To Leave a Voicemail, or Not to Leave a Voicemail: A Collection Industry Dilemna

To Leave a Voicemail, or Not to Leave a Voicemail: A Collection Industry Dilemna
by Scott Paris

Over the past five years, debt collection agencies and law firms have had to struggle with the question of whether or not to leave voicemail messages for debtors. The source of this quagmire, and its potential consequences, lay in the Federal Fair Debt Collection Practices Act (FDCPA), and its interpretation by Federal Courts since 2007. It should be noted at the outset that under federal law, communications from an original creditor does not fall under the rubric of the FDCPA. However, individual state laws may have their own requirements for communications from original creditors. This article only addresses voicemail messages left by collection agencies, law firms or third party collection entities on your behalf.

The FDCPA was enacted in 1977 to eliminate abusive debt collection practices by debt collectors and to ensure that those collectors who refrain from using abusive debt collection practices are not competitively disadvantaged. One of the things the FDCPA regulates is communications with debtors by debt collectors. Since the FDCPA was passed over 30 years ago, many of the more recent forms of communication (voicemail, electronic mail, text messaging, etc.) were not contemplated by the act. Therefore, courts have had to apply the law to these potential forms of “communications,” and set standards for what must and must not, or can and cannot be disclosed by debt collectors.

The FDCPA states that when a debt collector communicates with a debtor, they must make certain disclosures: Namely, the debt collector must identify themselves as a “debt collector.” However, debt collectors are forbidden from disclosing this information to third parties. Courts thus far have held that a voicemail message is a “communication” for FDCPA purposes. Therefore, the debt collector must identify themselves. Given the inherent risk of someone else hearing that voicemail message, debt collectors open themselves up to potential liability for the prohibition on third party communications. Here lies the conundrum.

There are two possible solutions to this problem: First, a debt collector can choose to not leave a voicemail message. For some agencies and law firms, this is not a feasible option, as the goal is to try and elicit a response from a debtor. The second option is to leave a voicemail message, tailored to avoiding third party communication, while simultaneously complying with the other dictates of the FDCPA. The following language is what has been utilized, by many agencies and firms to resolve this issue:

“This is a message for [debtor]. If this is not [debtor], please hang up or disconnect. If you are [debtor], please continue to listen to this message. There will now be a 3 second pause (wait three seconds).

By continuing to listen to this message, you confirm that you are [debtor]. This is [collector name] from ABC Law Firm. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please return my call to 800-555-1212.”

This proposed message is intended to avoid third party communications, while simultaneously enticing a debtor to return a phone call in compliance with the FDCPA. Even though this language may remedy the problems described in this article, there are still some inherent risks. First, this language does not guarantee that a third party will not listen to this message. The language is intended to protect the collection agency or law firm if this does happen, and is based on existing case law. Regardless, the specific language has not been tested by the courts yet. Additionally, if a law firm chooses to not leave a voicemail message, there is some debate that caller ID disclosing the name and number of a collection firm may constitute a communication, and require FDCPA disclosures. As traditional forms of communication broaden or open up to new technology, this issue will continue to arise.

There is a pending case out of California that may further define the FDCPA’s application to voicemail messages, and/or the suggested language that should be used when leaving a voicemail message. However, the quoted language above is the best answer to the current state of the law on this issue. Despite the industry’s current antidote to the voicemail FDCPA dilemma, each firm or agency must make a decision based upon many factors, including their own state laws, the goals of their clients and a prudent risk/benefit analysis when deciding how to handle phone calls to debtors. The difficulties presented in either option must be considered, so collection agencies and firms should proceed at their own risk. Original creditors must also be wary of state laws that may place additional requirements upon them when making phone calls to debtors.