District Court (N.Y.) Says FDCPA Hasn’t Kept Up with Technology; Holds that Overheard V/M Did Not Violate FDCPA

In Zweigenhaft v. Receivables Performance Management, LLC, 2014 WL 6085912 (E.D.N.Y. 2014), Judge Dearie found a voicemail message did not violate the FDCPA. The case involved a voicemail message stating that a call was from a debt collector coupled with a return phone call where the voicemail message’s intended recipient is disclosed to a third-party.

Courts addressing whether overheard voicemails violate § 1692c(b) are divided into two main camps. See Zachary R. Cormier, When a Communication Is Not a “Communication”: The Ever Growing Jurisdictional Split Regarding the Scope of Permissible Third Party Contacts Under the Fair Debt Collection Practices Act, 14 J. Bus. & Sec. L. 97 (2013). The majority focus on the FDCPA’s goal of protecting consumers from abusive debt collection practices and hold that any third-party overheard voicemail left by a debt collector is a communication under the FDCPA. Therefore, if a third party overhears the message, no matter what the circumstances, the debt collector has violated § 1692c(b) regardless of the message’s con-tent. See, e.g., Marisco v. NCO Fin. Sys., Inc., 946 F.Supp.2d 287 (E.D.N.Y.2013); Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643 (S.D.N.Y.2006). However, other courts have focused on the FDCPA’s curtailed definition of “communication” and taken a more limited view. Some have held that an overheard voicemail does not run afoul of § 1692c(b) unless it conveys some “information regarding a debt.” See, e.g., Marx v. Gen. Revenue Corp., 668 F.3d 1174, 1177 (10th Cir.2011). And some have held that the FDCPA does not extend to inadvertent communications and “essentially immunize debt collectors from liability under 15 U.S.C. § 1692c(b) unless the debt collectors have ‘reason to suspect’ that a third party would overhear the message.’ ” Marisco, 946 F.Supp.2d at 292 (citing Mostiller v. Chase Asset Recovery Corp., No. 09–CV–218, 2010 WL 335023 (W.D.N.Y. Jan. 22, 2010)). . . .¶ Even as the statute currently stands, Mr. Zweigenhaft’s argument cannot pass muster in light of the overall purpose of the FDCPA: to protect consumers from abusive debt collection practices and to do so “without imposing unnecessary restrictions on ethical debt collectors.” S.Rep. No. 95–382, at 1. The statute instructs us on what abusive practices look like: “use or threat of use of violence”; “use of obscene or profane language”; publishing lists of consumers who refuse to pay debts; “[c]ausing a telephone to ring … repeatedly or continuously with intent to annoy, abuse or harass”; and, ironically, “the placement of telephone calls without meaningful disclosure of the caller’s identity.” 15 U.S.C. § 1692d. ¶ To hold that RPM’s actions violated the statute would place an undue restriction on an ethical debt collector in light of our society’s common use of communication technology. RPM left Mr. Zweigen-haft one voicemail message, providing the minimum amount of information to remain compliant with the FDCPA and protect his privacy. See 15 U.S.C. § 1692d(6), e(l 1). As for the follow-up telephone conversation (which Mr. Zweigenhaft’s son initiated), the RPM representative only mentioned Mr. Zweigen-haft’s name after verifying that someone was calling from his number; and as soon as she learned that Abra Zweigenhaft was not the caller, she volunteered to take the number off RPM’s list and wished him a good day. She never mentioned Mr. Zweigenhaft owed a debt, never disclosed information about any debt, and an audio review of the conversation shows that she was thoroughly professional and courteous. ¶ Allowing debt collectors to leave voicemail messages when trying to collect a debt is in the interest of debtors and debt collectors alike. The alternative is numerous, harassing hang-up phone calls that are a nuisance to the debtor and ineffective for the debt collector. Zortman, 870 F.Supp.2d at 706–07. Faulting debt collectors for ensuring that they are speaking to the correct individual when they receive a return call is similarly unappealing. Indeed, that practice protects debtors’ privacy interests. Mr. Zweigenhaft argues that RPM should have asked “who is calling” rather than “is this Abra Zweigenhaft.” But individuals may be hesitant to disclose their identity to a debt collection company, so this approach has limitations as well. It is not for this Court to delineate the specific requirements debt collectors must adhere to when utilizing voicemail technology. But here, RPM acted with care and caution to protect Mr. Zweigenhaft’s privacy, while availing itself of widely used technology to contact him. It defies common sense and the purpose of the FDCPA to categorize its actions as violating the statute.