FDCPA Ruling in Potential Class Action Takes a Step Back on Voicemails

After a string of debt industry victories claiming violations of the FDCPA in voice messages, a collection agency in South Carolina last month was handed a defeat by a federal judge for failing to properly identify itself in a voicemail. The judge used the Foti decision in her opinion on the case.

In Chatman v. GC Services, the consumer plaintiff alleged that the debt collection agency violated sections 1692d(6) and 1692e(11) of the FDCPA by not disclosing that two communications were from a debt collector and for the purposes of debt collection. The plaintiff is also trying to get class action certification for the suit.

In May 2013, Chatman received two voicemails on her cell phone from debt collectors working for GC Services. The two messages, while from different collectors, were remarkably similar in content:

“This message is intended for Kim Chatman. My name is Olivia [last name inaudible]. It is important for you to return my call. My number is 866-862-2789.”

Chatman’s main complaint is that she did not know who the messages were from, therefore she was not compelled to return the calls.

GC Services argued that the voicemails were not communications under the FDCPA since they did not convey any information about the debt. Furthermore, the company said that the calls were for location purposes.

The ARM firm offered as one precedent Zortman v. J.C. Christensen & Associates, a case that was successfully defended that saw similar language used in a voicemail. But District Judge Cameron Currie noted that the Zortman case was one of third party disclosure, since the consumers’ children heard the voicemail in question.

Instead, Currie relied more on Foti, writing, “This court declines to follow the minority line of cases relied on by GC and, instead, adopts the majority view, which construes the FDCPA’s definition of ‘communication’ to encompass voicemail messages left for the consumer-debtor, even if nothing in those messages refers to a debt.” Most pointedly, Currie cited a Foti-dependent Circuit Court opinion when discussing the potential for a Catch-22 in leaving voicemails for debtors.

The Circuit panel in Edwards v. Niagara Credit Solutions wrote plainly that the FDCPA “does not guarantee a debt collector the right to leave answering machine messages.”

Judge Currie granted Chatman’s motion for summary judgment and remanded the case for further proceedings, including the possibility of the case being certified as a class action. Briefs on that matter are due in early 2015.

The Chatman decision came only a couple of weeks after a very different ruling in a very similar case.

In Hagler v. Credit World Services, a district judge in Kansas ruled that a nearly identical voicemail left on a consumer’s phone did not violate the FDCPA. Importantly, that case involved only one message, where Chatman involved at least two. Still, the language used in the messages were extremely similar and the judge in the Hagler case specifically ruled that the message was not a communication under the FDCPA.