Law Prof. Raises Issues With Limited Content Message Component of Proposed Debt Collection Rule

A law professor is raising some concerns and issues with the limited content message that is part of the proposed debt collection rule from the Consumer Financial Protection Bureau, saying that it will be easy to guess that the message is coming from a debt collector if the collector follows the script proposed by the CFPB.

The industry supports the idea of a limited content message because it provides a safe harbor when speaking with individuals or leaving voicemails for debtors. If sticking to the script proposed by the CFPB, the limited content message would not fall under the purview of the Fair Debt Collection Practices Act, meaning that additional disclosures would not have to be made and that consumers would not be able to sue for issues related to the messages.

There are two types of limited content messages that collectors could leave. One would be something like this: “This is Robin Smith calling for Sam Jones. Sam, please contact me at 1-800-555-1212.” The other is, “Hi, this message is for Sam Jones. Sam, this is Robin Smith. I’m calling to discuss an account. It is 4:15 p.m. on Wednesday, September 1. You can reach me or, Jordan Johnson, at 1-800-555-1212 today until 6:00 p.m. eastern, or weekdays from 8:00 a.m. to 6:00 p.m. eastern.”

Jeff Sovern, a professor at the St. John’s University School of Law, who focuses on issues related to consumer law, thinks that both messages will make it obvious to the recipients that they are being called by a debt collector.

To illustrate his point, Sovern uses an example of his own:

Suppose a collector calls to speak to a consumer, let’s call him Stan, and someone else, call her Marina, answers. The collector delivers the message: “Please have Stan call me, Ryan, at [number].” So far there’s not a problem. But what happens when Marina asks, as people taking messages often do, “What’s this about?” Ryan could reply that it’s about an account, which is permitted under the proposal. But of course Marina is then likely to ask an account with whom.  And Ryan can’t answer because if Ryan goes beyond the items listed in the definition of a limited-content message, he’s no longer delivering a limited-content message, and anything he says risks violating the FDCPA.

So maybe Ryan doesn’t want to use the word “account” to avoid getting the question about whom the account is with.  Should Ryan answer that it’s a “personal business matter”?  That choice has two problems. First, it violates the prohibition on saying anything not listed in the definition of limited-content messages.  Second, that was the language the collector used in Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643 (S.D.N.Y. 2006), the case that created the so-called Foti problem.  Not only did Foti say that the message left there violated the FDCPA (though some courts have not agreed as to similar messages), but the Bureau’s decision not to include such language within the limited-content messages safe harbor when the Bureau proposal cited Foti indicates that the Bureau is not comfortable with limited-content messages being left that include that language. What if Ryan says it’s private or some other such formulation? I don’t think that’s different enough from “personal business matter” to give me confidence that it will work. Any debt collector saying the matter is private risks paying for litigation to determine if the message is no longer a limited-content message.

Another option for Ryan is to say “I can’t answer any questions.” But again, who knows if that will take the message out of being a limited-content message? Even saying that is saying something. Still another option is for Ryan to hang up quickly when the consumer asks a question. That will probably work once or even twice per debtor.  But if Ryan calls a third time, and hangs up on the same person taking the message a third time, is that harassment? Harassment also violates the FDCPA. Maybe Ryan could try to hang up quickly before the person taking the call gets to ask a question, but that’s going to be hard to time when Ryan probably wants to verify that the person has written down the phone number correctly. At the end of the day, debt collectors might be better off not leaving messages with live people. Otherwise, they risk funding a law suit to defend their conduct, and maybe losing it.

Making the likelihood of identifying that one of the limited content messages is coming from a collector is the fact that most people don’t leave voicemails anymore, Sovern says. Getting a voicemail that says it is being left in regards to an “account” is a clear indicator that the message is in reference to a debt. The sheer number of individuals who have debts in collection mean that they will likely be receiving a number of voicemails using the limited content message and if they hear someone else receive a similar message, they will know what the message is in reference to, Sovern says.

The way that people treat voicemail today has Sovern thinking that the “ship of phone messages has sailed.”