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)