In this post the discussion got to the disclaimers required in a voice mail message. http://consumers.creditnet.com/Disc...from-collection-agency-no-clue-why-64411.html I knew the reasons for the disclaimers... Just couldn't think of them at the time... Stumbled on them on the FTC web site when I was searching for something else... (1) A debt collector leaving a voice mail message must identify the complete name of their employer. EVEN if their employer's name reveals the existence of a debt. (2) A debt collector leaving a voice mail message must provide the mini-miranda message in the voice mail. Any collector who doesn't follow those are violating the FDCPA... (And apparently, they haven't stayed current in reading their ACA newsletters...) August 2006 issue of Collector Magazine went to press days before the FTC response; but reviewed FOTI v. NCO. which still conveyed the same information that the FTC response did. FTC to Rozanne M. Anderson, Esq @ ACA. - July 28, 2006 http://www.ftc.gov/os/statutes/fdcpa/letters/060728staffresponsesofadvisopinion_public.pdf Given the cases cited, the disclaimer of "This is for XXX" rectify the potential 805(b) violation which those cases require. In the commentary, (the unofficial '88' commentary, which except for the sections made obsolete by caselaw - like Heintz v. Jenkins), this is consistent with the 804 identification requirements, since even under the commentary (and the 6 cases cited codify this) require the disclosure of the true callers company name, if they are specifically asked to provide it; even though it could cause an 805(b) issues. So the only legal way for them to leave a message, per the 6 cases cited in the FTC letter to ACA is to follow something similar to the following boilerplate (paraphrased from the message in that post.) "Hello, this message is for ____________, if this is not ____________, do not listen to this message. (pause). By listening to this message, you are agreeing that you are ____________. (pause). This is DSDS Collections, please return our call at 1-888-8XX-XXXX. This is an attempt to collect a debt, any information obtained will be used for that purpose." (And if you prepare any suits based on the CA's not following the two requirements, you can always tell the CA to go ask ACA... - now PAY UP.) Really catch them off-guard and tell them to check out the August 2006 issue of Collector Magazine. you can get the text of the article from the ACA web site to read it to them like they are a two-year old, if they still don't get it. It's also touched on in the October 2006 issue of Collector Magazine in two paragraphs of a Collector Magazine article on Interactive Caller Technologies; and again in length in an article on when technology and the law collide. That article goes on to detail not only the FDCPA issues with collectors calling cell phones, but additional TCPA violations for collectors calling cell phones!!!
Ok, for the litigation minded, here's the caselist, generously provided by the FTC, ACA, and the CA's who have written about these changes in the case law. Belin v. Litton Loan Servicing Stinson v. Asset Acceptance, L.L.C. Foti v. NCO Fin. Sys., Inc., Hosseinzadeh v. M.R.S. Assocs., Inc. Joseph v. J.J. MacIntyre Cos., L.L.C.
In effect, FTC indirectly provided an advisory opinion by stating that there was consistent guidance by the courts (which they summarized, and effectively agreed with), so they had no reason to provide a specific advisory opinion in response to ACA. Interesting way to respond, as it avoids any potential issue with a CA claiming that an FTC advisory opinion provided the guidance they relied upon to act contrary to what had already been established by case law. Perhaps they didn't want their opinion to be used out of context in the manner of the Chaudhry opinion.
You'll still find many agencies unwilling to put themselves at such risk. We have 3 attorneys firm that represent us for numerous different things, all of them agree that the chance of us getting sued for 3rd party violation far out weigh the possiblity of getting sued for the recent decisions in case law, out of this jurisdiction. (their quote not mine) Many agencies agree with this and so do their attorneys.
I can understand their position, since although not disclosing your name, and that your call is from a debt collector, on an answering machine, may be a technical violation based on case law, the damage to the consumer is limited as that non-disclosure may confer no deceptive advantage that acts to the detriment to the consumer, whereas disclosure to a third party, and the implied threat of further such disclosures, may fall squarely in the abusive collection category, and in a form where the consumer might be able to prove it happened, since the recording would prove both what was disclosed, and by whom.
ontrack, collectman, et. al. From the great minds at ACA... "Collectorâ??s Voice Mail Message Violates FDCPA Voice mail messages left for consumers that instruct non-intended listeners to hang up do not absolve debt collectors from third-party liability under the FDCPA." I was searching the ACA site for the article that I cited here in this thread, and that news thread popped up.
