Debt Collectors Violate the FDCPA

Fair Debt Collection Practices

Debt Collectors Violate the FDCPA By Asking Friends, Family, And Neighbors To Give You A Message According to Court

When debt collectors get someone, and sometimes anyone, to answer the phone, they want “debtors” to call them back.  It may not be uncommon for a friend visiting you to answer your phone or for debt collectors to get the phone numbers of one of your family members or neighbors through a process of searching for people called “skip tracing” (for example, think of tools like the paid version of Whitepages.com or other “people finder” services).  The Fair Debt Collection Act (FDCPA) governs debt collectors’ “communications” as well as who they may communicate with and how.

In general, it is a violation of the FDCPA for debt collectors to disclose the existence of one person’s debt to another person (with an exception in certain states for spouses).  There are also certain “disclosures” that the FDCPA requires that debt collectors give during a “communication” attempting to collect a debt, and these disclosures make clear that the purpose of the call (or other “communication”) if to collect a debt.  See the problem here?

Let’s discuss an example.

If a friend is at your house and answers the phone when a debt collector is calling, the debt collector cannot reveal the existence of a debt to your friend.  Same thing if a collector calls your neighbor or a family member.  Also, if a debt collector asks for you but wants to leave a phone number where you can call them back after your friend, family member, etc. tells the collector that you’re not able to take a call, a majority of courts have ruled that this act by the debt collector qualifies as a “communication” in an attempt to collect a debt.

But guess what – if they did not give the disclosures required by the FDCPA, the debt collector has violated the FDCPA.  And if the collector did give the disclosure that “this is an attempt to collector a debt and any information obtained will be used for that purpose,” then chances are that the collector just revealed the existence of an alleged debt to the person that answered your phone, which could be extremely embarrassing…and then some.

(Imagine if your young child, nephew, or niece got that message – what issues could that cause in your family?)  In such situations, it would seem much more consistent with people’s rights under the FDCPA for debt collectors to simply end the call and say they’d “try back later” rather than force themselves into a situation were they’re likely to violate someone’s consumer protection rights.

Concluding.

Given the requirements of the FDCPA, one might think that a debt collector would know better than to ask someone that answers a call who is not the “alleged debtor” to give the collector’s number to the alleged debtor or even ask for a call back.  It seems like it’s a “no-win” for them–unless, of course, people like you don’t know your rights under the FDCPA).

Yet, it appears the some debt collectors continue to violate the FDCPA in this manner.  Recently, on December 7, 2016, the United States Court of Appeals for the Second Circuit denied a debt collectors request for an “Interlocutory Appeal” in the case of Halberstam v. Global Credit and Collection Corp. (U.S. District Court, ED, NY, 15-cv-5696 (BMC), (Second Circuit Court of Appeals Case No. 16-1563).  The Halberstam case involved a ruling the the debt collector at issue violated the FDCPA – the debt collector, whose telephone call to a debtor was answered by a third party, left his name and number for the debtor to return the call, without disclosing that he was a debt collector (which, as explained above, also likely would have been a violation of the FDCPA).

Consistent with the majority view taken by other courts that have addressed the same and similar issues, the trial-level court granted summary judgement for plaintiff and finding the debt collector in the case had violated the FDCPA.