In Zortman v. J.C. Christensen & Associates, Inc., 2011 WL 1576475 (D.Minn. 2011), Judge Ericksen discussed the Foti chronology, and held that an FDCPA claim could be stated where a third party intercepts a voicemail message – even the post-Foti semi-anonymous ones — if the debt collector had reason to suspect that someone other than the debtor would hear it. The facts were that the debtor incurred a credit card debt. Both Zortman’s home and cellular voicemail systems have automated outgoing messages that do not identify occupants or potential listeners. Zortman alleges that JCC left messages on both voicemail systems “disclosing Plaintiff’s debt” and that the messages were heard by Zortman’s children. Zortman argues that this violated the FDCPA and caused Zortman to suffer emotional distress, embarrassment, and humiliation. Judge Ericksen discussed the Foti conundrum as follows:
Beginning by the early 2000s, district courts from around the country began to hold that debt collectors could violate §§ 1692d(6) and 1692e(11) by leaving voicemail or answering machine messages without the required disclosures. One of these deci-sions was Foti, which was followed by a recent District of Minnesota case on which JCC primarily relies, Mark v. J.C. Christensen & Associates, Inc., Civil No. 09–100 ADM/SRN, 2009 WL 2407700 (D.Minn. Aug. 4, 2009). Until fairly recently, some debt collectors, including JCC, followed the practice of leaving semi-anonymous messages for debtors that only stated the caller’s first name and did not disclose the name of the company or the nature of the call. Apparently, this practice was adopted out of fear that a message with the §§ 1692d(6) and 1692e(11) disclosures would violate § 1692c(b) if overheard by a third party. In Mark, the plaintiff sued JCC and claimed that semi-anonymous messages on her answering machine violated §§ 1692d(6) and 1692e(11). For example, JCC left a message for the Mark plaintiff that stated: “Hi Cindy, this is Eva, can you call me quick when you get this message. My office number is 866–565–1399.” Mark, 2009 WL 2407700, at * 1. JCC argued that messages of this type do not violate the FDCPA because they (1) are not communications; (2) are not harassing, abusive, false, deceptive, or misleading; and (3) are not material. After rejecting these arguments, the Mark court addressed JCC’s constitutionality argument. If the semi-anonymous messages violated §§ 1692d(6) and 1692e(11), JCC argued, then debt collectors would be prevented from leaving messages on answering machines and voicemail systems because compliance with §§ 1692d(6) and 1692e(11) risks violating § 1692c(b). JCC argued that such a construction amounted to an unconstitutional restriction of speech. The Mark court rejected this argument and minimized the risk of violating § 1692c(b). . . ¶ . . . .To the extent that JCC argues that the FTC commentary is correct and that § 1692c(b) violations require a reason-to-anticipate state of mind, that argument does not support dismissal of this complaint. At least one court, distinguishing Berg, found no violation of a state law similar to § 1692c(b) because the debt collector had no reason to anticipate that a third party would hear the disclosures. … But here, the pleadings contain allegations sufficient to allow the conclusion that JCC violated § 1692c(b) regardless of whether § 1692c(b) requires “reason to anticipate” or some other, similar state of mind. Thus, the Court need not address whether such a state of mind requirement is consistent with the strict liability nature of the FDCPA and its bona fide error defense, or what that state of mind would be (e.g., “reason to anticipate” or “substantial certainty”). JCC left messages on systems associated with two numbers. Neither voicemail system identified who might listen to messages left on the systems. Under these circumstances, the pleadings allow the conclusion that JCC had reason to expect that someone other than Zortman would hear the voicemail messages sufficient to satisfy any state of mind requirement that may (or may not) be imposed by § 1692c(b).