In Pasquale v. Law Offices of Nelson & Kennard, 2013 WL 1618020 (N.D.Cal. 2013), Judge Spero held that a debt collection law firm violated the FDCPA by failing to identify in subsequent voicemail messages to a debtor that it was a debt collector under 15 USC 1692e(11), but that its failure to do so was entitled to protection under the bona fide error rule.
Nelson & Kennard seeks summary judgment on Pasquale’s FDCPA claim and her Rosenthal Act claim (which depends on the FDCPA claim) on the ground that it was not required under § 1692e(11) to state in its messages that it was a debt collector because the messages were “follow-up” messages and therefore do not constitute “communications” under the FDCPA. Motion at 9–14. According to Defendant, whether a violation occurs is based on an objective inquiry as to whether the ‘least sophisticated debtor would likely be misled by a communication.’ “ Id. at 9–10 (citing Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir.2010)). That standard is not met, Defendant contends, under the circumstances of this case, where Pasquale had actual knowledge of the identity of the caller and the purpose of the calls. Id. at 11 (citing Reed v. Global Acceptance Credit Co., 2008 WL 3330165 (N.D.Cal. Aug.12, 2008)). . . .According to Defendant, these cases support the conclusion that it would serve no useful purpose to require further disclosures in Defendant’s telephone messages because Pasquale was already aware that Nelson & Kennard was a debt collector attempting to collect a debt. Id. at 14. ¶ . . . This Court respectfully declines to follow the reasoning in Reed because it finds that Pressley is no longer good law. See Schwarm v. Craighead, 552 F.Supp.2d 1056, 1081–1082 (E.D.Cal., 2008). In Schwarm, the court found that the holding in Pressley was superseded by a change in § 1692e(11) distinguishing between initial and subsequent communications. . . ¶ Because the Court finds that the voicemail messages at issue in this case are subsequent communications that must meet the requirements of § 1692e(11), Nelson & Kennard is not entitled to summary judgment on this question.
But, the Court found that the defendant was entitled to rely on the bona fide error defense, explaining:
Here, Nelson & Kennard has offered evidence showing that: 1) it trains its account representatives to start all subsequent telephone calls with debtors with disclosure that the call is from a debt collector; 2) it gives its account representatives scripts with specific language to be used in telephone communications, including the disclosure that the call is from a debt collector; 3) it reviews recorded telephone calls on a regular basis to ensure compliance; and 4) the account representatives who left the telephone messages had been tested recently as to the disclosures required for telephone calls placed to debtors. This evidence is sufficient to make a prima facie case, based on a preponderance of the evidence, that the failure to indicate that the voice mail messages were coming from a debt collector was unintentional and occurred despite Nelson & Kennard’s maintenance of proce-dures reasonably adapted to avoid such error. Pasquale did not rebut that showing with any evidence of her own. The Court finds that there is no evidence in the record from which a jury could reasonably conclude that the omission was anything but a bona fide error.