FDCPA Voicemail Rules May Change

Under the Fair Debt Collection Practices Act, 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.

There are also 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. This has traditionally meant that collectors could not leave a message on one’s answering machine, for fear that a third party might hear the message; the collector cannot disclose the communication (that the call is for collection purposes) without violating the consumer’s privacy.

Some collectors have been successfully sued for violating debtors’ privacy by leaving answering machine messages that could then be accessed by a third party. Others have been sued for leaving vague answering machine messages that didn’t clearly identify them as collectors. Courts have definitively ruled that collectors must follow every aspect of the FDCPA, and may not violate one clause to satisfy another. The bottom line is, under the FDCPA, debt collectors should not leave answering machines or voicemail messages.

Debt collectors have long sought to change aspects of the FDCPA to allow them to leave messages without making themselves vulnerable to FDCPA violations. Earlier this year, an amendment to the FDCPA was presented to Congress, called the “Fair Debt Collection Practices Clarification Act of 2012,” that would help them achieve their goal. The amendment would scale back consumer privacy rights by allowing collectors to leave messages, but would require the Consumer Financial Protection Bureau to come up with official language for collectors to use when leaving phone messages.

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 any communication.

An important thing to remember about the FDCPA: the law applies to debt collectors, which does not include the original creditor you borrowed from. Under federal law, the FDCPA does not bind creditors; only third parties to whom the debts are sold or assigned for collection. However, a few states have their own debt collection laws that require original creditors to abide by FDCPA-like rules as well. We know California, Utah, and Wisconsin have such rules, and other states may as well, though it’s difficult to say with certainty until courts interpret the laws on the books. As courts hear cases and issue rulings based on these laws, we’ll find out which other states extend FDCPA protections to consumers when dealing with original creditors.

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