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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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