District Court (Mo.) Finds Context Matters; Says FDCPA Defendant’s V/M Message That Did Not Disclose It Was From a “Debt Collector” Did Not Violate the FDCPA Because the Debtor Knew Who It Was From

In Lopez v. Mid–America Accounts Control Bureau, 2014 WL 6908140 (W.D.Mo. 2014), the District Court granted summary judgment to an FDCPA defendant whose voicemail message to the debtor did not identify the call as being from a debt collector.

Plaintiff claims Defendant’s single voicemail on May 10, 2013, violated the FDCPA because the caller did not identify herself as a debt collector. It is undisputed that the voicemail message was as follows:  “This is Amy Thomas with Mid–America Collections. I need you to Give me a call back at 417–627–7990.”  It is further undisputed, that two days earlier Plaintiff had a phone conversation with Defendant’s representative, Thomas, in which Thomas identified herself as a debt collector, discussed the debt owed, asked permission to leave a voicemail, was granted permission to do so and Plaintiff indicated she would call Thomas back the next day. When Plaintiff did not call back, Thomas called Plaintiff and left the voicemail message at issue.

The District Court found that the Defendant’s voicemail message did not violate the FDCPA’s requirement of informing the debtor that the call was from a debt collector because the Plaintiff knew it was from a debt collector — context mattered.

Looking at the undisputed facts, Plaintiff admits Defendant made a full disclosure in its initial communication. Based on Plaintiff’s initial phone call with Thomas, using an unsophisticated consumer approach, the voicemail left two days later based on permission expressly extended by plaintiff would clearly convey to plaintiff that the communication was from a debt collector—the same person she had talked to within the last 48 hours, promised to call back and is a person identified in the voicemail as the same employee of Mid–America Collections.  The purpose of the FDCPA is to prohibit debt collectors from using false representations or deceptive means to collect debt. Here, there is no evidence of any such practice. Rather, Plaintiff was contacted by the same individual (as opposed to a different representative from Defendant) and was fully aware of the nature of the call based on her prior communication.  In Pace v. Portfolio Recovery Assoc., LLC., the Court analyzed the plaintiff’s claims from the unsophisticated consumer perspective and held that “plaintiff’s testimony reveals that during each phone contact he knew he was speaking with a representative of defendant either through caller ID or a verbal announcement by the representative.” 872 F.Supp.2d 861, 865 (W.D.Mo.2012)(granting summary judgment to defendant). The Court further stated with regard to additional communications “although the notice could have been worded more closely to mirror the language contained in the FDCPA, it was not false or misleading …” Id. at 867.  Plaintiff argues that the facts and law in Pace are distinguishable. While it is true the factual scenario is different, the Court’s application of the “unsophisticated consumer” standard under the FDCPA is applicable to the facts in this case. Plaintiff contends that “she has made no admission that she knew who Defendant was or why it was calling.” However, the undisputed facts are that on May 8, 2013, Plaintiff and Defendant’s representative, Thomas, had a phone communication and full disclosures were made during that call. In addition, Plaintiff gave Thomas permission to leave her a voicemail knowing who Thomas worked for and the purpose of the call. Within 48 hours, Defendant’s same representative, Thomas, called Plaintiff and used the company’s name in the voicemail. Even if Plaintiff does not “admit” she knew who Defendant was or why it was calling, the Court finds, when reviewing the evidence before it under the unsophisticated consumer approach, that Plaintiff could not have been deceived as to who Thomas was or the purpose of the voicemail.  Here, this Court is unpersuaded by Plaintiff’s argument that Thomas did not use the word “debt” in her voicemail message and therefore that she was unaware of the purpose of the phone call. While the voicemail did indicate Thomas was calling from “Mid–America Collections,” it is more persuasive that two days prior Plaintiff talked to Thomas, was fully advised of the purpose of the call, promised to call Thomas the next day and then gave permission for Thomas to call back and leave a message. Based on a review of the record before the Court, there could be no confusion regarding the identity of the representative who left the voicemail message or the purpose of the call. There is simply no evidence, when viewed through the eyes of an unsophisticated consumer, that Defendant used false, deceptive or misleading representations in its communication with Plaintiff regarding collection of a debt. As such, as a matter of law, no genuine issue of material fact exists to survive summary judgment.