Minnesota court resolves “rock-and-a-hard-place” treatment of voicemail messages under FDCPA, grants summary judgment for debt collector
A May 2, 2012, decision from a Minnesota federal court clarifies a debt collector’s duties when leaving voicemail messages for consumers, providing a new way to resolve a longstanding Catch 22 for debt collectors under the Fair Debt Collection Practices Act (“FDCPA”). The decision occurred in Zortman v. J.C. Christensen & Associates, Inc., No. 10-3086 (JNE/FLN) (D. Minn. May 2, 2012).
The case involved an attempt by a debt collector, J.C. Christensen & Associates, Inc., to collect a consumer debt from Christina Zortman. The debt collector left a voicemail message on Ms. Zortman’s cellular phone, stating, “We have an important message from J.C. Christensen & Associates. This is a call from a debt collector. Please call 866-319-8619.” After Ms. Zortman’s children discovered the message, she sued the debt collector under the FDCPA.
The court’s task was to weigh the competing duties under several sections of the FDCPA that are implicated by a debt collector’s voicemail message. First, 15 U.S.C. § 1692c(b) prohibits debt collectors in most circumstances from “communicat[ing], in connection with the collection of any debt, with any person other than the consumer.” Second, 15 U.S.C. §§ 1692d(6) and e(11) prohibits debt collection communications that do not identify the debt collector.
Given that there is no way to ensure that the intended recipient is the only person to listen to the voicemail message, debt collectors who do not immediately hang up upon reaching voicemail face being caught between what the court called “a rock-and-a-hard place”: either identify themselves and risk communicating with someone other than the debtor in violation of 15 U.S.C. § 1692c(b), or provide no identifying information and face potential liability under 15 U.S.C. §§ 1692d(6) and e(11). The court even noted several cases in which debt collectors were sued for hanging up without leaving messages when the debt collectors blocked their caller identity in an effort to avoid any potential communication.
To resolve this Catch 22 scenario, the court noted “the technical reality that – short of requiring debt collectors to block their numbers – it is virtually impossible to use a telephone without revealing directly or indirectly that a debt collector is calling[.]” The court thus determined that the debt collector’s voicemail message was not a “communication” under 15 U.S.C. § 1692c(b). The court went on to explain that inclusion of the debt collector’s name, and the phrase “important message” were not sufficient to rise to the level of a communication, because neither conveyed any “substantive information” about the message. As a result, the court granted summary judgment in favor of the debt collector.
The court rendered its opinion in the face of contrary federal case law holding that voicemail messages are communications under the FDCPA. While other courts have attempted to navigate through the competing requirements of 15 U.S.C. §§ 1692c(b), d(6), and e(11) by noting the low risk that third parties would retrieve the consumer’s voicemail messages, and still others ignored the conflicting requirements and concluded that debt collectors may simply be unable to leave voicemail messages, the District of Minnesota instead highlighted that the message did not communicate any more “information than would have been obvious in caller ID or could have been acquired in a simple internet search for the caller’s telephone number.”
Troutman Sanders
Financial Services Litigation and Regulatory Compliance Team
Troutman Sanders’ Financial Services Litigation and Regulatory Compliance Team is an accomplished and experienced leader in providing litigation and regulatory advice to a broad spectrum of financial services institutions. Our team is comprised of a dedicated group of trial and regulatory lawyers who have significant experience defending against lawsuits brought under the FDCPA and advising entities in the debt collection industry on FDCPA compliance practices.