Calls from Collection Agency - No Clue Why

They actually said this? I'd call and tell them that by answering the phone they confirm they have committed FDCPA violations by using false and deceptive means to try and collect a debt.

 

"By listening to this message you confirm that you are XXX and that you owe this debt."

That is a real gem! Save it.

I didn't know you could bind a contract or agreement just by having someone listen to a recording. The autodialer doesn't even have a clue who might eventually play the message. It doesn't even specify what debt it is, or who owes it, so I guess whoever hears it must owe whatever they have left over at the end of the month. It even violates disclosure to third parties!

I must be in the wrong business. I thought I had to actually sell a customer a product, which he agreed to buy, and actually deliver it to him, and it had to work, before he owed me anything.

Of course, only a year ago some scam charity was using an autodialer to claim authorization for CC charges, using CC numbers obtained from other "sources".


"If so, what do I say so as not to confirm, commit or obligate myself to anything? "

Just ask for their name and mailing address. If they ask, you could say you need it to send them a package. (You might at some point be sending them a summons.) Don't provide any other info. You shouldn't have to provide identifying information to find out who is calling you. You should be able to track down the company without their help anyway, if they actually attempt to collect from you. If you know your financial affairs are in order, it may not even be a call intended for you, but you may still need to force them to stop harassing you.

If their calls continue, but they won't identify themselves adequately, file complaints with your state AG, and FTC. Send a copy of your tape. They might find it fun.

Have you pulled your reports recently, and are there any unexpected inquiries or collection tradelines?

What number did they leave?

 

First, try to search for their phone number to see if you can find a name to go with them. If that fails go to a payphone, call the number, see what name you hear when you answer, and when you get someone ask for their address, and fax number.

You'll probably get badgered with claims that the only way that they can give that information is if they have your name, etc. DON'T GIVE IT TO THEM. Make sure you get the name of anyone who makes such a claim, because they would have one heck of a time convincing a judge that there is no way for the rep to provide the company's contact information without knowing your identity.

Then send a validation letter, and an 'inconvenient' communications clause to them, if all you have is the phone number that they called. That is all you put on the letter.

I just did this the other day.

You never want to provide them with any information which you don't know that they already have; in my letter the only thing verified was the fact that they had called that number, and that they had left a number on that phone line.

Not even a closing (Sincerely, ME).

 

SAVE THE TAPE

Gib, there is a legal reason for why they provided that disclaimer, but it creates, as you noted, other legal problems for them.

Leaving a message on a message system that they can't guarantee will only be accessed by the debtor is a violation of the FDCPAs third party communications, Edcombs.com comprehensive review of the FDCPA shows case cites for this.

By including a disclaimer that by listening to the message (from this point forwards) that you are XXXXXXX; they can argue that the listener intercepted a private communication by falsely representing that they were in fact the intended recipient.

Note also that the reference to the debt also is mentioned *AFTER* the disclaimer, again its only mentioned after the certification so that they can evade any third-party disclosure claims.

But don't CALL THEM, get their name, address, fax #, and put it into writing that you received a phone message from them, and you have no idea why they called you, and you have no idea what alleged debt you were supposedly certifying by answering your telephone which they inconveniently communicated to you using.

 

"By including a disclaimer that by listening to the message (from this point forwards) that you are XXXXXXX; they can argue that the listener intercepted a private communication by falsely representing that they were in fact the intended recipient."

They would have a pretty weak argument here, since they haven't identified who the intended recipient is. Even corporate boilerplate on e-mails and FAXes is on communications that identifies the intended recipient. These calls could be occurring to work numbers as well as home numbers, where when the origin of ongoing annoying calls and the intended recipient was finally determined, it would result in disclosure of the debt and debtor to the whole office. Other CAs have handled the problem in an FDCPA compliant manner by just saying it is important, please call.

The problem for the caller is they have gone beyond trying to deliver their message in a form where their alleged debtor may receive it discretely without third party disclosure, to both disclosing that it is a call about a debt, AND misrepresenting that receiving their call somehow confirms that the listener agrees they owe the debt, overshadowing FDCPA rights to dispute or request validation.

Since there are unsophisticated consumers who think CAs are the same as CRAs, that CAs just have to send a "subpoena" to your work to garnish your wages, and that CAs don't have to validate debts, and there are CAs who tell them this BS, FDCPA requires written notice by the CA to the alleged debtor of their FDCPA dispute and validation rights. This message overshadows that notice requirement.

 

Ontrack, re read the quote of the disclaimer...

By listening to this message, you confirm that you are Ontrack, and that you owe this debt... The second part is the hardest to rationalize, since they don't say what this debt is, but the first part they do identify that you have to be you...

 

If you are not the debtor, they have still disclosed to a third party. They have further ensured disclosure to any third party listener by repeated calls that would lead any third party to have to listen to the whole message to determine the source of the apparently harassing calls. They have disclosed who the debtor is (XXX), and that they allege the debtor owes a debt, exactly what FDCPA would prohibit.

It is their responsibility not to disclose to third parties, not the listener's responsibility to turn off their ears to keep the caller compliant with legal obligations imposed on the caller. Otherwise they could call anyone they wanted, and disclose anything they wanted, and it would be impossible to violate the FDCPA third party disclosure prohibition, since it would all be the listener's fault. Sort of like the already rejected claim that all inquiries have permissible purpose, since those that don't are outside of FCRA, so they are not obtaining "credit reports" as defined by FCRA, therefore they must be legal. (That was TU's argument that they could market consumer data from their credit files any way they wanted as long as they weren't selling "credit reports". FTC and a judge didn't agree.)

If you are the debtor, they have misrepresented that the debtor has somehow "confirmed" he owes a debt he may actually want to dispute. They could just as legitimately publish a list of debtors in the paper, with a disclaimer at the beginning that the reader "confirms" they are a debtor in the list by reading the list, or else they agree not to read the list, to comply with FDCPA.

They have to assume that the listener will listen to ALL of the message left, regardless of any disclaimers or conditions, since they left it. They cannot even put restrictions on any use of that message, as for example, when they leave an abusive message on an answering machine, there is no problem introducing the "recording" into court. They chose to leave it, they knew it would be recorded, thereby giving their permission to record, and they took no precautions against actual delivery to the wrong party of the disclosure that "XXX" owes a debt.

They could safely say simply that if you are "XXX", please call "XXX-XXX-XXXX", and that is similar to what most automated CA messages say.

 

I would call and find out what it is about, however, I would not provide anything to them other than my name and phone number, since that is who they claim they are contacting. They may be collecting on an account they claim you owe, or they may have misidentified you as someone else. They should provide you either enough information for you to determine whether you are dealing with an account that might be yours, or at least their address to send a dispute/validation request to.

If they play games and are verbally abusive while not disclosing their address to allow you to make use of your FDCPA dispute rights, you have enough reasons to file an FDCPA harassment complaint with your state AG and FTC.

In general, especially if you are either misidentified, or there is a billing or posting error on an account that is yours, it is to your advantage to force the issue before they damage you, using your FDCPA dispute and validation rights.

Be aware that they may read you your SSN and items off your credit report to "prove" you are the one that owes the debt. This proves nothing other that they pulled your reports and are trying to collect some debt from you, which may or may not be yours, and you need to dispute and request validation in writing, CRRR.

 

Following your logic they could post the message on a billboard as long as they included a disclaimer. Doesn't work that way.

 

I hope you call them back and tape record that message - it is the most blatant FDCPA violation I can think of - that they are making a precondition of contacting them (ostensibly to inquire as to what the matter is or to dispute it) an ipso facto acknowledgement of the debt. Can you spell "OVERSHADOWING"???? Maybe you should put a message on your incoming message box that says " Any debt collector who listens to this message confirms that they have violated Fair Debt Collection Practices Act and appoints Maxed as Attorney in Fact to enter Judgement in the amount of $1,000 against said debt collector and the Collection Agency you work for. Leave your name and address for service of the Income Execution against your salary and the Garnishment Order against your employer."

 

Call Script (Customize for yourself)

Meanwhile, you are getting a log of XYZ repeatedly saying that they can not give out their company's contact information without your name and account number.

 

Gib, as I said, that is THEIR logic. And I also said that THEIR logic created more problems for them.
I just dealt with a company who is SPECIFICALLY ENJOINED from violating the FDCPA, including third party communications, and it didn't prevent them from passing a note via a neighbor to "Call Mr. XYZ".
Well, he (and the president, ceo, and compliance officer) received a call, allright, to their fax machine.

 

LOLOL

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OMG - I just got that call tonight! I will transcribe it word for word here. Mine said it was from Progressive Financial Servcies. (I have a thread here asking for info about them, because I had gottena couple calls from them recently, from a live person who just left a message, but I hadn't heard heard from them before - this was new, and I was looking for info on them. I guess I know now! And I wonder if the original poster of theis thread has student loans not paid like me - that's why I got this call. (I think so anyway, from the info in that other thread about them. This message does not say that though) The whole thing is an automated message, and there is a part where there is a different, robotic sounding automated message where they insert my name.

"This is an important message for (Suzie46). This is not a sales call. If you are not the person we are trying to reach, please hang up now. If you are this person, please remain on the line to retrieve this important message. There will now be a 3 second pause. (then there is a 3 sec., and then it continues) By staying on the line you acknowledge you are the person that we are attempting to reach. My name is Mr. Davies. I'm a debt collector with Progressive Financial Services. This is an attempt to collect a debt. Any information obtained will be used for that purpose. Call me at 1-800-xxx-xxxx regarding an important business matter. Once again, that number is 1-800-xxx-xxxx."

All of this was left on a message, and yes, i still have it. I live alone and I was out when the call came in, so I didn't "stay on the line" and acknowledge it is me - no one stayed on the line! The message just kept going.

 

So if you are not the debtor, maybe you just moved and ended up with a new phone number that used to be the debtor's, and you get a bunch of these robot calls, you are supposed to not listen?

In that case they will keep coming since you will only hear their name and number AFTER they have disclosed the debtor's name and that they owe a debt!

In effect, despite their verbal boilerplate, any such robot calls to the wrong party, particularly if repeated, are guaranteed to disclose to a third party that the debtor owes a debt, unless their robot dialer is smart enough to DETECT that you hung up at the 3 second pause, as they requested, and use that hang-up to remove your number from their list, as a sensible person would do if they reached the wrong party.

Even human CA callers have not typically acted that sensible.

 

Ontrack, sounds like you and others are saying just getting this call is a violation, because even IF they called the right number, and IF they reached the right person, there is no way to tell who actually heard the call - a babysitter, a guest visitor, a cleaning lady you hired (yeah, I wish!), but the possibilities are endless on who could have heard that message, and I think you are all saying that violates because of others hearing about your personally business - correct?

If so, is it enough to use to wipe out a very large debt? It may be a violation (if I understand correctly) but then what? How can that work for me?

 

Not quite.

My view is that getting this call is an FDCPA violation for implying that the consumer is confirming owing the debt simply by listening to the message, overshadowing their right to dispute the debt. As such, it deserves suppression by the appropriate regulatory authorities before is becomes another common practice.

It would be interesting to know what their response would be if as a result of this call, the consumer were to call back, and request their address for purposes of sending a dispute/request for validation. That would confirm whether the CA were treating this as an actual "confirmation" that the debt was owed, and actually claiming the consumer had somehow "waived" dispute rights guaranteed by law.

It would be a third party disclosure violation if in fact it was heard by a third party. I think what I and other people here find interesting is that this CA, and apparently at least one other, seem to believe that their boilerplate message somehow protects them from violations of the FDCPA prohibition against third party disclosure. I suspect that some attorney, perhaps for a collection industry newsletter, might have given this as an example of how to use automated calling while appearing to "comply" with FDCPA.

Regarding your particular circumstances, if for example you are dealing with a government guaranteed student loan, your best solution may still be to "rehab" the loan, thru whatever channels you have to do to accomplish that, since that can result in clearing the negative reporting. That is an independent issue from whatever games any particular CA is playing.

Note that I am NOT an attorney. The above is just my opinion.

 

Since we don't seem to know who this is or their address, you might have to call them back. If you do, have the recorder running from dial tone to hangup. The chances of you completing a 60 second phone call without them violating the law seem pretty slim given their behavior to date.
Mic.