Ninth Circuit Court of Appeals Rules - Failure to Specifically State “This Communication is From a Debt Collector” is Not FDCPA Violation

Yesterday, the Court of Appeals for the Ninth Circuit reversed a decision from a district court in a bench trial that a collection law firm had violated the Fair Debt Collection Practices Act (FDCPA) by failure to specifically state in a voice message: “This communication is from a debt collector.”

The case is Davis v. Hollins Law, a Professional Corporation, (Ninth Circuit Court of Appeals, Case No 2:12-cv-03107). A copy of the opinion can be found here.

Background

Plaintiff Michael Davis obtained an American Express TrueEarnings Business Card at Costco in 2009.  In order to qualify for a business card, Davis filled in the credit card application with information about his wife’s real estate practice, even though his wife had stopped working in real estate the previous year. He subsequently used the card to purchase a number of personal items at Costco, including groceries, gas, and a 65-inch television. Neither Davis nor his wife ever used the card for business purposes.

Davis failed to pay the balance on the American Express card and his debt was referred to Hollins Law. The firm’s first contact with Davis was on July 23, 2012.  Between July 23, 2012 and September 25, 2012 the law firm and the plaintiff had significant interaction regarding a potential settlement of the account. The interaction included voice messages, telephone conversations, and email exchanges.

Then, on September 25, 2012 an employee of the law firm (Gregory Daulton) left the following voicemail message for Davis:

“Hello, this is a call for Michael Davis from Gregory at Hollins Law. Please call sir, it is important, my number is 866-513-5033. Thank You.”

In the voicemail message, the employee did not state that Hollins Law was a debt collector. However, Davis later admitted in response to a discovery request that, “Upon hearing the voice message, . . . Plaintiff understood that it was from a debt collector by combining the message itself with Plaintiff’s prior knowledge that Defendant was a debt collector.”

After September 25, 2012 (from October 4 to October 12) Davis and the law firm employee exchanged eleven additional emails discussing a potential settlement of the account. By October 12 (the last email in the record), the two parties had still not reached an agreement to settle the debt.

On December 28, 2012, Davis filed suit against Hollins Law, alleging a violation of the FDCPA. In his complaint, Davis stated that Hollins Law was “attempting to collect a debt” on behalf of American Express and that by leaving the September 25th voicemail message, Hollins Law violated the FDCPA by (among other things) “failing to disclose in subsequent communications that the communication was from a debt collector” in violation of § 1692e(11).

The district court held a bench trial on April 15, 2014, and ruled in favor of Davis. The trial court held that the debt at issue was consumer debt because the credit card was “primarily used for household purposes” even though Davis had applied for a business credit card. Therefore, the FDCPA (which applies only to consumer debt) was applicable to communications from Hollins Law to Davis.

Further, the trial court held that because the September 25^th voicemail message failed to disclose that “the communication is from a debt collector,” it technically violated § 1692(e)(11), which imposes liability for the “failure to disclose in subsequent communications that the communication is from a debt collector.”

Although the trial court recognized that the violation was “clearly de minimis,” it proceeded to enter judgment in favor of Davis on June 24, 2014. Hollins Law timely appealed the district court’s judgment.

The Court’s Opinion

The appellate court began its analysis with a review of discussion of the standard for reviewing the message in question. The court wrote,

“We first apply an objective standard that takes into account whether Daulton’s voicemail message would be sufficient to disclose to the least sophisticated debtor that the call was on behalf of a debt collector. See Tourgeman, 755 F.3d at 1119. In applying this standard, we presume that the debtor has a basic level of understanding, which does not include “bizarre or idiosyncratic interpretations” of the communication at issue. Evon, 688 F.3d at 1027. We also must avoid taking a hypertechnical approach. See Tourgeman, 755 F.3d at 1119.”

The court then applied the law to the facts of this case. The court wrote,

“Before the September 25 voicemail message, Davis and Daulton had been involved in settlement negotiations for about a two week period. Davis had made a “telephone inquiry” to Daulton and had exchanged eight emails with him. At the time Daulton left the voicemail for Davis on September 25, Davis had a pending settlement offer to settle the debt for 30 percent of the total due and had asked Daulton for a status report regarding the creditor’s response. In the voicemail in question, Daulton identified himself as “Gregory at Hollins Law.”

We conclude, given the extent of the prior communications, that the voicemail message’s statement that the call was from “Gregory at Hollins Law” was sufficient to disclose to a debtor with a basic level of understanding that the communication at issue was “from a debt collector,” 15 U.S.C. § 1692e(11). Indeed, any other interpretation of Daulton’s voicemail message would be “bizarre or idiosyncratic.” Evon, 688 F.3d at 1027 (quoting Campuzano- Burgos, 550 F.3d at 298). Given the context, the call was not “false, deceptive, or misleading,” 15 U.S.C. § 1692e, and would not frustrate consumers’ ability to intelligently chart a course of action in response to a collection effort, see

Donohue, 592 F.3d at 1034. Although Daulton’s voicemail message did not expressly state that Hollins Law is “a debt collector,” § 1692e(11) does not require a subsequent communication from the debt collector to use any specific language so long as it is sufficient to disclose that the communication is from a debt collector, as it was here. See Tourgeman, 755 F.3d at 1119.

Because Daulton’s September 25th voicemail message was sufficient to disclose to the least sophisticated debtor that the communication at issue was “from a debt collector,” Hollins Law did not violate § 1692e(11) in its communications with Davis, and the district court erred in so holding.”

insideARM Perspective

It is always refreshing to see a court take a common sense approach to a FDCPA case. This court rejected the notion that the debt collector must say certain precise “magic words” to avoid liability under the statute.

On the other hand, industry best practices would suggest using the “magic words” could or would have avoided the time and expense of this litigation. That is the more conservative approach. This case is precedential for the ninth circuit.  Other circuits may come up with a contrary result under the same or similar facts.

insideARM would suggest the more conservative approach is probably the best approach. Use the full: “This communication is from a debt collector” language.