District Court (Mass.) Finds V/M Message Left at Debtor’s Former Telephone Number and Former Residence States a Claim under FDCPA

In Travers v. Collecto, Inc., 2013 WL 65452 (D.Mass. 2013), Judge O’Toole found that a voicemail message left for the debtor at a phone number/residence with which he was no longer associated stated a claim under the FDCPA.

EOS does not challenge that the automated messages where communications about a debt made to a third party. Rather, EOS asks this Court to follow the reasoning of Mostiller v. Chase Asset Recovery Corp., 2010 WL 335023 (W.D.N.Y. Jan. 22, 2010). In Mostiller, the court rejected FDCPA third party contact damages based on a voicemail left at the plaintiff’s house that was inadvertently overheard by the plaintiff’s fiancé. Id. at * 5. The court reasoned that; “The FDCPA was intended to protect against deliberate disclosures to third parties as a method of embarrassing the consumer, not to protect against the risk of an inadvertent disclosure that could occur if another person unintentionally overheard the messages left on [plaintiff’s] answering machine.” Id. (internal quotations omitted). Courts that follow this reasoning do not treat the FDCPA as a strict liability statute, unlike some other courts.FN2 The holding in Mostiller, has not been universally accepted. See Berg v. Merchs. Ass’n Collection Div., 586 F.Supp.2d 1336, 1343–44 (S.D.Fla.2008) (denying 12(b)(6) motion based on voice messages left on plaintiff’s voice mail that were overheard by third persons).  [FN2. See Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir.2010) (“The Act ‘is a strict liability statute, and the degree of a defendant’s culpability may only be considered in computing damages’ ”) (internal quotations and citations omitted); LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th Cir.2010) (“The FDCPA does not ordinarily require proof of intentional violation and, as a result, is described by some as a strict liability statute”); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir.2010) (“The FDCPA is a strict liability statute that makes debt collectors liable for violations that are not knowing or intentional.”) (internal quotations and citations omitted).]  While both sides extensively argue the reasoning in the various answering machine cases, the facts of the case presently before this Court does not require delving into that debate. Unlike the situation in Mostiller, EOS did not make phone calls to a number in the exclusive control of the plaintiff and leave messages that were inadvertently overheard by a third party. Instead, automated messages were directed to a number which, according to the plaintiff, was never associated with him, at a residence where he had not resided for eight months, and as a result information regarding the plaintiff’s debt was communicated to the new resident. The use of automated phone calls creates an inherent risk of violating the FDCPA. Foti v. NCO Fin.Sys. Inc., 424 F.Supp.2d 643, 659–60 (S.D.N.Y.2006). EOS took that risk and in doing so created a cognizable claim under 15 U.S.C. § 1692c(b) of the FDCPA.