Terminating A Wrongfully Filed UCC Financing Statement

The Florida Uniform Commercial Code §679.513 F.S. establishes the circumstances under which a termination statement (UCC-3) must be filed, and in connection with §679.509 F.S. provides a self-help remedy when secured parties fail to properly terminate a financing statement (UCC-1) or when a statement is wrongfully recorded. 

Section §679.513 requires that a termination statement be filed by the secured party when an obligation secured by collateral ceases to exist or the obligation or duty to give value ends.  In the event a secured party fails to file the termination statement, or the debtor did not authorize the filing of the financing statement to begin with, the statute gives the person whose property is wrongfully encumbered an avenue to have the financing statement terminated with or without the cooperation of the party who filed it.

The debtor must send a signed letter to the secured party demanding the filing of a termination of the financing statement within twenty (20) days of the filer’s receipt of the demand.  The demand is to be sent to the address listed for the secured party on the financing statement.  If sent to the address on the financing statement the letter will be presumed to have been delivered.  If the secured party fails to file the termination within the twenty (20) day period, the debtor is authorized to file a termination statement herself pursuant to §679.509(3).  Additionally, a person who files an unauthorized financing statement is liable under §679.625 for actual and statutory damages.

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Debt Collector Reliance on Creditor Determination of Debt

In Cooper v. Litton Loan Servicing, et al, 253 B.R. 286 (N.D.Fla.2000), the court reviews, among other issues, whether a debt collector faces liabilty under the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Credit Practices Act (FCCPA) for attempting to collect a debt, the amount of which was determined by the creditor and communicated to the debt collector, but turned out to be incorrect.

In this case a law firm was hired to collect a debt.  The consumer had filed for bankruptcy and the attorney filed a Proof of Claim and a Motion to Lift Automatic Stay with the bankruptcy court, the proper actions for a creditor to take under the bankruptcy code.  The actual amount of the debt was disputed by the debtor, who brought a claim for violation of the FDCPA and FCCPA seeking statutory and punitive damages.

The court ruled for the attorney stating, “[a]ttorneys and debt collectors are entitled to rely on the information they receive from the creditor.  They are not held strictly liable when they mistakenly attempt to collect amounts in excess of what is due, if they reasonably relied on information provided by their clients.”  Smith v. Transworld Systems, Inc., 953 F.2d 1025 (6th Cir. 1992); Jenkins v. Union Corp., 999 F.Supp. 1120 (N.D.Ill. 1998); Ducrest v. Alco Collections, Inc., 931 F.Supp. 459 (M.D.La. 1996) See Also Amond, 175 F.3d 1013 (4th Cir. 1999) and Jenkins, 124 F.3d 824 (7th Cir. 1997).  The court also goes on to site the principal that lawyers do not face strict liability for asserting in good faith a claim that is ultimately rejected by the court.

The FDCPA does not require that the debt collector make an independent investigation of a debt claimed to be owed by a creditor, and it does not require a debt collector to dispute the creditors construction of the contract creating the debt.  Cooper citing Ducrest v. Alco Collections, Inc., 931 F.Supp. 459 (M.D.La.1996) citing Smith v. Transworld Systems, Inc., 953 F.2d 1025 (6th Cir. 1992).

The Court ruled, in relation to the claim against the subject attorney, that the Complaint in this case failed to state a claim on which relief can be granted, because there are no allegations tending to show an unreasonable reliance on or knowledge of a miscalculation of the amount owed.

Foti & Berg Decisions and the Use of Recorded Messages in Debt Collection

The FDCPA was enacted “to eliminate abusive debt collection practices by debt collectors, to insure those debt collectors who refrain from using abusive debt collection practices are not completely disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 USC Sec. 1692e. Specifically, the FDCPA prohibits unfair or unconscionable collection methods, conduct which harasses, oppresses or abuses any debtor, and the making of any false, misleading, or deceptive statements in connection with a debt, and it requires that collectors make certain dislosures. 15 USC Sec. 1692. 

In order to be subject to some of the protections of the FDCPA, correspondence must be a “communication” within the meaning of the Act.  In Foti v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643 (SDNY 2006), the Court considered whether a Pre-recorded message that does not convey specific information regarding the debt is a communication subject to the FDCPA. And, in Berg v. Merchants Association Collection Division, Inc., 586 F.Supp.2d 1336 (S.D.Fla. 2008), the court extended its analysis to voice mail messages where the debt collector, consistent with Foti decision, conceded the message was a “communication”, but argued that the form of the message complied with the requirements of the FDCPA.

The significance of these decisions is the court’s analysis of potential conflict between provisions of the Act that require the debt collector to identify themselves as debt collectors and that prohibit disclosure of the existence of the debt to third parties.  In Foti the debt collector sought to comply with the prohibition against disclosure of the debt to third parties through its pre-recorded message by not disclosing the debt or that it was a debt collector in its message. The debt collector argued that because it did not disclose the debt that the message was not a “communication” under the Act, and did not trigger disclosure requirements whereby it was required to identify itself as a debt collector. In Berg the debt collector did not dispute that the voice mail message was a “communication” but argued that because the message was left on a home voice mail, that it provided a forewarning for third parties to disconnect, and following forewarning provided all required disclosures, that the message was in compliance with the Act.

Pre-Recorded Message–Foti v. NCO Financial Systems, Inc., 424 F.Supp.2d 643 (S.D.N.Y. 2006)

In Foti the debt collector utilized a computer dialer that contacted the consumer and played the following prerecorded message: “Good day, we are calling from NCO Financial Systems regarding a personal business matter that requires your immediate attention. Please call back 1-866-701-1275 once again please call back, toll free, 1-866-701-1275, this not a solicitation.”

NCO argued that this pre-recorded message was not a communication because it did not convey any information about the debt, and, therefore, did not trigger the requirement that the debt collector identify itself as such.

The court addresses the following issues in its opinion: First, is a pre-recorded message a communication? Second, must the debt collector identify itself as such in connection with all communications?

The Foti court notes that the FDCPA defines “communication” very broadly as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” The Foti court cites Hosseinzadeh v. M.R.S. Assoc., Inc., 387 F. Supp. 2d 1104 (C.D. Cal 2005), as a case where an almost identical message was deemed to be a communication. In Hosseinzadeh the debt collector argued that its standard voice mail messages were not “communications” because they did not convey information directly or indirectly to any person.  The message in Hosseinzadeh stated as follows: “Hello, this is Thomas Hunt calling. Please have an adult contact me regarding some rather important information. This is not a sales call, however, regulations prevent me from leaving more details. You will want to contact me at 1-877-647-5945 as soon as possible. This is a toll free number. Once again this is Thomas Hunt calling and my number is 1-877-647-5945. Thank you.”

The Hosseinzadeh Court rejected the argument that the message was not a “communication” because, Sec. 1692a(2) applies to information conveyed directly or indirectly. Therefore, while the messages may not technically mention specific information about a debt or the nature of the call it did convey information including the fact that there was an important matter that she should attend to and directions on how to do so.

The court rejects a narrow interpretation of the word “communication”, and in support of this rejection, in addition to the Hesseinzadeh decision discussed above, the court cites West v. Nationwide Credit, 998 F. Supp. 642 (W.D.N.C. 1998), which also discussed communication in the context of contact with a third party.  In that case the debt collector contacted the consumer’s neighbor and indicated that he had a “very important” matter to discuss. The West court rejected a narrow interpretation of the term “communication” and in doing so noted that in interpreting the meaning of a statute, it is well settled that the plain meaning of statutory language controls its construction.  Also See Summit Inv. & Dev. Corp. v. Leroux, 69 F.3d 608 (1st Cir. 1995). Thus, the Foti court concludes, given the choice of language by Congress, the FDCPA should be interpreted to cover communications that convey, directly or indirectly, any information relating to a debt and not just when the debt collector discloses specific information about the particular debt being collected.

The court then addresses whether a debt collector must identify itself in all communications.  In Hosseinzadeh, the court ruled that identification of the caller as a debt collector was not required in subsequent communications where the consumer was already aware of the identity of the debt collector.  In rejecting this portion of the ruling by the Hosseinzadeh court, the Foti court notes that this ruling was made in reliance on the decision in Pressley v.  Capital Credit &  Collection Serv., 760 F.2d 922 (9th Cir. 1985) (disclosure not required in all communications because such a conclusion ignores balancing required by Congress to weigh the interests of protecting debtors from abuse against the interests of honest debt collectors).  Pressley was subsequently rejected in several circuits including in Pipiles v. Credit Bureau of Lockport, Inc., 886 F. 2d 22 (2nd DCA 1989).  The Pipiles court gives three reasons for its rejection of Pressley: First, were balancing undertaken as is suggested in Pressley, the clear and unambiguous language of Congress requiring disclosure in “all communications” would in effect be changed to “some communications”; Second, by requiring disclosure in all communications Congress has insured that even if the first notice is not received by the consumer, that subsequent communications will provide the required disclosures; Third, if Congress wanted the Act to require something other than disclosure in “all communications” it could amend the act, but it has not. The Foti court then directs attention to Tolentino v. Friedman, 46 F.3d 645 (7th Cir. 1995), where the court rejected the reasoning in Pressley to find an attorney liable under the FDCPA for failure to include the mini-miranda in subsequent communications with the consumer.   In rendering its opinion the Tolentino court sites decisions from the third, fourth, and sixth circuits that follow the reasoning of the second circuit in Pipiles.  See Dutton v. Wolpoff & Abramson, 5 F.3d 649 (3d Cir. 1993); Carroll v. Wolpoff & Abrahamson, 961 F.2d 459 (4th Cir. 1992); Frey v. Gangwish, 970 F.2d 1516 (6th Cir. 1992).

The Foti court also addresses the debt collectors assertion that a broad interpretation of the term “communication” may put collectors in a position where pre-recorded messages or voice mail messages may not be able to be used; because, if the message is a communication it will require identification of the sender as a debt collector and this places the collector in danger of dislcosing the debt to third parties who may overhear or inadvertantly receive the message.  The court comments that arguing that a pre-recorded message should be catagorized as not a communication to avoid this circumstance presuposes the collector is somehow entitled to leave pre-recorded messages. The court concludes that the fact that a collector may not be able to leave pre-recorded messages that comply with all provisions of the Act does not warrant an interpretation of the Act that narrowly construes the term “communication”.  The court notes that other avenues of collection are still available such as direct contact and appropriate letters.

Voice Mail with Forewarning–Berg v. Merchant’s Association Collection Division, Inc., d/b/a. MAF, 586 F.Supp.2d 1336 (S.D.Fla 2008)

The decision in Foti is adopted and extended in the context of voice mail messages in Berg v. Merchants, 586 F.Supp.2d 1336 (S.D.Fla. 2008). In Berg the consumer alleges that the debt collector left voice mail messages at his residence eleven times in the course of one year.  The messages stated as follows: “Hello. This message is for Thomas Berg. If you are not the person requested, disconnect this recording now. By continuing to listen to this recording you acknowledge you are the person requested. This is MAF Collection Services. We are expecting your call at 1-800-749-7710. This is an attempt to collect a debt. Any information obtained will be used for that purpose. 1-800-749-7710.”

The consumer alleged that his father, step-mother, step-mother’s ex-spouse, girlfriend and neighbor all heard the message at one time or another.

The consumer in Berg contends that the messages amounted to unauthorized communications with third parties because the debt collector had reason to know persons other than the consumer would hear the messages. The debt collector does not deny that the subject voice mail is a “communication” under the FDCPA, but counters that when a voice mail message is left on a home voice mail it does not fall within restrictions against communications with third-parties. The debt collector further contends that because the message provides the oportunity for third parties to disconnect from the call it is in compliance with the FDCPA.

The Berg court first discusses whether the subject message is a “communication”.  The definition of “communication” in the FDCPA (15 U.S.C. 1692c(b)) is, “the conveying of information regarding a debt directly or indirectly to any person through any medium.”  In line with the Foti decision, the Berg court notes that, “courts generally consider pre-recorded messages and voice mail messages from debt collectors to be ‘communications,’ even if the messages do not state what the calls are regarding.” See Belin v. Litton Loan Servicing, LP, 2006 WL 1992410 *4, 2006 U.S. Dist. LEXIS 47953 *12 (M.D.Fla. July 14, 2006) (messages left on the debtor’s answering machine were “communications” under the FDCPA); Foti v. NCO Fin. Sys., 424 F.Supp.2d 643 (S.D.N.Y. 2006) (voice mail message is a “communication” under FDCPA); Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104 (C.D.Cal. 2005) (same); But See Biggs v. Credit Collections, Inc., 2007 WL 4034997 *4, 2007 U.S. Dist. LEXIS 84793 *12-13 (W.D.Okla. Nov. 15, 2007) (voice mail message not a “communication” because it contained no information regarding a debt).

Next, the Berg court discusses the FDCPA prohibition against disclosing a debt to third parties.  Section 1692c(b) requires, with limited exceptions, that debt collectors communicating with third parties may not reveal that the consumer owes a debt, unless the debt collector obtains prior consent of the consumer given directly to the debt collector. Sec. 1692c(b). Congress gave the Federal Trade Commission the authroity to enforce the FDCPA, and the court, therefore, gives significant weight to its interpretation of the statute.  The Berg court noted that in a staff commentary the FTC states, “a debt collector does not violate this provision when an eavesdropper overhears a conversation with the consumer, unless the debt collector has reason to anticipate the conversation will be overheard.” FTC Staff Commentary on the FDCPA, 53 Fed.Reg. 50104 (Dec. 13, 1988).

The Berg court then discusses whether leaving a message on a home voicemail precludes violation for disclosure to third parties.  The court states that FTC v. Check Enforcement, 2005 WL 1677480 *8 (D.N.J. 2005), is the only case it is aware of where the court specifically ruled on the issue of voice mail messages left on home answering machines; that leaving messages on an answering machine heard by third parties was a violation. This ruling was issued without discussion. The precident established in Check Enforcement, taken together with the FTC Staff Opinion supports the position by the court that debt collectors should have reason to believe that messages left on home voice mail may be overheard by third parties.

The Berg court lastly discusses the affect of a pause in the message to allow third parties to disconnect from the call.  The court states that assuming for the sake of argument that a forewarning alerting third parties to disconnect was adequate to avoid disclosure to third parties who wrongfully received a collection message, it would not alleviate the issue of third parties overhearing the message played by the consumer in the presence of third parties.  Further, the consumer continuing to listen to the message in the presence of third parties does not constitute prior consent as required by the FDCPA.

_____

The Courts in Foti and Berg have left open the possibily that a debt collector could utilize pre-recorded or voice mail messages in a way that complies with the requirement of identification of the debt collector and that does not violate the prohibition of communication of the debt directly or indirectly to third parties, but the court has not opined on how this might be accomplished. In fact the Court makes a point to warn debt collector that they use these methods at their own risk, and to point out the other methods available to debt collector to communicate with consumers such as appropriate letters.

The debt collector wanting to avoid liability under the FDCPA should adopt a comprehensive strategy to locate and communicate with consumers that avoids the use of pre-recorded or voice mail messages all together.  One such strategy might include beginning with phone calls by live callers limited in number and spaced out over time to avoid allegations of harrasment whereby no voice mail messages are left.  If live contact cannot be made by phone with the consumer, the debt collector will then resort to the other tools availble to it to locate and make contact with the consumer, such as permitted contact with third parties to obtain location information or communication in writing with the consumer. Once contact has been made, new location information obtained, or the debt collector has other reason to believe that live contact by phone will be successful, efforts to contact the consumer by phone can resume.

The Supreme Court’s Equitable Basis for not Extending the Bona Fide Error Defense to Mistakes of Law

In Jerman v. Carlisle, et al., 130 S.Ct. 1605 (2010), the United States Supreme Court addressed a conflict among Circuits regarding whether the Bona Fide Error Defense in the Fair Debt Collection Practices Act applies to mistakes of law.  The statutory language of the Bona Fide Error defense provides that, “a debt collector may not be held liable in any action brought under (the FDCPA) if the debt collector shows by a proponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” Section 1692k.

The District and Circuit Courts acknowledged a division of authority regarding whether a mistake of law qualified as a Bona Fide Error, and both ruled in favor of the debt collector.  The Circuit Court, in its ruling, recognized that the majority view is that the defense is available for clerical and factual errors only, but ruled to extend the Defense to mistakes of law. The Supreme Court declined to extend the protections of the Bona Fide Error defense to mistakes of law.

The Court’s decision is based on textual interpretation of the FDCPA, but the Court also discusses equitable considerations that contributed to its decision.  Following is a summary of that discussion:

The Court expresses concern that since debt collectors are normally compensated by a percentage of the amount collected that they would be motivated to push the legal limits of the FDCPA to maximize recovery; and, if the Bona Fide Error defense is extended to include mistakes of law, all debt collectors would in effect be immune from suit by merely seeking the advice of legal counsel.  Further, the Court reasons that this would give a competetive advantage to unethical debt collectors and drive ethical collectors out of business.  The Court concludes that this is at odds with the purpose of Congress in enacting the FDCPA: “to eliminate abusive debt collection practices by debt collectors, [and] to endusure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged” Sec. 1692(e).

The Court is also concerned that extending the defense to mistakes of law will necessitate examinations of the debt collectors subjective intent to violate the FDCPA, including determining what procedures are reasonably adapted to avoid legal error, as required by the statutory language.

Further, in any factual circumstance that the law is unsettled, the uncertainty will allow the debt collector to plead the Bona Fide Error defense.  This will have a chilling affect on private suits to enforce the FDCPA, which the statutory scheme established by the FDCPA is meant to encourage.

Conversely, the Court does not anticipate that its refusal to extend the defense will place an unmanagable burden on debt collectors.  And, if Congress is persuaded by the debt collectors arguments presented, the Court says, it can amend the FDCPA to account for them.

This ruling leaves debt collectors in a position of uncertainty when it comes to unanswered conflicts in the law.  The debt collector cannot rely on good faith interpretation of the decisional law to protect it from suit.  The only recourse for the debt collector seeking a reliable interpretation of unsettled law is to seek an Advisory Opinion of the Federal Trade Commission, but the Court acknowledges, based on evidence of the FTC’s ability to issue opinions in a timely manner, that this is not a practial remedy.

Including Attorney’s Fees in Validation Notice

The FDCPA prohibits a debt collector from collecting any amount unless it is expressly authorized by the agreement creating the debt or is permitted by law. 15 U.S.C. Sec. 1692f. Even if attorney’s fees are authorized by a contract, a debt collector must still clearly and fairly communicate how the total amount due was calculated. Fields v. Wilber Law Firm, P.C., 383 F.3d 562 (7th Cir. 2004).

In Veach v. Sheeks, 316 F.3d 690 (7th Cir. 2003), the court ruled that it was a violation for a debt collector to include statutory treble damages in its notice of rights.  In rendering that decision the court reasoned that the purpose of the requirement to notify the debtor of the amount of the debt is to communciate what the current obligation is not what the worst case scenario might be. Since the debtor could not be held liable for treble damages, court costs or attorney’s fees until there has been a judgment by the court they cannot be included as part of the remaining principal balance of the debt.

In subsequent cases the Seventh Circuit distinguished Veach, in which the attorney’s fee obligation was statutory, from cases in which the obligation was based on a written contract. In Fields v. Wilbur Law Firm, P.C., 383 F.3d 562 (7th Cir. 2004), the stated debt was based on a written, signed contract, and the debt collector was attempting to collect an undisputed debt, an undisputed amount in interest, and attorney’s fees disputed for its reasonableness only. The fields court ruled that, “when a debtor has contractually agreed to pay attorney’s fees and collection costs, a debt collector may, without the court’s permission, state those fees and costs and include that amount in the dunning letter.” However, the court ruled against the debt collector, because it did not segregate the attorney’s fees sought to be collected from the principal amount of the debt, which, the court concluded, could reasonably confuse the consumer about the nature and amount of debt sought to be collected.

In Singer v. Pierce & Associates, P.C., 383 F.3d 596 (7th Cir. 2004), the court ruled that the debt collector including $2574.00 in attorney’s fees in a payoff letter requested by the consumer, when the court ruled in a subsequently vacated order that reasonable attorney’s fees were $1100.00, was not a violation because the collection of reasonable attorney’s fees was authorized by contract.  The Singer court compared its facts to those in Fields and indicated that unlike in Fields, the debt collector in its case had segregated the amount of attorney’s fees sought to be collected from the principal balance due avoiding confusion to the consumer about the nature and amount of the debt sought to be collected.

Regarding the amount of fees claimed, the court in Fields states, “to collect attorney’s fees from Fields, Wilbur necessarily had to specify an amount that it intended to charge for its services. Fields, of course, could negotiate this payment or contest the reasonableness of the fees through a lawsuit.” But, the court concludes, stating the amount sought without the court’s permission does not violate the FDCPA.

Under the above cases a debt collector may include attorney’s fees and costs in its notice of the amount of the debt, when the right to fees is based on a written contract signed by the debtor and the fees are stated separately from the principal amount of the debt due.  The consumer has the right to negotiate or contest the amount claimed, but the inclusion of the amount claimed, even if in excess of what the court may deem reasonable, does not violate the FDCPA.

The court has not ruled on whether including attorney’s fees is required. The language of the court’s opinions is generally permissive, indicating that a debt collector may include attorney’s fees in its statement of the amount due.  However, the only time the court directly addresses this issue is in dicta in Fields where it says, “indeed, refusing to quantify an amount that the debt collector is trying to collect could be construed as falsely stating the amount of debt.” In support of this proposition the court sites Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, and Clark, L.L.C., 214 F.3d 872 (7th Cir. 2000). The facts of that case did not specifically focus on attorney’s fees, but concerned a notice of an amount of debt that required the debtor to call a toll-free number to find out the total amount of the debt sought to be collected.

When Telephone Calls are Harassment

The number of telephone calls to a consumer by itself will not normally be evidence of harassment or oppressive conduct by a debt collector. For example in Tucker v. CBE Group, Inc, 2010 WL 1849034 (M.D. Fla. 2010), the debt collector called a home telephone number 57 times and up to seven times is a single day.  The court found this not to violate the FDCPA, because the debt collector never spoke to Plaintiff, was never notified that the debtor could not be reached at said number, and was never notified to stop calling. Along these same lines, in Udell v. Kansas Counselors, Inc., 313 F. Supp. 2d 1135 (D. Kan. 2004), the court found no violation where the debt collector made four automated phone calls over seven days and did not leave any messages. But, in Fausto v. Credigy Services Corp., 598 F. Supp. 2d 1049 (N.D. Cal. 2009), 90 phone calls to the consumer was possibly a violation when the content of the calls was harassing, callers failed to identify themselves, allowed the phone to ring continually, and called back immediately after consumer hung up.

The above cases demonstrate that the number of phone calls alone do not generally constitute harassment. It is the actions and behavior that accompany the phone calls that will cause a finding of harassment.  For example in Bingham v. Collection Bureau, Inc., 505 F. Supp. 864 (D.C.N.D. 1989), the court found that a call pattern of four days of calls followed by four days of no calls, when the debtor did not ask for the calls to stop, was not harassment; but, one occurance of a call back immediately after the consumer terminated a call is harassment.

Examples of actions during telephone calls that have lead the court to find violations of the FDCPA:

Threats of garnishment accompanied by demands for overnight sending of payments, and calls to consumer’s work place after requests to not call. Fox v. Citicorp Credit Services, Inc., 15 F. 3d 1507 (C.A. 9 Ariz.).

Failing to identify ones self as a debt collector and that the purpose of the call is to collect a debt. Costa v. National Action Financial Services, 634 F. Supp. 2d 1069 (E.D. Cal. 2007).

Debt collector continued to call consumer after she asked not to be called and had repeatedly refused to pay the debt. Gilroy v. Ameriquest Mortg. Co., 632 F. Supp. 2d 132 (D.N.H. 2009).

Making 54 calls to consumer at work and leaving 24 messages on work answering machine. Sanchez v. Client Services, Inc., 520 F. Supp. 2d 1149 (N.D. Cal. 2007).

Making comments to elderly consumer regarding her age, mental acuity and activity, and calling after being told not to. Chiverton v. Federal Financial Group, Inc., 399 F. Supp. 2d 96 (D. Conn. 2005).

Use of Recorded Messages in Debt Collection

In two decisions the lower federal courts have drastically limited the debt collectors ability to use pre-recorded message and voice mail messages to contact consumers who owe a debt. In Foti v. NCO Financial Systems, Inc., 424 F.Supp. 2d 643, (S.D.N.Y. 2006), the court ruled that a recorded message seeking to have a consumer contact the debt collector was a “communication” under the Fair Debt Collection Practices Act. And, as a communication it is required that the message disclose the identity of the caller as a debt collector. In Berg v. Merchant’s Assoc., 586 F. Supp. 2d 1336 (S.D. Fla. 2008), the court ruled that a message requesting the debtor by name and asking all others to disconnect before the caller is identified as a debt collector is not adequate to shield the debt collector from liability for communication with third parties. This leaves the debt collector in a position where it must disclose its identity as a debt collector in recorded messages, but in doing so it opens itself up to claims for disclosure of the existence of the debt to third parties. In both of the above cases the Court gives its opinion that a debt collector is not entitled to use recorded messages to collect a debt, and while it may be possible to do so without violating the FDCPA, the debt collector uses recorded messages at its own risk.