Phone violation?

[Linda7]

Would the following be a phone violation (left on an answering machine)?

"Hello, this is Ray Black. I've left several messages and I need to hear from Stacy Morgan today. My phone number is XXXXXXXXXX. Again, this is Ray Black and I have an important message and I need to hear from you today. The phone number is XXXXXXXXX. Thank you."

[BigJT]

If those are real names, I'd advise editing your post and changing them.

It could be a violation, if you requested validation and they haven't provided it.

It could also be a violation of the telephone consumer protection act if it was a recorded message and they used an autodialer. I know very little about that part of the law though, so check with an attorney.

[Linda7]

Not real names.

And the consumer has never heard of this person or their collection agency that showed up when they googled the number. So, I'm guessing it is a new collection agency calling in regard to some alleged debt.

It wasn't a real person either, just a recorded message and then they put in the name of the consumer and then continue with the recorded message.

Also, they lied within the message by saying they had left several messages as this message was the first received.

[BV80]

Originally Posted by Linda7

Not real names.

And the consumer has never heard of this person or their collection agency that showed up when they googled the number. So, I'm guessing it is a new collection agency calling in regard to some alleged debt.

It wasn't a real person either, just a recorded message and then they put in the name of the consumer and then continue with the recorded message.

Also, they lied within the message by saying they had left several messages as this message was the first received.

This is sort of a Catch 22 for CAs and JDBs. The FDCPA states that in the initial communication, even if that communication is oral, they have to identify themselves and state that they're attempting to collect a debt. However, that cannot state that information to 3rd parties.

As a result, if they leave a message on an answering machine and state they are a debt collector, they're taking the chance that a 3rd party might hear it. If they don't leave the message, they can be in violation for not disclosing they're attempting to collect a debt.

It might be a good idea to see how or if courts in the state have ruled on the subject.

[bad98roadster]

Originally Posted by BV80

This is sort of a Catch 22 for CAs and JDBs. The FDCPA states that in the initial communication, even if that communication is oral, they have to identify themselves and state that they're attempting to collect a debt. However, that cannot state that information to 3rd parties.

As a result, if they leave a message on an answering machine and state they are a debt collector, they're taking the chance that a 3rd party might hear it. If they don't leave the message, they can be in violation for not disclosing they're attempting to collect a debt.

It might be a good idea to see how or if courts in the state have ruled on the subject.

+1

There are rulings on both sides of the issue.

Aggressive; File a claim and let the Judge decide.

Less aggressive: Wait to see if you get the 5 day notice post marked within 5 days of that message. Wait to see if they violate further.

[Linda7]

Originally Posted by bad98roadster

+1

There are rulings on both sides of the issue.

Aggressive; File a claim and let the Judge decide.

Less aggressive: Wait to see if you get the 5 day notice post marked within 5 days of that message. Wait to see if they violate further.

So, are you saying even though I did not answer the call, but they left a message that they are supposed to send me something in writing within 5 days of their recorded message?

[bad98roadster]

If it were my issue, I'd call them back thus establishing, beyond doubt, the start of the 5 day period.

[Linda7]

One question though - if I call them back, how can I prove the date?

With them calling, it shows on my caller ID, but not when I make the call.

[bad98roadster]

If you call from your cell phone, the call will be detailed on your itemized bill. It should also be detailed on your handset. You can record the call and/or memorialize the call details along with time and date and create an notarized affidavit shortly thereafter.

If you call from a landline, chances are, the call will be long distance or an 800 number which should itemize on your phone bill.

[debtorshusband]

As BV80 described, this is a Catch 22 situation for the CA's.

As bad98roadster said, it could go either way in court.

My approach is the less litigious, more conservative one. I wouldn't spend a lot of time at this point trying to figure out if this is a violation. I would:

1. Not return such phone calls. Never.
2. Start a log to record all interactions with this company; letters phone calls, etc. You may not be able to identify them now, but eventually you may figure out who they are.
3. Record this phone message as possible future evidence.

Because while it's not clear (to me) that they have violated the FDCPA with this message, or that leaving it obligates them to send a letter within 5 days, if they eventually commit a clear violation I would pile on such charges, if only to increase the effort they will have to expend to deal with me.

Good luck,
DH

PS Just realized bad98roadster already basically recommended my 2 and 3. Kudos to him/her.

[antiquedave]

it is a foti violation that you should prevail on you need nothing more than what you have already on tape

[antiquedave]

FDCPA 1692e (11) Meaningful Disclosure & 1692g FOTI V NCO FINANCIAL SYSTEMS

--------------------------------------------------------------------------------

FDCPA 1692e (11) Meaningful Disclosure & 1692g FOTI V NCO FINANCIAL SYSTEMS

A Simple Foti Violation could mean a 1,000.00 payout

What is a FOTI Violation you ask? Foti sued NCO Financial Systems over a message left on Paul Foti’s answering machine that asked him to return their phone call in regards to a very important business matter. The message did not identify NCO Financial Systems as a debt collector attempting to collect a debt.

RAMERIZ V APEX FINANCIAL MANAGEMENT – immediate attention

The call;

“Good day, we are calling from NCO Financial Systems regarding a personal business matter that requires your immediate attention. Please call back 1-866-701-1275 once again please call back , tool free , 1-866-701-1275 this is not a solicitation.”


It could not be determined from the name NCO Financial Systems that they were a debt collector.
Section 806(6) says that placing a telephone call to a consumer without meaningful disclosure of the caller’s identity constitutes harassment or abuse
DROSSIN V NATIONAL ACTION FINANCIAL- must disclose message is from a debt collector.

GRYZBOWSKI V IC SYSTEM INC.

NCO argued that the message was not a communication in an attempt to collect a debt because they did not mention the debt but if you look at HOSSEINZADEH V M.R.S. ASSOC. you will see that the court found that was not true.

Also
JOSEPH V J.J. MACINTYRE COS LLC

WRIGHT V CREDIT BUREAU OF GEORGIA

SPARKS V PHILLIP COHEN ASSOCIATES LTD – failure to identify is a violation as a matter of law. 1692D (6)

MARK V JC CHRISTENSON & ASSOCIATES- call is in connection with collection of a debt

COSTA V NATIONAL ACTION FINANCIAL SERVICES- failed to state message was from a debt collector.

THOMAS V COMMERCIAL ADJUSTMENT- call is in connection with collection of any debt.

INMAN V NCO FINANCIAL SERVICES, pre-recorded call is a communication


Correspondence must be a communication within the meaning of the act. A pre-recorded message is a communication as defined and ruled upon by the Courts.

ROMEA V HEILBERGER & ASSOCIATES

Communication is interpreted very broadly under FDCPA and covers conveying information directly or indirectly through any medium to any person.

COLL V TOLL

PIPILIES V CREDIT BUREAU

CAVALARO V LAW OFFICE OF SHAPIRO & KREISMAN

Disclosure is required in all communications.

So it’s important to save all of your letters that you receive and to record and keep all of your phone messages. If possible and this is something that I do, take a picture of the display on your phone showing the caller ID information.

IF there is no disclosure that the communication is from a debt collector and it is an attempt to collect a debt you have an actionable item or a cross or counter claim which can give you leverage in a lawsuit.

STINSON V ASSET ACCEPTANCE LLC

CHLANDA V WYMARD

LEWIS V ACB BUSINESS SERVICES

MASCIARELLI V RICHARD J. BOURDREAU & ASSOCIATES

HARRINGTON V CACV OF COLORADO

PICHT V HAWKS

ACOSTA V CAMPBELL

BLAIR V SHERMAN ACQUISITION

FDCPA is liberally construed in favor of the consumer.

The message implied an urgency to return the call, without meaningful disclosure

Look at;
WEST V NATIONWIDE CREDIT violation of 1692 c(b)
They did not mention the debt itself when calling a neighbor but the court rejected Nationwide’s narrow interpretation of communication.

HOBSON’S CHOICE OR CATCH 22

NCO argues that they are forced to make a decision as to which rule to break when calling and leaving messages, if they leave a message that identifies them as a debt collector then they run the risk of accidentally disclosing to a 3rd party and violate 1692c(b) The other option is to not leave a message (problem solved)

CLOMAN V JACKSON

Basically saying that just because the method the collection agency picks is the most economical and easy for them does not give them the right to use any means to collect a debt. The Collection Agency still has other means other than leaving a pre-recorded message to contact a debtor, they can use live callers, they can send letters, so what this means is that the collection agency bean counters say go ahead and continue to call and risk violations because it is cost effective for them in spite of the payouts for the occasional lawsuit when a debtor hold them accountable for violating the law.

EDWARDS V NIAGRA CREDIT SOLUTIONS INC

Collection Agency can’t have an FDCPA exception to use the method that they deem is most efficient for them.

So bottom line is that the CA has a liability and it is one that many people can use to help protect themselves because the CA’s just keep calling and leaving messages.

[Linda7]

Thank you all for the replies!

AntiqueDave, thank you so much for the information!

This call was made to a Georgia resident. Could they use the cases you mention in your post above or would they need Georgia specific case law to back up a case against the collector?

Also, on their caller ID - it doesn't show up as a company, only a phone number. Upon googling the number, it appears to be Holloway Credit Bureau Companies, LLC (a collection company) out of Alabama.

[Robert_Nashville]

If I got a robocall like that I'd simply block the number and get on with life...if they really want to collect a debt from you they'll write and then you can start the DV process...if all they are willing to do to "collect" is robocall you then they aren't going to accomplish anything except wasting their time.

[BV80]

Originally Posted by Robert_Nashville

If I got a robocall like that I'd simply block the number and get on with life...if they really want to collect a debt from you they'll write and then you can start the DV process...if all they are willing to do to "collect" is robocall you then they aren't going to accomplish anything except wasting their time.

The calls could be used as a counterclaim in a JDB lawsuit.

[BV80]

Originally Posted by Linda7

Thank you all for the replies!

AntiqueDave, thank you so much for the information!

This call was made to a Georgia resident. Could they use the cases you mention in your post above or would they need Georgia specific case law to back up a case against the collector?

Also, on their caller ID - it doesn't show up as a company, only a phone number. Upon googling the number, it appears to be Holloway Credit Bureau Companies, LLC (a collection company) out of Alabama.

Case law from other states or circuit courts of appeal are persuasive, but not binding precedent. It's best to have case law that's binding in the court in which you've filed suit.

From what I understand, if you sue in a state court, you need case law from that state's courts. If you sue in a district (federal) court, which is where an FDCPA claim would be heard, then you can use case law from that court and from the appropriate Circuit Court of Appeals. Supreme Court case law applies to everything.

[antiquedave]

Originally Posted by Linda7

Thank you all for the replies!

AntiqueDave, thank you so much for the information!

This call was made to a Georgia resident. Could they use the cases you mention in your post above or would they need Georgia specific case law to back up a case against the collector?

Also, on their caller ID - it doesn't show up as a company, only a phone number. Upon googling the number, it appears to be Holloway Credit Bureau Companies, LLC (a collection company) out of Alabama.

its a simple foti violation, but none the less a violation, I have prevailed once on a call very similar to the one you describe, your friend ought to contact consumer attornies in Georgia and let them know they have a documented foti violation and let them do all the heavy lifting.

[Meg61]

You haven't even explained why you think this is a collection call.

"Hello, this is Ray Black. I've left several messages and I need to hear from Stacy Morgan today. My phone number is XXXXXXXXXX. Again, this is Ray Black and I have an important message and I need to hear from you today. The phone number is XXXXXXXXX. Thank you."

They could be trying to sell you windows, right?

[BV80]

Originally Posted by Meg61

You haven't even explained why you think this is a collection call.

"Hello, this is Ray Black. I've left several messages and I need to hear from Stacy Morgan today. My phone number is XXXXXXXXXX. Again, this is Ray Black and I have an important message and I need to hear from you today. The phone number is XXXXXXXXX. Thank you."

They could be trying to sell you windows, right?

From post #3

And the consumer has never heard of this person or their collection agency that showed up when they googled the number.

[antiquedave]

Originally Posted by Meg61

You haven't even explained why you think this is a collection call.

"Hello, this is Ray Black. I've left several messages and I need to hear from Stacy Morgan today. My phone number is XXXXXXXXXX. Again, this is Ray Black and I have an important message and I need to hear from you today. The phone number is XXXXXXXXX. Thank you."

They could be trying to sell you windows, right?

So Meg.........

What do you do for a living? and do you have a collection question we can help with?