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.


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