“Dead Air” Voicemail Message Does Not Violate The Fdcpa

Debt collectors are required to abide by certain rules, including those set forth in the Fair Debt Collection Practices Act (FDCPA), when pursuing collections for consumer debt. The FDCPA was created to safeguard consumers against abusive practices in the collection of consumer debts, to promote fair collections, and to provide consumers an opportunity to dispute debts. Among other things, the FDCPA defines consumers’ rights in this regard and provides for penalties and remedies for any violations.In a recent Texas case, Plaintiff, Brenda Garza, filed a lawsuit against a debt collection agency, MRS Associates, Inc., alleging that the collector had violated the FDCPA, as well as the Texas Debt Collection Act, by leaving a voicemail on her phone with no actual message. Garza claimed that in doing so, MRS Associates, Inc., did not identify its name and did not disclose the fact that it was a debt collector, as required under the FDCPA.U.S. District Judge Gray H. Miller recently dismissed the case, stating in his written opinion, “As alleged in Garza’s complaint, the facts of this dispute are simple and can be recounted in one sentence. On January 20, 2012 at 4:44 p.m., MRS Associates, Inc., a debt collection agency, telephoned Garza and left a twenty-second voicemail consisting only of “dead air” on Garza’s answering machine.” The Judge reasoned that the voicemail at issue was the legal equivalent of a missed call, which prior case law has shown does not violate the FDCPA. “In short, persuasive case law supports the idea that a voicemail is a communication only when it conveys more information than could be gathered from a missed call,” wrote Miller. “Silence does not meet this standard. Accordingly, based on the lack of a communication and because disclosure is not required on a blank voicemail as discussed above, plaintiff’s claim must fail.”While it seems no violation occurred in this instance, consumers should be aware of other potential Fair Debt Collection Practices Act violations, and prohibited collection efforts, such as the following:Contacting consumers by telephone outside of the hours of 8:00 a.m. to 9:00 p.m. local time;Communicating with consumers in any way after receiving notice from the consumer that he or she requests no further communications;Causing a telephone to ring repeatedly or continuously for the purpose of annoying or harassing the consumer;Communicating with consumers at their place of employment after having been advised that this is unacceptable or prohibited by the employer;Contacting consumers known to be represented by an attorney;Leaving a voicemail message without identifying the company name; andLeaving a voicemail message without saying the communication is from a debt collector.If a collector has harassed you over a debt, whether they called you excessively, threatened you, made misrepresentations when trying to collect old debts, called you at work despite knowing you cannot receive these type of calls at work, disclosed your debt to a third party, tried to collect a debt from you that you did not owe, or left you a voicemail message without the proper disclosures, contact Agruss Law Firm, LLC, for a free case evaluation. Founding attorney, Michael Agruss, has settled over 1,500 debt collection harassment cases. Now, Agruss Law Firm, LLC, wants to help you, too.

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Submitted Comments

The debt is for $52...are you seriously going to spend time on this? At one point, I had about 5 policies with one insurance company. Billing was a nightmare, among other customer service issues. One by one, I canceled each policy at expiration, but they have repeatedly tried to tell me I still owe. It has been turned over to a collection agency, and I have since sent a letter requesting validation of the debt. They have not acknolwedged my request; instead, they have sent me another letter asking me to pay. Any interest in this? If I recall correctly, I called them for a quote on a new policy, the one in question, and it was just a quote. Instead, they created a new policy, and after repeated calls, and no cancellation, I just disregarded the bill. Not sure, though. I've had so many conflicts with billing with this insurance company, and it was so long ago, probably a year or more that I can't be sure, but I know for certain I do not owe the $52!