In Koby v. ARS National Service, Inc, 2010 WL 1438763 (S.D. Cal. March 29, 2010), Judge Houston addressed the applicability of Foti to leaving voicemail messages on a debtor’s answering machine.
Courts have held that not disclosing the above prescribed facts in a message left for the debtor can be a violation of § 1692e(11) [i.e. the mini-Miranda]. See Costa v. National Action Financial Services, 634 F.Supp.2d 1069 (E.D.Cal.2007) (finding a voice mail message stating the caller received a phone call in her office for the plaintiff and asking her to return the call were “communications” within the definition of section 1692e(2)); Hosseinzadeh v. M.R.S. Associates, Inc., 387 F.Supp.2d 1104 (C.D.Cal.2005) (finding messages conveying the fact there was an important matter to attend to and instructions how to do so were “communications” within the meaning of the statute); see also Foti v. NCO Financial Systems, Inc., 424 F.Supp.2d 643 (S.D.N.Y.2006) (finding that a message solely identifying the debt collector as “NCO Financial Systems” was insufficient to satisfy disclosure requirement of § 1692e(11) when the message left for the plaintiff contained “no other suggestion or clue that the correspondence [was] from a debt collector”). ¶ Construing the facts in favor of the Plaintiffs, it is clear the messages left for the Plaintiffs Koby and Supler were left to encourage the Plaintiffs to call ARS. Both messages contained language asking the listener to return the call. Cplt. at ¶ 39. The intention of ARS was to contact Plaintiffs, or be contacted by Plaintiffs, in order to attempt to collect a debt and served no purpose other than encouraging the Plaintiffs to pay their debt. The purpose of the statue to prevent misleading representations in connection with collecting a debt supports a determination that the messages left by ARS are communications within the meaning of the statute. Additionally, the calls which, provided Plaintiff Koby a reference number, and stated there were documents in the caller’s office involving Plaintiff Supler, indirectly conveyed information involving the debts involved and therefore, fall within the definition of a “communication” under the FDCPA. Accordingly, these communications by ARS fall under the purview and restrictions of the FDCPA. ¶ The Court, however, finds the message left for Plaintiff Simmons, which merely included the caller’s name and asked for a return call, does not convey, directly or even indirectly, any information regarding the debt owed. As such, the claim based upon the voicemail message left with Plaintiff Simmons would not permit recovery under section 1692e(11) and Defendant is entitled to judgment as to this claim. ¶ In the messages cited by Plaintiffs, Defendant failed to disclose that: (1) it was attempting to collect a debt; and (2) any information obtained will be used for that purpose. Cplt. at ¶ 39. It is plausible that Defendant has violated § 1692e(11) when its representatives left messages with Plaintiffs Koby and Supler that failed to convey the information required by § 1692e(11). Because these facts, if proved, would permit recovery under the FDCPA, judgment on the pleadings is not appropriate with respect to Plaintiffs’ claims for relief under § 1692e(11) based upon the messages left with Koby and Supler.
Section 1692e(11) is exempt for incorporation into California’s Rosenthal Act, so the first part of this opinion has little relevance to Creditors. (Civ. Code 1788.17) However, the second part of the opinion may be of relevance – relating to 15 U.S.C. § 1692d(6)-Meaningful Disclosure of Identity.
Defendant argues that under § 1692d(6) “meaningful disclosure” simply requires the “identity” of the individual person calling on behalf of the debt collector be disclosed, not necessarily the name of the debt collector or the fact that the person is, in fact, an agent of a debt collector. See Doc. No. 6. Defendant further argues the Court should avoid any interpretation of the meaning of the statute that would implicate serious constitutional issues. Plaintiffs claim the messages left by Defendant failed to give them “meaningful disclosure” of the caller’s identity and they were unable to know who was calling them and why. See Doc. No. 12. Plaintiffs also argue the messages do not implicate the First Amendment. . . . ¶ Although no circuit court, including the Ninth Circuit, has ruled on the issue of what exactly “meaningful disclosure” requires, several district courts have come to a consensus on the proper definition, which this Court finds persuasive. Two factually similar cases speak to the issue of meaningful disclosure involving phone calls placed by a debt collector that do not disclose that the caller is a debt collector. Costa, 634 F.Supp.2d at 1069; Hosseinzadeh, 387 F.Supp.2d at 1104. These district courts have held that meaningful disclosure requires that the caller state his or her name and capacity, and disclose enough information so as not to mislead the recipient as to the purpose of the call. Id. ¶ . . . Here, the messages left on each of the Plaintiffs’ respective voice mails are similar to those in Costa and Hosseinzadeh as none of the messages relay to the listener the nature of the call-to collect a debt-or the caller’s identity as a “debt collector.” See Cplt. at ¶ 39. Accordingly, utilizing the definition of “meaningful disclosure” adopted by the Eastern and Central districts of California, in each situation where ARS failed to disclose that the caller was a debt collector and that the purpose of the call was to collect a debt, ARS failed to meet the standards prescribed by § 1692d(6) of the FDCPA. See accord Foti 424 F.Supp.2d at 643 (holding collector’s identification of itself by name in a pre-recorded message did not satisfy FDCPA’s requirement that it disclose that the communication is from a debt collector). ¶ However, the Defendant contends that should the FDCPA be interpreted such that “meaningful disclosure” requires them to state in a voice mail that ARS is a debt collector and is attempting to collect a debt, there is a potential to expose ARS to liability for third party disclosure under § 1692c(b) should someone other than the debtor overhear the message. See Doc. No. 6. The Defendant further argues that because they may be exposed to liability under this interpretation, this will limit their ability to communicate with a debtor through the means of calling and leaving a voice mail. See Doc. No. 6. The Defendant concludes that this interpretation, in essence, prohibits a form of speech, thus raising constitutional concerns regarding the chilling of valid commercial speech. See Doc. No. 6. ¶ This argument is unconvincing. Nothing in the FDCPA or the Constitution entitles or guarantees a debt collector the right to leave a message on a debtor’s voice mail. See Berg v. Merchants Assn. Collection Div., 586 F.Supp.2d 1336, 1344 (S.D.Fla.2008); Foti, 424 F.Supp.2d at 659.
The district court in Koby certified its decision for appeal to the Ninth Circuit Court of Appeals, finding that its ruling “involves controlling questions of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the Order may materially advance the ultimate termination of the litigation.” (28 U.S.C. section 1292(b)). The district court has certified the following two questions to the Ninth Circuit: (1) Do each of the voice mail messages as alleged in the complaint in this action constitute a ‘communication’ within the meaning of section 1692a(2) of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et. seq., (the “FDCPA”), 15 U.S.C. § 1692, et seq.;” and (2) Do the voice mail messages as alleged in the complaint violate section 1692e(11) and/or section 1692d(6) of the FDCPA?