In Schaired v. Monterey Fin. Servs., Inc., No. 22-cv-0736-BAS-MDD, 2023 U.S. Dist. LEXIS 12339, at *18-22 (S.D. Cal. Jan. 24, 2023), Judge Bashant denied leave to amend to add a theory that a debt collector’s subsequent communications did not say, “This communication is from a debt collector” but, instead, said, “This is an attempt to collect a debt.”. So, some context matters in debt collection.
Schaired provides an exemplar MFSI voicemail, which states:
This is Monterey Financial Services with an important message. This is an attempt to collect a debt. Please do not erase this message until you call us at 877-444-9967. Again, that number is 877-444-9967.
This is Monterey Financial Services with an important message. This is an attempt to collect a debt. Please do not erase this message until you call us at 877-444-9967. Again, that number is 877-444-9967.
(Am. Compl. ¶ 26.) Schaired alleges MFSI failed to disclose in this communication it “is a debt collector attempting to collect a debt” and, thus, that this subsequent communication violates Section 1692e(11). (Id. ¶ 28.)
MFSI avers this allegation, too, is deficient. Schaired’s theory, MFSI contends, essentially rests upon the premise MSFI violated Section 1692e(11) by failing to employ the precise statutory language from that provision in its voicemail. But MFSI argues Section 1692e(11) does not require debt collectors to identify themselves explicitly as such in order to maintain compliance with that sub-provision of the FDCPA. (Opp’n at 5 (arguing debt collectors need not “quote verbatim the language of the statute” to comply (quoting Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643, 668 (S.D.N.Y.))).) MFSI avers that its voicemail constitutes a compliant subsequent communication because even the least sophisticated consumer would understand from both (1) MSFI’s self-identification and (2) the inclusion of the statement “this is an attempt to collect a debt,” that the messages were from a debt collector. (Id. at 7.) This Court agrees. As many courts have observed, Section 1692e(11) is not “a magic incantation whose ritual observance is required to avoid the sovereign’s wrath,” and a Section 1692e(11) violation does not arise merely because a debtor employs language that deviates from the precise terminology set forth in the statute when the debt collector’s “purpose of collecting a debt is obvious on the [communication’s] face.” Dutton v. Wolpoff & Abramson, 5 F.3d 649, 656 (3d Cir. 1993); see also Emanuel v. Am. Credit Exch., 870 F.2d 806, 808 (2d Cir. 1989) (“[T]here simply is no requirement that [a communication] quote verbatim the language of the statute.”). Indeed, the Ninth Circuit held recently in Davis v. Hollins Law, “[Section] 1692e(11) does not require a subsequent communication from the debt collector to use any specific language so long as it is sufficient to disclose that the communication is from a debt collector[.]” 832 F.3d at 963. Applying the least sophisticated consumer standard to the facts of this case, and construing the facts in favor of Schaired, it is clear MFSI’s voicemail is “sufficient to disclose to a debtor with a basic level of understanding that the communication at issue was ‘from a debt collector.'” See Davis, 832 F.3d at 968. Schaired had spoken on the phone with MFSI in March 2022; during that conversation Schaired informed MFSI he “wanted to address the subject debt with Westgate directly,” not through an intermediary collector like MFSI. (Am. Compl. ¶ 23.) And when MFSI left Schaired a voicemail no more than two months later, it not only identified itself by name but stated that the call was “an attempt to collect a debt.” (Am. Compl. ¶ 26.) Numerous other tribunals have found a debt collector’s use of precisely the same language is sufficient to inform even the least sophisticated consumer the follow-up communication was from a debt collector. See, e.g., Volden v. Innovative Fin. Sys., Inc., 440 F.3d 947, 955 (8th Cir. 2006) (“Though the letter does not say it is from a debt collector, the fact it is sent in an attempt to collect a debt is sufficient for even the unsophisticated consumer to understand that such a letter is necessarily from a ‘debt collector.'”); Smith v. Select Portfolio Servicing, Inc., No. 18-CV-2525, 2018 WL 3077795, at *2 (E.D. Pa. June 21, 2018) (“By clearly stating that each communication was sent for the purpose of debt collection, [defendant] provided the warnings required to make clear it was acting as a debt collector in accordance with the FDCPA.”); see also Hinds v. AR Res., Inc., Civ. No. 12-2567 (DWF/FLN), 2013 WL 1811322, at *3 (D. Minn. Apr. 30, 2013) (“The Court concludes that [defendant’s] statement—’this is an attempt to collect a debt’—is sufficient to satisfy the requirements of section 1692e(11), as it effectively conveys the fact that [p]laintiff was speaking to a debt collector.” (citation omitted)); cf. Costa v. Nat’l Action Fin. Servs., 634 F. Supp. 2d 1069, 1076 (E.D. Cal. 2007) (finding potential FDCPA violation where debt collector simply identified itself by firm name, but disclosed neither its status as a debt collector nor the purpose of the call); Foti, 424 F. Supp. 2d at 669 (similar). Given the context, MFSI’s voicemail was not “‘false, deceptive, or misleading,’ . . . and would not frustrate consumers’ ability to intelligently chart a course of action in response to a collection effort.” Davis, 832 F.3d at 967-68 (quoting 15 U.S.C. § 1692e; citing Donohue, 592 F.3d at 1034). Indeed, to find otherwise would be “bizarre and idiosyncratic.” See Evon, 688 F.3d at 1027; see also Davis, 832 F.3d at 967.