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"Hi, you’ve reached voicemail.  If you are my mom, press one.  If you are my attorney, press two.  If you are a debt collector, please hang up and call me 200 times.  I’ll get back to you with a lawsuit as soon as possible.  Thank you; have a nice day!"

If voicemail’s been pushing your buttons, we’ve got a case for you!  The E.D. New York recently stated the obvious: “The FDCPA is clearly out of touch with modern communication technology.”  The FDCPA was passed in 1977 – years before voicemail was even invented!  The court went on to say leaving voicemail is not an abusive practice and it’s much better than the alternative – mysterious hang up calls.

As we all know, the statute creates a “Catch 22” by simultaneously requiring collectors to identify themselves as debt collectors attempting to collect a debt and prohibiting collectors from disclosing this information to third parties.  See § 1692e(11) and § 1692c(b).  Since a collector has no way of knowing who will listen to the voicemail, the choice is leave a voicemail and risk violating the FDCPA, or make numerous calls ending in hang-ups (also potentially violating the FDCPA). 

On Nov. 12, 2014, the E.D. New York brought some common sense to the table in Zweigenhaft v. Receivables Performance Management.  In Zweigenhaft, the collector called the debtor’s home phone and left a simple voicemail message: “We have an important message from RPM.  This is a call from a debt collector.  Please call 1 (866) 212-7408.”  The debtor’s son heard the message and called the collector back.  The collector confirmed he was calling from debtor’s number, then asked “Are you Abra Zweigenhaft?”  When the son replied “no,” the collector ended the call with a promise to remove the number.  The debtor then sued, arguing the information in the voicemail and conversation combined to create a prohibited 3^rd party communication that he owed a debt.  The court disagreed.

Relying on Zortman, the court found the combination too attenuated to create an FDCPA violation.  The court concluded the collector “acted with care and caution to protect Mr. Zweigenhaft’s privacy, while availing itself of widely used technology to contact him.  It defies common sense and the purpose of the FDCPA to categorize its actions as violating the statute.”