By: Robert J. Nahoum
Have you recently received strange voicemail messages from debt collectors that start off with all kinds of warnings about not listening to the message? They go something like this:
“This message is for Joe Shmoe, if this is not Joe Shmoe please hang up. This is a private message for Joe Shmoe, you have 5 seconds to hang up if you are not Joe Shmoe. I am now going to wait 5 seconds to allow you to hang up if you are not Joe Shmoe. Ok, Joe Shmoe, this is debt collector, calling from collection agency, this is an attempt to collect a debt.”
This strange message leaves you thinking that the caller really doesn’t want anyone but Joe Shmoe to hear the message. The debt collectors’ caution is with good reason. Federal debt collection laws known as the fair debt collection practices act (FDCPA for short) have put debt collectors in a bind when it comes to leaving voice messages. One provision of the FDCPA called the “mini-miranda” warning requires debt collectors to make meaningful identification of whom they are and why they are calling. At the same time, another provision of the FDCPA prohibits debt collectors from divulging to anyone other than the debtor that they are calling to collect a debt.
In a 2006 court decision called Foti v. NCO Financial Systems, Inc.,the court identified a problem when these two provisions collide with one another in a voicemail message left by a debt collector for a debtor. The Foti court concluded that in every voicemail message left for a debtor, the mini-miranda warning must be read. However, because there is no way for the debt collector to know who would listen to the message, there is potential for an inadvertent third party disclosure violation.
So what are the debt collectors to do? The cautious series of warnings given to Joe Shmoe seem to be the debt collectors’ best solution. However, the question remains, is the warning to Joe Shmoe enough to avoid Foti liability. This question is presently being tested in courts throughout the country.
Since not all Foti messages are created equal, there are some questions a consumer should consider if they have received a voicemail message from a debt collector:
- Did the voice message disclose the debt collectors’ identity – his/her name, employer and phone number and a statement that the purpose of the call was to collect a debt?
- Does the outgoing message disclose the identity of the consumer so the debt collectors are sure they have the right phone number?
- Did the voice message include the warning to Joe Shmoe as illustrated above?
- Did the consumer authorize the debt collector to speak with a third party? (If so, probably no FDCPA violation).
- Was the message limited to determining the debtor’ residence, telephone number or the debtor’ place of employment? (With some exceptions, this is a permitted third party communication and so probably no FDCPA violation).
If you have gotten one of these Foti messages and think it may be improper, give us a call and let us hear the message to make sure it is up to snuff.
About the Author
Robert Nahoum is a Hudson Valley attorney (with offices in Nyack, Rockland County), practicing consumer protection, and general litigation in the Tri-State Area including New York City, Westchester, Rockland, Nassau, Suffolk, Bergen County New Jersey and Fairfield County Connecticut. His practice includes consumer protection, Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA), debtor’s rights, debt defense, mortgage foreclosure, Truth In Lending, Auto Fraud and general civil litigation.
Robert J. Nahoum, Esq.
The Nyack Business Center
99 Main Street, Suite 311
Nyack, NY 10960-3109
Ph: (845) 450-2906
Fax: (888) 450-8640
Knowledge is power and it is my intention to empower my readers to be victors instead of victims when the go out in the marketplace.