Judge Rules for Collection Agency in Voicemail Case; Foti Compliance Evolving

A recent case in Minnesota over a voicemail left by a debt collector provided yet another entry in the ongoing saga over the ARM industry’s use of messages in the wake of the Foti ruling. A positive ruling for the collection agency, this case may have provided some Foti-compliant language for collectors to use.

The case, Zortman v. J.C. Christensen & Associates, Inc., was decided May 2 in United States District Court, Minnesota District. In it, a consumer alleged that a debt collector working for J.C. Christensen (JCC) left a voicemail that was heard by the plaintiff’s children. Subsequently, she sued JCC for a third party disclosure violation of the Fair Debt Collection Practices Act (FDCPA).

Zortman incurred a debt on a Kohl’s Department Store credit card. The debt of $648.39 went unpaid and was referred to JCC for collection. JCC was provided with two phone numbers, one listed as a work number and one as a home number. The work number was, in fact, a cell number. JCC called that number and left the following message:

“We have an important message from J.C. Christensen & Associates. This is a call from a debt collector. Please call 866-319-8619.”

The plaintiff loaned her phone to her children, who heard the message and told their mother. She was forced to admit to the children that the family was under financial stress. This led to emotional distress and loss of sleep, so Zortman filed suit against JCC.

JCC eventually moved for summary judgment, which is what the court was considering. The company argued that a judgment against it would effectively prohibit debt collectors from using telephones to collect, a right expressly guaranteed by the FDCPA. JCC noted that the message did not identify a consumer nor did it identify a specific debt. It merely disclosed any information that would have been available on a caller-ID log and an Internet search, while complying with the mini-Miranda requirement under the FDCPA.

The judge agreed, noting, “In view of the technical reality that—short of requiring debt collectors to block their numbers—it is virtually impossible to use a telephone without revealing directly or indirectly that a debt collector is calling,” it was ruling that the message was not a “communication” under the FDCPA, and thus, not a violation.

The important turn here was that JCC did not convey information regarding a debt. Since anyone could have reasonably looked up the number left on the phone’s call log and determined that the message was indeed from a debt collector, JCC did not intentionally disclose any specific information about the debt or debtor.

This is an interesting development in the Foti matter. It should be noted that this case was decided by a single district judge and it is not known whether the plaintiff will appeal.

Also of note, the plaintiff in the case worked for a separate debt collection agency, according to the decision. With so many employed by the ARM industry, it’s bound to happen; collectors are consumers as well, after all. But it’s still interesting that a consumer in a potentially pivotal case was, in fact, a part of the collection industry.