MINNEAPOLIS — ACA International, the Association of Credit
and Collection Professionals, recapped why two U.S. District Courts examined
messages left for consumers and third parties and found the messages were not
communications under the Fair Debt Collection Practices Act.

"The issue of leaving messages for consumers continues to
receive scrutiny in the courts," ACA officials said. "While most courts to rule
on this issue have found that messages are ‘communications' as the term is
defined under the FDCPA, there are occasional outliers."

To give a point of reference, ACA International recollected
that § 803(2) of the FDCPA defines a communication as "the conveying of
information regarding a debt directly or indirectly to any person through any
medium."

The debt collection organization highlighted the first case
took up by the district court.

Brody v. Genpact Services, LLC, No. 13-cv-11125, 2013 WL
5925168, — F. Supp. 2d — (E.D. Mich. Oct. 28, 2013), stemmed from a voice
mail message left for the consumer, which did not disclose the mini-Miranda.

The message stated as follows:

"This message is for Theresa Brody. My name is Kevin Archer
calling from Genpact. Call me back at (866) 544-0753. Again, (866) 544-0753 and
my name is Kevin Archer and I am calling from Genpact Services. Please call me
back. Have a great day."

ACA International recapped that the consumer alleged
violations of §§ 807(10) and 807(11).

"In examining the claims, the court observed that the
message never directly referenced the collection of a debt or the debt itself,"
officials said. "Therefore, the court reasoned its ruling must hinge upon the
narrow question of whether the debt collector's message ‘indirectly' conveyed
information regarding the consumer's alleged debt."

Citing Marx v. General Revenue Corp., 668 F.3d 1174, 1178
(10th Cir. 2011), ACA International indicated the court noted the message
divulged only one piece of non-generic information, namely, the identity of the
debt collector's employer.

"The court concluded the name ‘Genpact,' by itself, could
not reasonably be construed to imply a debt," officials said.

Although, the consumer cited cases such as Edwards v.
Niagara Credit Solutions, Inc., 584 F.3d 1350, 1351 (11th Cir. 2009) and Foti
v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643, 648 (S.D.N.Y.2006), to
show that messages similar to the one left above are communications, ACA
International mentioned the court found those cases to be factually distinct.

"Though the court did not clearly articulate its reasoning
in rejecting comparison to Foti and Edwards, it did note parenthetically that
the message used in Foti mentioned the consumer's file number and the message
in Edwards mentioned a ‘personal business matter,' whereas the message in the
instant case did not make such references," officials said.

"Based on this reasoning, the court ruled in favor of the
debt collector on both claims, finding the message was not a communication,"
they went on to say.

ACA International then recapped the other recent district
court case.

In Evankavitch v. Green Tree Servicing, LLC, No. 3:12cv2564,
2013 WL 5719253, — F. Supp. 2d — (M.D. Pa. Oct. 21, 2013), official
recalled that the court addressed messages left with a third party.

"In this case, a debt collector left a message for the
consumer with the consumer's neighbor that did not disclose that the message
was from a debt collector, and left messages with third parties requesting the
consumer return the debt collector's call," officials said.

ACA International indicated the consumer alleged the
messages violated §§ 807(11) and 805(b) of the FDCPA.

"The consumer also alleged that the act of making multiple
calls to third parties (the consumer's son, daughter and neighbor) violated the
FDCPA," officials added.

ACA International recapped that the court first examined the
messages left with third parties requesting a call back.

"Though no transcript of the messages at issue appeared in
the court's opinion, the court examined other cases that dealt with messages
left with consumers as well as messages left with third parties," officials
said.

"The court observed that other courts that had ruled on
these issues had done so based on the actual content of the messages," they
continued. "The court further opined there was no blanket rule stating that
whenever a consumer is asked in a message to return a call, the message is
automatically deemed a communication under the FDCPA.

"In this instance, the court observed that the messages left
with third parties simply requested the consumer return the call and conveyed
no information whatsoever about the debt, and therefore, the messages were not
communications under the act," ACA International went on to say.

Regarding the claim that the message left with the
consumer's neighbor omitted the fact the call was from a debt collector in
violation of § 807(11), the debt collection organization explained the court
likewise concluded the message did not convey information about a debt, and
therefore, the message was not a communication under the act.

"Finally, as to whether multiple calls to third parties
violated the FDCPA, the court concluded there were fact issues as to whether
the calls were truly made for the sole purpose of obtaining location
information," officials said.

"Based on the above analysis, the court denied the
consumer's motion for summary judgment, finding as a matter of law that the
messages at issue were not communications under the act, but that fact issues
remained as to whether multiple calls to third parties violated the act," they
went on to say.

ACA International wrapped up its latest court case analysis
by offering more clarity on what the decisions mean to recovery enterprises.

"While both of the cases above are positive rulings for the
debt collection industry on the issue of messages, it remains to be seen
whether the reasoning will be adopted by other courts especially given existing
rulings on leaving messages," officials said.

"ACA members are encouraged to review ACA's Fastfax on
leaving messages for further analysis on this issue," they went on to say.

Those ACA International materials can be found at its
website at www.acainternational.org.

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