No Demand for Payment Required Under FDCPA
For many years our office has been fighting debt collectors and protecting members of the public by using the Fair Debt Collection Practices Act (“FDCPA”). Debt collector’s frequently one argument in response. Fortunately our office usually prevails in such matters but it is always good to get additional support from the courts. One argument that debt collectors make is that they were not actually trying to collect a debt when bothering our clients, therefore, whatever unlawful conduct they engaged in was not actually a violation of the law. They may send our clients bills in the mail or put notes on the door to their home or call our clients and leave voice messages requesting our clients call them back. It is unlawful for debt collectors to, in certain circumstances, contact people known to be represented by an attorney while trying to collect a debt. Debt collectors try to get around that law by claiming that they were not trying to collect a debt, they were merely trying to contact our clients.
A fantastic case just came out from the 11th Circuit on that point, Hart v. Credit Control, LLC. In Hart the United States Court of Appeals for the Eleventh Circuit considered whether or not a phone message requesting a call back from a debt collector could be a violation of the FDCPA. The entirety of the phone message left on the debtor’s voice mail was as follows: “This is Credit Control calling with a message. This call is from a debt collector. Please call us at 866–784–1160. Thank you.”
The 11th Circuit ultimately decided that it was a violation of the law and had four important holdings.
1. No explicit demand for payment is required for conduct to be a FDCPA violation.
2. That “a voicemail can, and will, be considered a communication under the FDCPA if the voicemail reveals that the call was from a debt collection company and provides instructions and information to return the call.”
3. That a debt collector who contacts a member of the public must either identify their own name or that of the debt collection company.
4. That voice mail messages count as a “first communication” as far as the FDCPA is concerned and that the disclosures required by the initial communication must be included.
All around this is a great ruling by the 11th Circuit and should help in the fight to protect members of the public from harassment by debt collectors.
If you would like to read more about the FDCPA and consumers fighting back against debt collectors, you can find other stories on our blog: http://www.fight13.com/Practice-Areas/Debt-Collection-Harassment-and-Abuse
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This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any legal issues related to the matters discussed in this article as the applicability of state, local and federal laws may vary.