Is It Legal For Debt Collectors To Leave A Message?

An interesting question was brought up over at the Consumer Law & Policy blog yesterday. There is a legal gray area when it comes to debt collectors and voice mail or answering machines. The Fair Debt Collection Practices Act was enacted in 1977, when answering machines were not in common use. According to Jeff Sovern, debt collectors reach a legal dilemma when faced with such a device.

If they call repeatedly, hoping someone will answer, they’re probably violating

806, 15 U.S.C.

1692d. Subsection 5 prohibits:

    Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

So, that’s not cool.

What does our intrepid debt collector do next? Well, he could leave a message…. but by doing so he risks violating other sections of the FDCPA.

First there’s:

805(b), 15 U.S.C.

1692c(b) which states:

    a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

So, if the debt collector isn’t sure that no one else is checking the voice mail or listening to the answering machine… you get the idea.

Then there’s

809, 15 U.S.C.

1692g “Validation of Debts” which depends on the “initial communication,” but it’s not clear if a vague answering machine message counts as “initial communication.” Why? Well, because of

803(2), 15 U.S.C.

., which defines communication as:

    (2) The term “communication” means the conveying of information regarding a debt directly or indirectly to any person through any medium.

That would be fine, but the debt collector can’t say he/she was calling about a debt on the answering machine, because he/she wasn’t sure who was listening.

No, this isn’t a chapter of Catch-22, this is the law.

The CL&P Blog suggests that the law be clarified to include procedures for leaving an answering machine message. That might not be such a bad idea. —MEGHANN MARCO

Debt Collectors and Answering Machines [CL&P]
(Photo: theimacguy)

Comments

Edit Your Comment

  1. acambras says:

    I used to have a roommate who had a lot of debt. At least one firm would call and say, “This is a message for ____________. If you are not __________, please hang up now.” Then, after a couple of seconds, the message/number was left.

    The only problem was that the way our voicemail was configured, one had to listen to a message in its entirety to get to the next message or to save a message. The only way you could cut a message short was to erase it. So I ended up having to listen to the messages and then saving them for my roommate.

  2. jeffj-nj says:

    Did this roommate of yours pay rent? I’d be nervous to live with someone who received such phone calls.

  3. swalve says:

    This seems like a hypertechnical reading of the law. I’m pretty sure the intent is for the collectors to not be discussing debts they are trying to collect with your boss, parents, children, strangers, etc. It seems silly to think that someone trying to collect a legitimate debt wouldn’t be able to leave a message on a machine on a phone number the debtor has given as a place to communicate with them.

  4. acambras says:

    @jeffj-nj:
    Fortunately, I never had a problem with the roommate paying rent on time.

    @swalve:
    I did occasionally have callers try to draw me in to a conversation about the debt or if I could give them my roommate’s cell phone # (as if!) Since my roommate was male and I’m female, they often asked if I was his wife. I guess I should have f***ed with them and said something like, “Gawd, if you talk to her, don’t tell her I was here!”

  5. samuraimonkey says:

    Alot of collection agencys have been aware of this for awhile and have changed their messages to combat this, the law firm I used to work at(doing 3rd party collections,lawsuits, ect ect) changed the message we were allowed to leave so this wouldent be an issue.

  6. Wargazm says:

    “Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.”

    Calling with the intent to CONTACT the debtor is not calling to “annoy, abuse, or harass.” So they can keep calling without leaving messages until they get a hold of the person they need to talk to.

    There’s no problem here.

  7. RandomHookup says:

    The new deal seems to be to call any number associated with the address, even if the number was never listed under that person’s name. I’ve gotten several messages for people in different units in my building (though the collectors don’t know I’m the landlord).

  8. rosiepie says:

    A few months ago, I came home to a message on my answering machine that was automated and the message was something like “By answering the phone, you are acknowledging that you are John Doe…” I don’t remember exactly how the rest of the message went, but it left a number for me to call a debt collection service. However, they had the wrong person and number so I called back to tell them and it was no big deal, but i wondered if it was legal for them to leave an automated message that seemed to tell me i was acknowledging the debt simply by picking up the phone. Weird.

  9. Vicky says:

    When my doctor’s office has a message for me they leave their name and number and the name of the person they are looking for and that is all. I understand that debt collectors may have a harder time getting someone to call back than a doctor’s office, but it seems like the same privacy standard holds.

  10. Youthier says:

    I had the weirdest “debt collecter” the other day. It was on my Pier1 account. I just forgot to pay the card and when it was close to 60 days, they called and my husband answered as I was standing right there. When I realized what the call was about, I told him to let the gentleman know that I would go the store to pay the charges in full the next day.

    The guy went on to ask my husband to confirm our address to make sure that we had received our bill. He said, “No, we got a bill. We just didn’t pay it. We forgot.” It was so bizarre. My husband had the most difficult time getting this guy off the phone. Maybe he was shocked to get a response from someone admitting fault and not using excuses.

  11. kingoman says:

    I have a couple of debt collectors calling my house and they have no problem leaving messages– I get 3 or 4 a week. I haven’t been able to convince them that I’m not the guy they’re looking for (“you’re lying to get out of paying!”), so I just ignore them now. But their messages are very clear and if it was my work number, it would be a problem.

  12. belch says:

    I worked for a debt collection company, and we would leave messages all the time. They went something like this “Hi this message is for _____ please call 1-800-____ as soon as possible, thanks” They were very specific that we weren’t to say Discover card or anything different. Who knows if it was legal or not, I assumed it was.

  13. notallcompaniesarebad says:

    @belch: I had this happen to my cell phone (previous user of my number had an outstanding debt, I think — they couldn’t tell me as per the above). It’s somewhat odd to get a message telling you to call a number without giving a reason, but now I can see why they did it.

  14. BStu says:

    @Wargazm: I’d agree with this. If you’re not picking up, I think they have a reasonable right to try back repeatedly. I think there would be a limit. Maybe 3 times in a row and then a break for an hour. If you call every minute until someone picks up, I think it can’t be reasonably suggested that you aren’t trying to annoy, but even dozens of calls spaced out over a day could be reasonable.

  15. bryan6 says:

    I worked at a law firm that did debt collections for a few months. We absolutely left messages. The script went something like, “This message is for Jane Doe, I’m calling from the law offices of Smith, Smith & Johnson about a personal business matter. Please call me back at…”

    FWIW, the debt collectors I worked with were pleasant and professional. No threats, no abuse, nothing like that.

  16. saerra says:

    For the people who have worked at debt collection places: if they’re calling you, and it’s a wrong number, what’s the best way to get them to stop?

    I get messages every few weeks about a guy I have never met/heard of. (I screen all my calls, so…). It’s annoying. The message that starts off with “This is for Blah… if you are not Blah you must hang up now” is complete BS imho… I’m not a lawyer, but I have the impression that for any agreement/contract to be valid, there must be an acceptance by both sides, and you leaving me a msg on my phone does NOT constitute “acceptance”. I could just as easily leave a msg on someone’s phone that says, by listening to this msg you agree to pay me $100 in cash by tomorrow!”

    Anyway – I have not answered or called them back, for fear that as others have said – they won’t believe that I’m not the person they’re looking for… and I have no desire to be drawn into a long discussion with these people.

    I’ve also had my phone number for several YEARS (took it with me when I changed apartments) and live alone. Anyone with 1/2 a brain could do a reverse phone number lookup online and see that I’m not the person they want. :(

  17. gorckat says:

    When I was at MBNA (customer service, not collections):

    -if the vocie mail used our cardholder’s name, we could be specific about what we were calling for (ie, you’ll get that raven’s towel for siging up in 30 days or i waived the late fee and reaged the acct)
    -if no name was used, we could just say who we were calling and a callback number

    Lately, I’ve also been getting some of the “This is a message for Jimbo, if you are not this person, hang up…this is an attempt to collect a debt”

    It just seems to me that someone is gonna get the balls nailed to the wall on those, especially if they leave those messages at a work number and someone’s boss gets the message and they end up shamed or fired.

  18. gorckat says:

    I could just as easily leave a msg on someone’s phone that says, by listening to this msg you agree to pay me $100 in cash by tomorrow!”

    Better still…change one’s voicemail to include: “If you are a debt colelctor, by leaving your contact information on this machine you agree to settle on any and all debts owed by XXX for $1.00″

    Guess they’ll have to stop using machines then :p

  19. Sam Glover says:

    This definitely is a gray area. This is a “hypertechnical” issue in a way, swalve. It is also very important. The FDCPA begins this way:

    “There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.”

    Those unfair collection practices include letting third parties know about the debt. Some of the most worrisome things to a debtor can be one of these “hypertechnical” violations of the FDCPA, such as leaving a message overheard by the “wrong” person.

    There is a reason why the FDCPA is strictly interpreted. Debt may be the biggest source of stress and strife for Americans today. Debt collectors are doing a necessary job, but there are a lot of good reasons why they should be forced to do it carefully.

  20. Miguel Valdespino says:

    At our company, we were getting recorded messages saying to call a number back. They did not state the name of the person it was inteded for. I called the number to inquire and ran into an interesting catch 22. They could not reveal who they were calling (so I could send them to the right person), and they couldn’t take us off the list unless we knew which number that was called. At our company we have several back lines that feed into the main phone queue, so I couldn’t tell them which number they had called. Eventually I had to get the entire list and tell them not to call any of them.

  21. Crazytree says:

    Question: Is this legal?

    Conclusion: Until I see a court ruling to the contrary, this is a perfectly foreseeable, acceptable and unavoidable consequence of being in arrears on your bill payments.

  22. arcticJKL says:

    saerra,

    I dont work for them but I had the problem you have.
    In one case I got their name and number and told them I was going to report them for violating the do not call registry. That caused them to freak and remove me from the call list.

    In the other case I asked to talk to a supervisor and requested the procedure for removing me from the list because it was the wrong number. They were more than happy to help.

  23. Amy Alkon says:

    @RandomHookup:

    Does anyone know if this is legal? I get my mail at a mail receiving store, and I was getting a bunch of calls for other people who get their mail there.

  24. SOhp101 says:

    Yes they can call every day, but just once a day. That usually is not considered harassment. Due to privacy reasons they usually will not identify themselves unless expressly asked by the person answering the phone and in hopes that you’ll turn over the phone to the person they really want to talk to.

    HOWEVER, if you tell them to stop calling and to send you correspondence only via mail and they still do call you, that is harassment and they can be fined (something like $500 per offense and you get to keep the money, just file through small claims and have proof that they called).

  25. mathew says:

    I got a robotic message saying to call a toll-free number about “an important business matter”, and then it read out a reference number for me.

    It was a collection agency, of course. Trying to find some guy who has never even lived here. (It’s a new house and we’re the first owners, and the house that was on the lot before was owned by an old woman.)

    So far I haven’t been able to make out the name they’re asking for, it’s something incomprehensible. They seem willing to believe that it’s not me when I call them back with my best BBC voice.

  26. ShadowFalls says:

    @SOhp101:

    Having proof of such calls short of a consentual recording of such is pretty hard as most debt collectors and other callers for that matter, use unlisted numbers which just show up as “Unknown Caller”

  27. benn09 says:

    I kept getting all these “Sorry, wrong-number” calls on my dorm phone at 8:30 in the morning. Then one day I got a strange automated voice mail telling me to call an 800 number regarding a personal matter. I was curious, so I called and while I was on hold I googled the telephone number. It came up as a debt collector and I was scared out of my mind — I didn’t think I had any debts! Turns out, they had the number in the computer wrong and even told me the name of the woman they were looking for — that doesn’t seem legal to me.

  28. FLConsumer says:

    @swalve:

    It seems silly to think that someone trying to collect a legitimate debt wouldn’t be able to leave a message on a machine on a phone number the debtor has given as a place to communicate with them.

    I highly doubt any debtor gives a collection agency their telephone number.

    @gorckat: I did something like that for solicitation calls pre-do not call list.. “This number does not wish to receive any sales, solicitation, or informational calls. However, if you still wish to leave a message of that nature, you agree to paying the recipient $500 to listen to your message. Payment must be received within 30 days. [beep].” While I never got $500 for a single call (probably could have if I went to small claims), I was able to score about $750 from 3 calls. In Florida, using automated machines to do solicitation calls are illegal, so between my message/disclaimer and their illegal use of a machine, they knew I had them by the balls. A quickly drafted letter from a local lawfirm sent to them offering a $250 settlement worked quite well.

  29. WTFN says:

    I had a collection agency call my house and ask for a friend that used my phone to call a 1-800 number that his parents said that called and asked for him to call. He does not live with his parents or with me but since he called from my house they had my number on the account also.

    When I proceeded to tell them that he did not live here and that I wanted to know how they got my number they told me ‘He called us from your number.’ When I told them to remove my number and never call again in a very angry tone, I was informed that they didn’t have the power to do that and that I shouldn’t let people use my phone.

    Now last time I checked I was paying my phone bill and did not need any stanger telling me who I can let use my phone. After yelling (not cussing, ok maybe a little..) The caller told me not to yell at them to which I informed them that they calle my house, my number and I would do what I wanted. Well this got me handed off to a supervisor and they tried to lecture me about who to let use my phone and asked that I give a message to my friend that he owed $100 on his Bon-Ton credit card and the account number was 111-22-3333. Funny thing is… THAT’S HIS SOCIAL SECURITY NUMBER!! I told them that the account number sounded like a social security number and that it was illegal to use them for account numbers. I finally told them to never call again and hung up. Never heard from them again.

    Gotta love that they felt I should have his SSN#!

  30. Hawk07 says:

    For about 4 weeks in a row, I kept getting an automated voice message left on my cell saying:

    “We have to discuss a personal business matter with Luther Something. Please call 1-888-something back and use reference code something”

    Considering my name isn’t Luther, I thought they must have had the wrong number. Anyways, I googled the 800 number on my Caller ID and the only website I brought up had other people complaining it was a debt collector. I think it was a scam debt collector though b/c people were saying that this person claimed to be collecting debt for AOL, yet some of the people had never had AOL. Also, everybody said it was some foreigner on the line

  31. Hawk07 says:

    @mathew:

    I think we got the same call b/c all the facts you listed match up to what I got.

    like I said above, I think it was a scammer collecting on madeup debt.

  32. @swalve: “It seems silly to think that someone trying to collect a legitimate debt wouldn’t be able to leave a message on a machine on a phone number the debtor has given as a place to communicate with them.”

    You supposed to get specific permission to leave health care information (test results, doctor’s appointments) or educational information protected by FERPA (grades, disciplinary information) on answering machines or voice mail. Debt collection has similar privacy laws around it.

    The difference, I suppose, is that a lot of debtors are trying to avoid the debt collector whereas most people don’t go out of their way to never take a call from the doctor, so it can leave collectors in an awkward position with no way to contact the person.

  33. j-o-h-n says:

    @Crazytree: “Until I see a court ruling to the contrary, this is a perfectly foreseeable, acceptable and unavoidable consequence of being in arrears on your bill payments”

    The problem is, this *isn’t* always the case. There is some mush-for-brains collection agency in Colorado that keeps calling us (no message, but caller-id verifies it is them) about some Doctor’s bill that our insurance company paid months ago (and the Doctor’s office has confirmed to me that the account is completely settled with a $0 balance).

  34. kaikhor says:

    I get these phone calls all the time on the house phone (which we only have because AT&T won’t give us Internet without it). We hooked up an answering machine just so we wouldn’t have to listen to the phone ring forever but didn’t set up a message. We get phone calls like this all day long for several different people.

    On the occassions I answer the phone they ask if they can speak to whomever, when I say “they don’t live here” they ask if this is the (Insert their last name here) residence. I usually just want to scream, but instead just tell them no. It usually works after a day or two.

    It is interesting that they can’t call more than once a day, though. I, unfortunately, have a credit card that is behind and my cell phone currently shows over 80 calls placed in less than 30 days. It’s getting ridiculous (and yes, I’m in the process of paying the bill and I don’t blame them for wanting their money, just that they seem to call constantly while I’m at work)

  35. nidolke says:

    @WTFN: I hope you told your friend about all this.

  36. Crazytree says:

    @j-o-h-n: You can make them disappear in a poof of smoke.

    Ask them to validate the debt by writing a DEBT VALIDATION LETTER. Google it.

    I’ve only done limited work with consumer debtors, but this validation has been HIGHLY EFFECTIVE in making bad debt collections go away FOREVER.

    Please write this letter TODAY.

  37. Deusfaux says:

    @kingoman:

    says the BC Canadian Bar Association page:


    Your first choice is to complain

    If you complain to the Business Practices & Consumer Protection Authority, the Authority will investigate and can take steps against the debt collector or creditor. To make a complaint, call 1.888.564.9963 (toll-free). (Generally this involves sending a formal registered letter requesting them to stop as you believe you’re not the debtor they are after, and then following up with the CPA the first time they violate that request).

    Your second choice is to only accept written communications.

    If the nature or frequency of the collection telephone calls is upsetting you and the calls won’t stop, you have the right to demand in writing that all future communication be in writing only. It’s an offence if a debt collector doesn’t follow your request.

    Your third choice is to ask the creditor to sue you

    If the debt is disputed, you have the right to notify the creditor and the collection agency in writing that you want the creditor to take the matter to court. Upon written notification, all other types of collection must stop.