Voicemail Emerges Again With Questions of "Communication" and Meaningful Disclosure

Last Friday the Eleventh Circuit Court of Appeals issued an opinion addressing two specific issues under the Fair Debt Collection Practices Act (FDCPA): 

• Whether a voicemail left by a debt collector constitutes a “communication” under the FDCPA
• What information will and will not constitute a “meaningful disclosure”

The case is Hart v. Credit Control, LLC (Case No. 16-17126, U.S. Court of Appeals, Eleventh Circuit. A copy of the opinion can be found here. 

Background 

In March 2015 the plaintiff, Stacey Hart, received a call from Credit Control, LLC (Credit Control), a debt collector. When Hart did not answer the phone, Credit Control left a voicemail which, in its entirety, stated:

This is Credit Control calling with a message. This call is from a debt collector. Please call us at 866-784-1160. Thank you.

The call was Credit Control’s first communication with Hart. Although Credit Control was attempting to collect a debt from Hart, the individual caller did not disclose that information. Nor did the individual caller identify herself by name. Following that initial call and voicemail, Credit Control continued to call Hart, leaving substantially similar voicemails each time.

Hart filed a complaint in the Middle District of Florida alleging that Credit Control violated two provisions of the FDCPA—§ 1692e(11) and § 1692d(6)—governing false or misleading representations and harassment and abuse respectively.

Prior to any Discovery, Credit Control filed a motion to dismiss the complaint. The district court dismissed Hart’s claims.  In granting Credit Control’s motion to dismiss, the district court found that Credit Control did not violate § 1692e(11) because the first voicemail was not a “communication” within the meaning of the statute. The district court also found that Credit Control did not violate § 1692d(6) because its caller provided Hart with “meaningful disclosure.” The court reasoned that the voicemails provided “meaningful disclosure” because they contained enough information not to mislead the consumer as to the purpose of the call. 

After the order of dismissal Hart timely appealed the District Court decision. 

The Eleventh Circuit Opinion 

The appeal was heard by a three judge panel. 

In her complaint and on appeal Hart alleged and argued that Credit Control violated two sections of the FDCPA— § 1692e(11) and § 1692d(6). First, she argued that Credit Control violated § 1692e(11) when it failed to make the required disclosures for initial communications in its first voicemail to her. Second, she claimed that Credit Control violated § 1692d(6) when its individual callers did not identify themselves by name in any of the voicemails, thus failing to provide her with “meaningful disclosure.” 

Credit Control argued: 1) that it was not required to make such disclosures because the voicemail was not a communication, and 2) that the individual caller’s name is not necessary for such disclosure. 

Was the Voicemail a “Communication” under the FDCPA? 

In short, the court agreed with Hart and determined that the initial voicemail left by Credit Control was a communication within the meaning of the FDCPA, thereby triggering the requirements of § 1692e(11). 

Per the opinion: 

“The voicemail left by Credit Control falls squarely within the FDCPA’s definition of a communication. And because it was Credit Control’s initial communication with Hart, Credit Control’s failure to make the required disclosures was a violation of § 1692e(11). 

Credit Control’s first voicemail to Hart falls squarely within the FDCPA’s broad definition of communication. The voicemail, although short, conveyed information directly to Hart—by letting her know that a debt collector sought to speak with her and by providing her with instructions and contact information to return the call. The voicemail also indicated that a debt collector was seeking to speak to her as a part of its efforts to collect a debt. 

Whether it was the debt collector’s first communication with the consumer is significant only in determining whether the debt collector should have given the required disclosures, also known as the “mini Miranda” warning. Here, Credit Control should have provided Hart with the required disclosures. The FDCPA requires the “mini Miranda warning” to be given in the initial communication between a debt collector and consumer. Specifically, this warning requires that the debt collector disclose that he or she is “attempting to collect a debt and that any information obtained will be used for that purpose.” In this case, because the voicemail was not only a communication, but the first communication, Credit Control was required to do just that.” 

Did the Voicemail provide “Meaningful Disclosure?” 

On the second issue presented, the court agreed with Credit Control. The court ruled that Credit Control did not fail to provide meaningful disclosure in voicemails that did not leave a name of the caller. 

Per the opinion: 

“Generally, § 1692d aims to protect consumers from harassment and abuse by unscrupulous debt collectors and subsection (6) prohibits debt collectors from placing calls without “meaningful disclosure of the caller’s identity.” In pertinent part, the FDCPA prohibits debt collectors from: engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, [it] is a violation of this section . . . [to place] telephone calls without meaningful disclosure of the caller’s identity. 

The FDCPA is silent on what constitutes “meaningful disclosure.” We hold that meaningful disclosure does not require the individual caller to reveal her name, and this holding comports with text of the FDCPA. The individual caller here is working on behalf of the debt collection company, which is the actual entity collecting the debt. An individual caller’s name is ancillary to the debt collection company’s name and adds little value to a consumer who seeks to complain about the debt collection company’s behavior. The company is collecting the debt; the caller is merely an arm of the company. Equipped with the knowledge that the call is being placed on behalf of a debt collection company and the company’s name, a consumer has enough information to protect herself under the FDCPA. 

Because the individual callers here disclosed that they were calling on behalf of Credit Control, a debt collection company, Hart was provided with meaningful disclosure, and thus no violation of § 1629d(6) occurred.” 

The Court of Appeals remanded the case back to the district court for further proceedings consistent with their opinion. 

insideARM Perspective 

This is a very interesting case. Litigation over voice messages has been a hotbed of consumer litigation for years. We can now add this case to the long list of voice message cases. 

The message left in the case is what is generally referred to as a “limited content” message. 

In the CFPB's July 2016 “Outline of Proposed Debt Collection Rules” the bureau specifically discussed “limited content” messages. The CFPB indicated that they were considering a proposal that would provide that no information regarding a debt is conveyed — and no FDCPA “communication” occurs — when collectors convey only: (1) the individual debt collector’s name, (2) the consumer’s name, and (3) a toll-free method that the consumer can use to reply to the collector. See the insideARM discussion of this proposal here.

The Credit Control message, while limited, did not contain all of the elements suggested by the CFPB. Additionally, and most important for this court, the Credit Control voicemail message was also the FIRST communication with the consumer. That was an important distinction for the court. 

On the other hand, in light of the Eleventh Circuit discussion on whether the message provided “meaningful disclosure,” this court may come to a different conclusion in the case had Credit Control previously sent an initial letter with the full disclosures required under § 1692e(11).

One final note, the original motion to dismiss was filed before any discovery was completed. Thus,both  the original decision by the district court to dismiss the case and the Court of Appeal's de novo review were made without benefit of a record from Discovery.