Sometimes, you’re not paying attention when you’ve dialed your phone and are waiting for someone to pick up. Maybe you’re grooving out to a good song and you don’t notice that the call went to voicemail and that you’ve been humming and singing for a few seconds. While it likely won’t result in an invitation to audition for “American Idol” or “The Voice,” does it count as a violation of the Fair Debt Collection Practices Act if the individual making the call is a collector? In a case that was defended by the team at Malone Frost Martin, a District Court judge in Florida has ruled that it does not and dismissed the suit for lack of standing.
A copy of the ruling in the case of Santiago v. Hunter Warfield can be accessed by clicking here.
A collector employed by the defendant called the plaintiff’s cell phone in response to an unpaid apartment lease debt. The plaintiff did not answer and the call was connected to her voicemail. The collector left a message that lasted four or five seconds and consisted “of the agent humming in a barely audible manner, a three-word phrase that appears to be “[I]n the shadows…” A second call was placed a few minutes later and another voicemail was left, this time identifying the caller as the defendant, that it was a debt collector, and requesting a call back.
The plaintiff filed suit, alleging the first voicemail violated Sections 1692d, 1692e, and 1692f of the FDCPA because it was either harassing, abusive, or oppressive, or unfair and unconscionable, and because it failed to disclose that the call was from a debt collector. The plaintiff claimed to have been upset and felt threatened by the voicemail “because someone with access to her personal information had left the message.” But the plaintiff only told a friend about the message and called a lawyer.
After listening to the voicemail, Judge Tom Barber of the District Court for the District Court for the Middle District of Florida, Tampa Division, admitted the voicemail was “confusing,” but was “simply not a sufficient basis to file a federal lawsuit.” Being “super confused” and “upset” about receiving the voicemail is not enough for the plaintiff to have standing to sue, Judge Barber ruled.
