11th Cir. Holds V-Mail Asking Debtor to Call Back is FDCPA ‘Communication,’ But Callers Needn’t Provide Names

The U.S. Court of Appeals for the Eleventh Circuit recently held that a voicemail from a debt collector that merely asks for the debtor to call back constitutes an initial communication under the federal Fair Debt Collection Practices Act (FDCPA) requiring the so-called “mini-Miranda” warning.

In so ruling, the Court also held that a debt collector employee does not need to reveal his or her name to provide “meaningful disclosure” of the caller’s identity.

A copy of the opinion in Hart v. Credit Control, LLC is available at:  Link to the Opinion.

The defendant debt collector left a voicemail for the plaintiff debtor stating “This is [the debt collector] calling with a message. This call is from a debt collector. Please call us at 866-784-1160. Thank you.”

That was the first call from the debt collector.  The message did not state that the debt collector was attempting to collect a debt from the debtor, or that any information obtained would be used for that purpose.  In addition, the individual employee of the debt collector did not identify him or herself by name. The debt collector later left several more similar voicemails.

The debtor filed an FDCPA lawsuit alleging violations of § 1692e(11) and § 1692d(6) for alleged false or misleading representations, and alleged harassment and abuse.

As you may recall, section 1692e(11) prohibits “[t]he 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.”

In addition, section 1692d generally prohibits harassment, oppression, and abuse in connection with the collection of a debt and under subsection (6) prohibits “telephone calls without meaningful disclosure of the caller’s identity.”

The debt collector filed a motion to dismiss, which the trial court granted, reasoning that the first voicemail was not a debt collection “communication” under the FDCPA, and the voicemails provided “meaningful disclosure” because they contained enough information not to mislead the consumer about the purpose of the call. The debtor appealed.

On appeal, the Eleventh Circuit reversed in part and affirmed in part.

The Court held that the first voicemail fell under the FDCPA’s definition of “communication,” because the voicemail conveyed “information regarding a debt [either] directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2).

Even though the voicemail message did not reference the debt in any way, the Eleventh Circuit pointed out that the voicemail conveyed information directly to the debtor by asking to speak with her and providing instructions to return the call, and that it conveyed information “regarding a debt.” The Court noted a “communication” does not have to convey anything more specific than that it is about a debt.

The Eleventh Circuit then concluded that because the first voicemail was the debt collector’s first communication with the debtor, the debtor collector should have but failed to provide the “mini-Miranda” warning and thus violated § 1692e(11), thus reversing the district court’s grant of the motion to dismiss.

Turning to the § 1692d(6) claim, the Eleventh Circuit noted that the FDCPA is silent about what “meaningful disclosure” of a caller’s identity means, and listed several cases with various holdings and outcomes. The Court then concluded that the debt collector had provided meaningful disclosure, even though the employee callers had not provided their names, because the voicemail messages provided the name of the company.

Accordingly, the Eleventh Circuit affirmed the trial court’s ruling dismissing the §1692d(6) claim, and reversed and remanded as to the § 1692e(11) claim.

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Amy Jonker is a commercial litigator whose practice focuses on defending consumer financial services companies in class actions, individual matters, and regulatory investigations, representing employers in investigations and litigation, and successfully resolving commercial disputes. She has extensive experience delivering positive outcomes in complex commercial litigation in state and federal courts across the country, including for many financial institutions and law firms for claims filed under the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), the Fair and Accurate Credit Transactions Act (FACTA), the Telephone Consumer Protection Act (TPCA), UDAAP and state consumer protection laws, under the Family and Medical Leave Act (FMLA), Title VII, the Americans with Disabilities Act (ADA), whistleblower claims, and in complex insurance disputes. Her experience covers all phases of litigation at both federal and state levels, including obtaining dismissals of complaints, obtaining summary judgment on claims and defenses, handling all phases of discovery in both individual and class actions, negotiating individual and class action settlements, preparing for and participating in trials and arbitrations, conducting oral arguments, and federal and state court appellate work.