minnesota District Court held that a voicemail containing caller’s name and identifying him as a debt collector with “an important message” was not a prohibited “communication” under the Act.

The message, left on plaintiff’s cellular phone, included the debt collector’s phone number but did not identify a consumer or a debt and was heard by plaintiff's children to whom she had lent her phone.

Because the voicemail message was not directed to the plaintiff by name and did not identify a debt, the Zortman Court message ruled that it would not convey that the plaintiff was being called in connection with a debt and was unwilling to find “indirect communications” based on “inferences or assumptions by an unintended listener” that the plaintiff was the intended recipient or that the call, because it was from a debt collector, was necessarily to collect a debt.

The District Court also found that the “important message” language did not “convert [the debt collector’s] simple self-identification and telephone number into an indirect conveyance of information about a debt” and use of “important” conveyed no substantive information about the call’s purpose.

According to the Zortman Court, the Act as imposes no "third party communication" liability based on a voicemail message revealing no more than a hang-up call, a cellular phone’s “missed call” log, caller ID, or an Internet search for caller’s phone number.

Impact of Evon and Zortman Opinions

Beyond barring collection letters addressed to a debtor's employer and easing non specific "dunning voicemail" restrictions, the Evon and Zortman opinions provide guidance on acceptable "third party communications" under the Act.

First, the Evon Court based its ruling on the Federal Trade Commission's Act Staff Commentary providing that a debt collector cannot "send a written message that is easily accessible to third parties" or use an "in care of" letter unless the consumer "lives at, or accepts mail at, the other party's address." 

Thus, the lesson of Evon is that communications' easy access by a third party is a heavily weighed factor in deeming it a wrongful third party communication.

Second, the Zortman opinion eases the "collection voicemail restrictions" imposed by the Foti v. NCO Financial Systems, Inc., 424 F.Supp.2d 643 (2006) of requiring a debt collector to either hang up or leave an awkward, elaborately scripted message. 

Pursuant to Zortman, voice-mails that are not directed to the plaintiff by name nor identify a debt do not form a wrongful communications under the Act.