"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.
