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The recent decision in Hart v. Credit Control, LLC, confirmed that a voicemail is a communication under the FDCPA. 2017 U.S. App. LEXIS 18375 (11th Cir. Sept 22, 2017). You may be thinking “well, of course… a communication is a communication is a communication.” But the fact was, until this decision, that some, in fact many, courts deemed simple voicemails NOT communications because they did not disclose any more information than would be gained from a hangup. See, e.g., Zortman v, J.C. Christensen & Assocs., Inc. 870 F. Supp. 2d 694 (D. Minn. 2012).
For reference, the voicemail in question in Hart was “This is Credit Control calling with a message. This call is from a debt collector. Please call us at 866-784-1160. Thank you.” (at p. 2).
The ramifications of this decision run deep. See, if a voicemail is not deemed a communication, then disclosures are not required. Therefore, a simple voicemail may merely identify the caller, leave a callback number, and that’s that. If voicemails are deemed communications, then the first such communication must have the appropriate disclosure, and any following communications must have some form of disclosure as well. An allowable voicemail, then, becomes one that necessarily provides significant information about the fact that the call is coming from a debt collector and can therefore run afoul of the FDCPA regulations that prevent third party disclosures. And therein lies the catch.
The Hart case, as well as the recent Supreme Court case Henson v. Santander Consumer USA, Inc. (2017) 137 S.Ct. 1718, (a decision that held debt buyers are not subject to the FDCPA) are just the recent decisions that remind us how important it is to stay on top of changes in the case law as well as the statutes. Just remember that today’s FDCPA is not yesterday’s FDCPA.