FDCPA Voicemail Rules May Change

Understanding the Fair Debt Collection Practices Act (FDCPA)

Under the Fair Debt Collection Practices Act (FDCPA), debt collectors are required to identify themselves in any communication with a debtor. This rule prevents collection agents from tricking consumers into returning calls or other communications without knowing the nature of the communication.

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Privacy Protections Under the FDCPA

There are privacy protections built into the FDCPA that prohibit collectors from disclosing any information about a consumer’s debt to a third party. This includes the mere fact that the consumer is in debt at all.

• Traditionally, this meant that collectors could not leave a message on one’s answering machine, fearing that a third party might hear the message.
• Collectors cannot disclose the communication (that the call is for collection purposes) without violating the consumer’s privacy.

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Legal Challenges for Debt Collectors Regarding Voicemail Messages

Some debt collectors have faced lawsuits for violating debtors’ privacy by:

• Leaving answering machine messages that could be accessed by a third party.
• Leaving vague answering machine messages that failed to clearly identify them as collectors.

Courts have definitively ruled that collectors must follow every aspect of the FDCPA and cannot violate one clause to satisfy another. The bottom line is that, under the FDCPA, debt collectors should not leave answering machine or voicemail messages.

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Proposed Changes to the FDCPA

Debt collectors have long sought changes to the FDCPA to allow them to leave messages without exposing themselves to legal risks.

• In 2012, Congress reviewed an amendment called the “Fair Debt Collection Practices Clarification Act of 2012.”
• This amendment aimed to scale back consumer privacy rights by allowing collectors to leave messages, with official language for those messages to be determined by the Consumer Financial Protection Bureau.

It’s unclear whether this amendment will pass, but for now, debt collectors must respect debtors’ privacy rights while maintaining full and honest disclosure in all communications.

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Does the FDCPA Apply to Original Creditors?

An important thing to note about the FDCPA is that it applies to debt collectors, not original creditors:

• The law does not bind the original creditor you borrowed from under federal law. It only applies to third parties to whom the debts are sold or assigned for collection.
• However, some states have their own debt collection laws that require original creditors to follow FDCPA-like rules.
  • California, Utah, and Wisconsin are known to have such rules.
  • Other states may also extend FDCPA protections, but the specific laws may vary until courts interpret them through legal cases.

As courts issue rulings based on state laws, we will learn which other states extend FDCPA protections to consumers when dealing with original creditors.

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