The federal court for the Eastern District of New York granted summary judgment in favor of a plaintiff who alleged the defendant debt collector violated the FDCPA by asking a third party to have the plaintiff return its call.
In Herschel Halberstrom v. Global Credit Collection Corp., Case No. 15-cv-5696 (E.D.N.Y. Jan. 12, 2016), the plaintiff alleged Global Credit Collection ("GCI") called his home regarding a debt. When a third party informed GCI's rep that the plaintiff was not available and asked if he could take a message, the rep provided his name and number, stated that the call regarded a "personal business matter," and asked that the plaintiff call back.
The Honorable Brian Cogan ruled GCI violated the FDCPA by communicating with a third party about the plaintiff's debt beyond what the Act permits and by failing to provide required disclosures to the debtor.
Judge Cogan based the decision on §1692c(b) which forbids a debt collector from communicating with third parties (absent the debtor's consent or a court's order or judgment) unless the communication is strictly limited to confirming location information about the debtor. Judge Cogan noted that "[n]othing [in §1692c(b)] permits the debt collector to leave a response with a third party that will induce the debtor to call him back."
The court also rejected the defendant's argument that the call was not a "communication in connection with the collection of a debt." Even though GCI's rep had merely provided callback information, that information would facilitate GCI's collection of the debt and therefore required disclosure that the call was from a debt collector.
Finally, Judge Cogan rejected the defendant's argument that his ruling would force debt collectors to make more numerous and frequent calls, potentially exposing them to harassment suits. He noted that "the case law is quite generous in the number of calls tolerated before harassment will be found" and concluded that debt collectors must determine how many calls to place "all the time when they have difficulty reaching the debtor on the telephone."
The case is not ground-breaking. The majority of courts having ruled on the issue have found that conversations with third parties are "communications" subject to the FDCPA, whether or not the debt collector mentions the debt. Halberstrom is noteworthy because it further clarifies what a debt collector must do once informed that the debtor is not available -- thank the third party and state that he will call back later.► Back to News & Resources