18 Oct Can a Debt Collector Leave a Dunning Message on my Answering Machine?
As you may know, bill collectors are subject to more regulation than actual creditors. In other words, an employee of MasterCard or Visa can call you and say certain things legally, whereas an outside bill collection agency hired by the credit card issuing bank would be in violation of the law for saying or doing the same things.
The Fair Debt Collection Practices Act offers a number of protections to consumers from improper acts of debt collectors. Two of the most important FDCPA prohibitions include:
- a requirement that a debt collector identify himself and disclose to the debtor that the purpose of the communication is to collect a debt; and
- a prohibition against communicating about the debt with third parties
The 11th Circuit Court of Appeals recently issued a ruling which could have significant implications in terms of the business practices used by collection agencies.
The case of Edwards v. Niagara Credit Solutions involved a situation in which a collection agency (Niagara) left a debtor (Ms. Edwards) a phone message that said simply “this is an important message for Brenda Edwards. Please return this message at 1-800-xxx-xxxx between the hours of 8 a.m. and 9 p.m. eastern standard time.”
Ms. Edwards sued Niagara, arguing that this “bare bones” message failed to properly identify the caller as a debt collector and it failed to state the purpose of the call.
Niagara argued that it could not leave the identifying information because that would constitute a violation of the third party communication prohibition (Niagara had no way of insuring that a third party would not hear the phone message).
The 11th Circuit judges tossed out Niagara’s argument, noting that Niagara cannot violate one section of the FDCPA in order to fulfill another section.
What does this mean to you? While the 11th Circuit limited its ruling to the legal issue before it, the practical import of the Edwards case would appear to make a dunning call left on an answering machine a per se violation of the FDCPA.
So, as I note in my Atlanta bankruptcy blog article about the Edwards case, do not hesitate to contact a lawyer familiar with the FDCPA if a collection agency leaves you a message on your answering machine.
by Jonathan Ginsberg, Atlanta bankruptcy lawyer
Jonathan Ginsberg, Esq.
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