6th Circuit Says V/M Message Left By Debt Collector at Debtor’s Work Was Not a “Communication” under FDCPA Because It Did Not Convey Information about the Debt

In Brown v. Van Ru Credit Corp., 2015 WL 6220521, at *2-5 (C.A.6 (Mich.),2015), the Court of Appeals for the Sixth Circuit affirmed the granting of judgment on the pleadings in favor of a debt collector based on the allegation that a voicemail message left violated the FDCPA.  In Brown, 

a Van Ru employee called Brown’s business and left the following voicemail in the business’s “general mail box”, “Good morning, my name is Kay and I’m calling from Van Ru Credit Corporation. If someone from the payroll department can please return my phone call my phone number is (877) 419–5627 and the reference number is * * * * *488; again my telephone number is (877) 419–5627 and reference number is * * * * *488.”  The Court of Appeals found no “communication” under the FDCPA because no information about the debt was conveyed.

15 U.S.C. § 1692c(b). The FDCPA defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). To convey information regarding a debt, a communication must at a minimum imply the existence of a debt. Otherwise, whatever information is conveyed cannot be understood as “regarding a debt.” Van Ru’s voicemail message—which does little more than ask someone from Brown’s business’s payroll department to call back—does not do so.  Under the circumstances alleged in Brown’s complaint, Van Ru’s voicemail does not convey information regarding Brown’s debt. An employee of Brown’s business who hears this message would understand it to concern Brown’s debt only in the most exceptional of circumstances. Nothing in the message even suggests that any kind of debt exists. Brown argues that the presence of the word “Credit” in “Van Ru Credit Corporation” clearly refers to debt collection. But the word “credit” refers to a category of financial activities far broader than debt collection. The other pieces of information in the voicemail—the reference number and the toll-free number to call back—only give the impression that Van Ru has some kind of business relationship with Brown’s business or someone employed by Brown’s business, or perhaps that Van Ru seeks to create some kind of business relationship. Finally, the fact that the voicemail asks for someone from payroll to call back suggests only that Van Ru is seeking some sort of payroll information, whether about an individual employee or the business as a whole. Taken together, these data do not imply that Brown or anyone else at his business owes debt. It is easy to see how the inquiry could instead relate to any number of other matters (such as, to take one example, a credit check) unrelated to a personal debt covered by the FDCPA. Thus while the voicemail clearly conveys information, it does not convey information regarding a debt; it does not tend to make the listener better informed about the existence or state of Brown’s debt.  What information a message conveys depends partly on context, but Brown does not plead circumstances in which Van Ru’s message would mean more than what the words say. A message that would seem cryptic to a third party may have a clearer import when directed to the debtor, and a message that is part of a series of communications may mean more because of what has already been said. But here, Van Ru’s voicemail, which was not directed to Brown, was preceded only by a single letter that, so far as Brown pleads, did no more than inquire after Brown’s payroll information. Brown does not plead that Harris or anyone else saw the letter, so it may not be appropriate to treat it as part of the context for the voicemail. Regardless, the letter only indicates that the payroll information the voicemail seeks is likely to be Brown’s payroll information. It still does not create a context in which the voicemail suggests anything about Brown’s debt. Therefore, the voicemail does not convey information about a debt and is not a “communication” under the FDCPA.  This application of the definition of “communication” under the FDCPA is consistent with the FDCPA’s purposes, the Fair Trade Commission’s commentary, and the decision of the Tenth Circuit in Marx v. General Revenue Corp., 668 F.3d 1174 (10th Cir.2011). . . . The non-binding commentary of the Federal Trade Commission lends further support to this approach. In rejecting an interpretation that would categorically exclude from the definition of “communication” all communications that do not directly refer to the existence of a debt, the Commission notes that Congress intended “a common sense approach” to the definition of “communication.” Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.Reg. 50097, 50099 (Dec. 13, 1988). . . .  Finally, this approach is consistent with that adopted by the Tenth Circuit, the only other circuit to consider the definition of “communication” in § 1692a(2) as applied to a third-party communication. Marx, 668 F.3d at 1177–78. Finally, requiring that a communication at a minimum imply or refer to the existence of a debt is consistent with the text of the FDCPA as a whole.