On November 13, the U.S. District Court for the Eastern District of New York ruled that a debt collector’s voicemail message did not violate the Fair Debt Collection Practices Act when it never mentioned that plaintiff owed a debt or conveyed any information about the debt, despite being overheard by the plaintiff’s son.  In Zweigenhaft v. Receivables Performance Mgmt., LLC, 2014 U.S. Dist. LEXIS 160441 (E.D.N.Y. Nov. 13, 2014), in a somewhat surprising decision – particularly since the same court decided the landmark, pro-consumer Foti case in 2006 – the court held that a voicemail message containing the caller’s name and identifying the caller as a debt collector with “an important message” (i.e., the Zortman message) was not a “communication” under the FDCPA.

Factual Background

The defendant left a voicemail message on the plaintiff’s home phone and identified itself as a debt collector.  The plaintiff’s son heard the message and returned the call.  The collector’s representative simply asked if he was “Abra Zweigenhaft” (the plaintiff’s name), then ended the call appropriately.  Mr. Zweigenhaft later filed suit, claiming that the voicemail message and phone conversation violated the FDCPA’s prohibition on third-party communications.  See 15 U.S.C. § 1692c(b).

The Ruling

The court took a refreshing, practical approach to the “paradox” presented by the FDCPA’s conflicting voicemail provisions, which require adequate disclosure of a collector’s identity in all communications with consumers (§ 1692d(6), e(11)), while also prohibiting third-party disclosure of a debt (§ 1692c(b)).  In relevant part, the court stated:

To hold that RPM’s actions violated the statute would place an undue restriction on an ethical debt collector in light of our society’s common use of communication technology.  RPM left Mr. Zweigenhaft one voicemail message, providing the minimum amount of information to remain compliant with the FDCPA and protect his privacy.  See 15 U.S.C. § 1692d(6), e(11).  As for the follow-up telephone conversation (which Mr. Zweigenhaft’s son initiated), the RPM representative only mentioned Mr. Zweigenhaft’s name after verifying that someone was calling from his number; and as soon as she learned that Abra Zweigenhaft was not the caller, she volunteered to take the number off RPM’s list and wished him a good day.  She never mentioned Mr. Zweigenhaft owed a debt, never disclosed information about any debt, and an audio review of the conversation shows that she was thoroughly professional and courteous.

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It is not for this Court to delineate the specific requirements debt collectors must adhere to when utilizing voicemail technology.  But here, RPM 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. Zweigenhaft, 2014 U.S. Dist. LEXIS 160441, at *9-11.

What does this mean?

The Zweigenhaft decision may be an indication that courts are turning the corner on the FDCPA’s voicemail paradox.  The only Court of Appeal to address the underlying issue of an FDCPA “communication” (the Tenth Circuit in Marx v. Gen. Revenue Corp., 668 F.3d 1174 (10th Cir. 2011)) ruled in the collector’s favor.  It is too early to tell if Zweigenhaft will be adopted within the Second Circuit or by other courts, but its common sense approach to this issue is certainly refreshing for the debt collection industry.  Until more Courts of Appeals directly address this issue, Zweigenhaft alone will not chill the number of plaintiffs’ attorneys bringing these types of claims, particularly where courts have taken a less practical approach.