Is this a violation?

[Linda7]

(Names changed) - A call comes in to an answering machine and says - "If this is Joan Vickers, press #1. If this is not Joan Vickers, press #2" - and then it repeats.

Upon googling the number, it appears to be Nationwide Recovery.

Joan said that she did have some medical debts and a credit card default, so I am guessing it may be one of those.

But, aren't they supposed to say who they are and that they are debt collectors, etc.?

[willingtocope]

Not on the answering machine. If they talk with Joan in person, then yes they need to identify themselves.

[BigJT]

Originally Posted by willingtocope

Not on the answering machine. If they talk with Joan in person, then yes they need to identify themselves.

Shoot, I didn't know that. I've been recording voicemails thinking I had violations for sure.

[willingtocope]

If they do identify themselves in the voice mail as a debt collector and go into the details of the debt...the maybe. Depends on whether other people have access to the voice mail...and, if you can convince a judge that's "third party disclosure".

[usctrojanalum]

I say it can be yes or no. The law is not absolutely clear on this, and it is a gray area. Do I think if Joan sued the company would she get a settlement check instead of the company fighting it through litigation, yes.

Do I think if for some unforeseen reason the debt collection company wanted to fight tooth and nail they would win after a judge has decided the case? I think it will depend on the judge more than what the actual law is.

[BV80]

I agree with USC. It's a Catch 22 for debt collectors. If they don't identify themselves, it's a possible violation. If they do identify themselves, they take a chance that a 3rd party heard the call, and that's a violation.

[BigJT]

Interesting. I guess I'll keep recording the voicemails, just in case.

[BV80]

Here's another thought. It's possible to find out if a phone number is a landline or a cell. If they know they're calling a cell number, chances are the voice mail is private. It's not going to be heard by a 3rd party. There's no reason for them not to identify themselves.

If they got your number from the OC, that's another reason they should identify themselves.

If they're leaving a pre-recorded message on your cell phone, in order to avoid a violation of the Telephone Consumer Protection Act, you would have to have provided the phone number to either them or the OC. If they claim to have gotten the number from the OC, again...there's no reason for them not to identify themselves, because they have reason to believe it's your number.

[BigJT]

Yeah, that's a compelling argument BV80. At the very least, I'm sure the JDB wouldn't want to have to defend against that in court.

[Coltfan1972]

Originally Posted by BV80

It's a Catch 22 for debt collectors.

Exactly, you sue them either way. They don't disclose you sue for no proper disclosure. They do disclose you sue for disclosing and a third party heard.

It's like my favorite interrogatory to send.

Please state the name of the FDCPA compliance officer for your CA/JDB/Whatever.

If they object they they look horrible, in an FDCPA case, for objecting.

If they answer with a name, you slam them and argue that even though they have an FDCPA compliance officer they still plowed right through your FDCPA rights and the maximum judgement should be awarded.

If they answer with no name, you slam them and argue of course they violated the FDCPA. They don't even care enough to have an FDCPA compliance officer so the maximum judgement should be awarded to, "send a message," and don't make it profitable to just pay judgments instead of hiring an FDCPA compliance officer.

Anytime you can paint them in a corner, do it. They will and do jump at the opportunity to do it to a consumer. They have no trouble posing damned if you do and damned if you don't questions to consumers. Throw it right back at them with a smile.

[Linda7]

This was on a home phone land line.

Could she send an ITS letter telling them they are in violation of the FDCPA for their phone call of such and such a date, for calling the consumer and not stating they were debt collectors nor stating who they were and then tell them they can either send a check for $1,000 now or you'll sue them?

And what benefit would it be for them to just go ahead and pay the $1,000?

Would the fear of what little court costs it would be - be enough for them to just pay up front?

And are they actually liable during that one phone call for more than one violation?

Thanks for all the replies!

[BigJT]

Coltsfan, you are a shark! I love it!

[BV80]

Originally Posted by Linda7

This was on a home phone land line.

Could she send an ITS letter telling them they are in violation of the FDCPA for their phone call of such and such a date, for calling the consumer and not stating they were debt collectors nor stating who they were and then tell them they can either send a check for $1,000 now or you'll sue them?

And what benefit would it be for them to just go ahead and pay the $1,000?

Would the fear of what little court costs it would be - be enough for them to just pay up front?

And are they actually liable during that one phone call for more than one violation?

Thanks for all the replies!

It might depend on the Joan's message given to callers when the answering machine answers the call. The collector's defense would be that they didn't know for sure they had the right person. Does she identify herself in any way?

[Linda7]

Originally Posted by BV80

It might depend on the Joan's message given to callers when the answering machine answers the call. The collector's defense would be that they didn't know for sure they had the right person. Does she identify herself in any way?

No. The call is left on an answering machine.

They show up as a toll free number and the message recorded was just another recording saying, "If this is Joan Vickers, please press #1 now. If this is not Joan Vickers, press #2 now."

The thing to me is that it is a debt collector not identifying themselves and they seem to be sneaky in trying to find out if Joan Vickers was the one on the end of the line.

[Coltfan1972]

Originally Posted by BigJT

Coltsfan, you are a shark! I love it!

We're ASSUMED by the courts to be the least sophisicated consumer.

[Coltfan1972]

It's a violation, but like posted a one that goes both ways. Would she really sue? That is the real question. Has she ever sued before?

I think the collector would call her bluff. If she has sued before they will probably write a check in record time.

I think she has zero shot at a settlement, unless she is a known litigant, without a very tight federal lawsuit unfiled copy attached to any demand. I'm working on a federal suit right now and it takes many hours to get it just right. The collectors know that. I don't think a you better pay me or else letter would work for this violation. That's just my two cents. It's a violation that might be able to get out of if sued, but at what cost and there is no way your friend would get hit with atty fees for a frivilous suit, even if she lost. They also know that.

[usctrojanalum]

Originally Posted by Linda7

Could she send an ITS letter telling them they are in violation of the FDCPA for their phone call of such and such a date, for calling the consumer and not stating they were debt collectors nor stating who they were and then tell them they can either send a check for $1,000 now or you'll sue them?

honestly, the approach i've seen lately have good results is drafting the actual lawsuit itself, sending it to the company, then stating if we do not come to an agreement within 14 days the lawsuit will be filed on such and such a date.

Companies take this more seriously than an ITS imo. Only thing is, your friend really needs to file it on the date he says he will or it could be construed as borderline extortion.

[Linda7]

Sounding good!

Can somebody point out the violation or violations that could be used?

Would it be one violation of them not disclosing who they are as in their company name and another one for not saying they are debt collectors, etc. or how does that work?

Also, this is in Georgia and I think that if they violate the FDCPA, they also violate the Georgia Fair Business Practices Act 1st Nationwide Collection Agency, Inc. v. Werner, 288 Ga. App. 457, 654 S.E.2d 428 (2007). This violation allows for treble damages.

Also, could the fact that they made contact by leaving the message on the answering machine be the start of the 5 days they should have sent something in the mail? Or would she have had to answer to confirm it was her? BTW, she has received nothing through the mail from this company.

I found this link in regard to the treble damages and it has some information for other states as well - Little FTC Acts and Statutory Treble Damages-Traps for the Unwary | Business Torts Litigation | ABA Section of Litigation

[Coltfan1972]

Originally Posted by usctrojanalum

Only thing is, your friend really needs to file it on the date he says he will or it could be construed as borderline extortion.

Exactly, I almost wish there was some fine the consumer had to pay if they send an ITS and don't follow up. Makes all the consumers that actually follow through look like bluffers full of b.s., or in words like collection agencies and junk debt buyers.

[Linda7]

Bumping up for answers to post #18 and thanks!