I’ll be the first to admit that debt collectors have it rough these days. While there would seem to be a plethora of past due debts, at the same time, the economy is in bad shape and many people simply can not pay. So, the collection agencies and junk debt buyers of the world are becoming more aggressive with their collection tactics. Fortunately for the Broken Credit Bloggers we have the FDCPA and for those in Florida there’s also the FCCPA (many other states also have a mini-FDCPA such as Florida’s FCCPA). Let’s take a look at an order denying the debt collector’s motion to dismiss in a recent Florida debt collection case.
In Berg v. Merchants we see that debt collectors have another stumbling block when it comes to answering machines. If the consumer hears the message, then they have to read the mini Miranda, otherwise trouble with 1692e(11) which makes the following a violation:
“The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.”
And they also have to comply with 1692d(6) which makes the following a violation:
“Except as provided in section 804, the placement of telephone calls without meaningful disclosure of the caller’s identity.”
Now here’s the kicker. In addition to always complying with the above two, debt collectors are prohibited from violating 1692c(b) which states:
“COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, 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.”
The question then, is how does a debt collector comply with all three of the above when the debt collector has reason to believe there are other people living in the house with the consumer (spouse seems to be an exception)?
Berg v. Merchants Association Collection Division, Inc. No. 08-cv-60660-WPD (S.D. Fla. Oct. 31, 2008)
Something tells me that debt collector pre-recorded messages are going to go the way of the Dodo; however in the meantime, some consumers will be compensated nicely through damage awards from FDCPA (and other state mini-FDCPA such as the FCCPA for Floridians) violations that result from the inevitable answering machine message that is overhead.
This author is not an attorney and this information should not be considered legal advice. Please consult an attorney for legal advice.