Rule 68 Allows For “Post-Offer” Fees, But Defendant Still Wins Summary Judgment Because Voicemail It Used Was Not a Communication

In Zortman v. J.C. Christensen & Associates, Inc., Case No. 10-3086 (D. Minn. May 2, 2012), plaintiff debtor alleged that defendant debt collector violated Section 1692c(b) of the Fair Debt Collection Practices Act (FDCPA) by improperly communicating with a third party. The debt collector had left a voicemail on the debtor’s cell phone, stating the debt collector’s name and that it had an “important message.” The debtor allowed her children to use her phone and they heard the voicemail message. The debt collector made a Fed. R. Civ. P. 68 offer of judgment to plaintiff debtor for $1,001, plus fees and costs through the date of the offer, then moved for summary judgment, arguing that: (1) the debtor’s claim was moot because the debt collector made a Rule 68 offer of judgment to the debtor; and (2) the debt collector’s message did not violate Section 1692c(b) of the FDCPA.

The district court held that the Rule 68 offer did not moot the debtor’s claim because it did not encompass all the relief sought such as “post-offer” fees. But the court granted the debt collector’s motion for summary judgment because the voicemail did not constitute a “communication.” The court ruled that the unintended listener would have to make two key inferences for the message to fall within the “conveying of information regarding a debt” language of Section 1692a(2) of the FDCPA: (1) the debtor was being contacted in connection with a debt he or she owed even though the message did not identify him or her by name; and (2) the only reason that the debt collector would call the debtor is to collect a debt. Thus, the message was not a communication because it did not identify a consumer and a debt.

The district court distinguished other cases where it was held that a voicemail constitutes a communication, finding that those cases involved messages that conveyed more information than would be available from a hang-up or missed call. Further, the court disagreed with some courts’ suggestions that debt collectors should use nontelephonic means to communicate with consumers, noting that the FDCPA specifically permits telephone calls from debt collectors. “Drawing a distinction that would allow a call but outlaw the corresponding voicemail would not be a fair reading of the [ FDCPA] and would not advance consumer interests.”

This is a win for the defense, but the opinion highlights the continuing struggle to comply with Foti and Section 1692c(b).