Cell Phone’s Visible Transposition of Voice Message to Text is Not Third Party Disclosure According to District of New Jersey

Many cell phones have the ability to transpose voice messages into text allowing quick review of the message without the need to take the time to listen to it. In Nelson v. Receivables Outsourcing, LLC, No. 1:17-cv-11543 (D.N.J. Aug. 14, 2018), the District of New Jersey recently reviewed whether such a voice-to-text transposition qualifies as third party disclosure if it appears on the face of a consumer’s cell phone. According to the court, this alone is insufficient for an Fair Debt Collection Practices Act (FDCPA) claim to survive a motion to dismiss.

Factual and Procedural Background

Plaintiff incurred a debt that the creditor placed with Receivables Outsourcing, LLC for collection. While attempting to collect this debt, Receivables Outsourcing left a Foti voice message on plaintiff’s cell phone. Plaintiff’s phone transposed this voice message into text.

Plaintiff filed a lawsuit alleging, among other things, that the transposed message appeared on the face of his phone in such a way that his adult children and other third parties could read it, thus violating the FDCPA. Receivables Outsourcing filed a motion to dismiss this claim.

The Decision

Noting that the Third Circuit has not yet addressed this issue, the court stated that the Third Circuit has “generally declined to impose liability where a communication is directed specifically at the debtor.” The court went on to cite several Third Circuit cases that found no FDCPA violations in situations where a letter was addressed to a consumer but mailed to the wrong address, even if such a letter was opened by someone other than the consumer.

The court stated:

The case here is even clearer than the cases of the for-your-eyes-only letters: unlike the delivery of letters that could be opened and read by third parties, Plaintiff controls his own cell phone, and has not pleaded that Defendant (or anyone else) controls it instead. Whether overheard or textualized, the voice mails on his phone are within his control. Defendant did not communicate with a third party; it communicated with Plaintiff, whose phone—an instrumentality in his possession, as implicitly acknowledged by the pleadings—was used to convey the message to other people. As such, Plaintiff fails to allege that Defendant communicated with a third party, and his claim under § 1692b(c) is dismissed.

insideARM Perspective

This was one of many issues reviewed by the court in this decision; the ruling on third party disclosure was located deep within the decision. 

With the ever-changing landscape of communication technology, debt collectors find themselves constantly attempting to navigate their way around how this technology interplays with the FDCPA’s strict rules against third party disclosure. While voice-to-text transposition is not a novel function, the underlying reasoning of this decision is applicable in a wider context. If, as the court reasoned, a visible voice-to-text transposition on a cell phone is not third party disclosure if a consumer has sole control of his phone, then this opens the path -- or at least lays the first paving stone -- for more modern technologies such as enhanced caller displays.