In Hagler v. Credit World Services, Inc., Judge Hagler found that a debt collector did not violate the FDCPA by leaving a single voicemail message for the debtor.
The facts of this case are few and undisputed. Defendant Credit World Services is a debt collector. On June 11, 2013, Bill Jackson, an employee of defendant, called plaintiff and spoke to him about an outstanding debt. After some discussion, plaintiff said that he would have to call defendant back. Defendant waited about a month without hearing from plaintiff. On July 9, 2013, Jackson called plaintiff again, but plaintiff did not answer. Jackson left plaintiff the following voicemail: “Hi, this message is for Charles. Please call Bill Jackson at 913-362-3950 when you get a chance. My extension is like 281. Thank you.” Plaintiff argues that the July 9, 2013 voicemail violates several provisions of the FDCPA. . . . Plaintiff contends that defendant violated three statutory provisions of the FDCPA because the July 9, 2013 voicemail from defendant: failed to disclose meaningfully the caller’s identity, in violation of 15 U.S.C.; 1692d(6); failed to disclose that a debt collector had left the voicemail, in violation of 15 U.S.C. 1692e(11); and used misleading and deceptive language, in violation of 15 U.S.C. § 1692e. Plaintiff also claims that the voicemail was otherwise deceptive and failed to comply with the provisions of the FDCPA. Plaintiff and defendant filed cross-motions for summary judgment on all four claims.
The District Court granted summary judgment to the Defendant. As to the “meaningful identification” violation under section 1692d(6), the Court found that the debt collector did not give enough information, but a violation of the FDCPA requires more than one call.
Because Jackson failed to provide more than his name, the Court concludes that defendant did not provide “meaningful disclosure” of its identity as a debt collector under § 1692d(6). Accord Galligan v. FMS, Inc., No. 11-2004, 2012 WL 1207214, at *4 (D. Kan. Apr. 11, 2012) (“‘Meaningful disclosure’ requires the [debt collector] to state his or her name, capacity, and to provide enough information to the consumer as to the purpose of the call.”); Torres v. ProCollect, Inc., 865 F. Supp. 2d 1103, 1105 (D. Colo. 2012) (“Thus, the only way for an identity disclosure to be meaningful to a consumer is if it discloses the name of the debt collection company.”); Costa v. Nat’l Action Fin. Servs., 634 F. Supp. 2d 1069, 1075 (E.D. Cal. 2007) (holding that the “defendant necessarily violated 1692d(6) when [the debt collector] failed to disclose her identity as a debt collector and the nature of the call when she left the messages on plaintiff’s voice mail”). Next, the Court considers whether a single voicemail can sustain a § 1692d(6) violation. Section 1692d(6) prohibits “the placement of telephone calls without meaningful disclosure.” Several district courts have held that the use of the plural “calls” means that a debt collector must make more than one call to violate the section. E.g., Thorne v. Accounts Receivable Mgmt., Inc., No. 11-22290, 2012 WL 3108662, at *8 (S.D. Fla. July 24, 2012); Jordan v. ER Solutions, Inc., 900 F. Supp. 2d 1323, 1326 (S.D. Fla. 2012); Sanford v. Portfolio Recovery Assocs., LLC, No. 12-11526, 2013 WL 3798285, at *19 (E.D. Mich. July 22, 2013). Here, defendant made only one phone call—the July 9, 2013 voicemail—that plaintiff alleges violated § 1692d(6). After reviewing the text of § 1692d, the Court agrees with the holding of the district court cases cited in this paragraph and concludes that a § 1692d(6) violation requires more than one phone call.
As to the allegation that the debt collector failed to provide the “mini-Miranda”, the Court found that the voicemail was not a debt collection “communication”.
Whatever the rule elsewhere, our Circuit takes a narrower view and it controls the outcome here. . . Thus, in order to “convey information regarding a debt,” a message must “expressly reference debt” or the recipient must be able to infer that the message involved a debt. Id. The voicemail at issue here does neither. First, the voicemail left by Jackson contains only the caller’s name and number and requests a call back. It therefore does not “expressly reference debt.” Second, plaintiff concedes he did not “infer” any debt from the voicemail. In an affidavit attached as an exhibit to plaintiff’s reply to defendant’s response to his motion for summary judgment (Doc. 34-1 at 1), plaintiff admits, “I did not know that this was a call from a debt collector or in regards to the collection of a debt.” As a result, plaintiff did not infer that the voicemail involved a debt.
Finally, the District Court found that the voicemail message was not misleading.
Setting aside plaintiff’s attempt to circumvent § 1692e(11), however, Jackson’s voicemail was not false, deceptive, or misleading. “False” means “not according with truth or fact.” Merriam-Webster Dictionary, available at www.merriam-webster.com/dictionary. But nothing Jackson said in the voicemail was untrue. He merely conveyed his name, phone number, and his desire for plaintiff to call him back. “Deceptive” and “misleading” mean “giving an impression different from the true one.” Id. Here, there is no evidence that Jackson intended to convey that he was someone other than a debt collector; indeed, Jackson conveyed nothing at all about his job or the reason for his call. After viewing defendant’s voicemail objectively from the perspective of the least sophisticated consumer, the Court finds that no reasonable jury could conclude that defendant’s voicemail was false, deceptive, or misleading. As a result, the Court grants summary judgment for defendant on plaintiff’s § 1692e claim.