Things got completely twisted for the debt collection industry with the decision in Foti v. NCO Financial Systems, Inc in the year 2006. The Court in Foti concluded that each voicemail intended for a debtor must include the mini-miranda, which is a disclosure that the communication is from a debt collector. 15 U.S.C §1692e(11)
The Court further included that every voice mail must also have a meaningful disclosure of the debt collector’ identity. 15 U.S.C. §1692d(6)
Since then, the debt industry has spent billions of dollars for litigation and settlement of claims based on this oddity in the FDCPA. Consumers, however, are still filing lawsuits stating that Foti-compliant voicemail messages are giving rise to illegitimate third party disclosure, where the messages are being heard either by a family member or by a roommate.
This article goes on detailing the strategies, which debt collectors may undertake only to trim down the risks of lawsuits or set up certain defenses under the FDCPA. In order to avoid any unlawful practices by the debt collectors while sending voicemail messages, the debtors, however, should also know these regulations in detail.
1. These days, most courts reckon voicemails as a medium of communication under the FDCPA. So while leaving a voicemail, a debt collector should follow the ‘Mini-Miranda’ and disclose the identity, which includes name, employer and phone number.
2. A debt collector should always listen carefully and document the outgoing message on the consumer’ voicemail. A debt collector can only leave a voicemail if the outgoing message states: You have reached. Please leave a message.
3. Debt collection agencies should put into practice a policy to evade third party disclosures. They should leave a Foti type message that finds out the debtor itself, and automatically pauses to cease a non-debtor from listening to the message before the ‘mini-miranda’ and meaningful disclosure of the debt collector’s identity are provided.
4. A debtor cannot allege a debt collector of third party disclosure by filing an FDCPA lawsuit if the debtor himself authorized the third party to listen to the message or if the third party was an unauthorized eavesdropper.
5. According to the FDCPA’ skip-tracing provision, a debt collector is authorized to communicate with a third party entity to determine the debtor’ residence, telephone number or the debtor’ place of employment. However, while ascertaining this, a debt collector can never disclose that the consumer owes any debt. This may be an effective, but limited tool for the debt collectors to make use. Debt collectors should note that the FDCPA allows only a single call to a third party for skiptracing purposes.
However, uncertainty will prevail to debt collector’ voicemails until Congress comes forward with an amendment to the FDCPA clarifying the issues, or unless the Supreme Court deals with the issue. So the debt collectors should remain knowledgeable about the law and initiate strategies to minimize the perils, and debtors should always remain vigilant about the errors on the debt collector’ part.