• New York Judge Dismisses Third Party Disclosure Suit and States That the FDCPA is Clearly Out of Touch with Modern Communication Technology
  • December 15, 2014
  • Law Firm: Fineman Krekstein Harris P.C. - Philadelphia Office
  • In Zweigenhaft v. Receivables Performance Management (“RPM”), the Plaintiff alleged that RPM violated the FDCPA by leaving a voicemail message on the Plaintiff’s home phone. Zweigenhaft v. Receivables Performance Mgmt., LLC, 2014 U.S. Dist. LEXIS 160441, at *6-7 (E.D.N.Y. Nov. 13, 2014). The Plaintiff’s son heard the voicemail and returned the call. The voicemail stated: “We have an important message from RPM. This is a call from a debt collector. Please call 1(866) 212-7408.” After Plaintiff’s son returned the call to RPM, a collection agent recognized that he was not the debtor and stated that Plaintiff’s home phone number would be removed from the system.

    The Plaintiff filed a lawsuit against RPM in the United States District for the Eastern District of New York, alleging that the voicemail and conversation with his son violated the 15 U.S.C. § 1692c(b) of the FDCPA, which prevents a debt collector from speaking with a third party in connection with the collection of an alleged debt.

    Judge Raymond Dearie initially compared the facts to those in Zortman v. J.C. Christensen & Associates, Inc., 870 F. Supp. 2d 694 (D. Minn. 2012), where a debt collector left a very similar voicemail on the plaintiff’s cell phone, which was heard by the Plaintiff’s children. The Zortman court held that the voicemail was not a “communication” as defined in the FDCPA because it “convey[ed] no more information than a hang-up call” would via caller id information. Id. at 706. The court distinguished the voicemail from messages that “also identified the intended recipient of the message, revealed that the intended recipient owes a debt, or both.” Id. at 700.

    Judge Dearie also highlighted that the overall purpose of the FDCPA is to protect consumers from abusive debt collection practices and to do so without imposing unnecessary restrictions on ethical debt collectors. “To hold that RPM’s actions violated the statute would place an undue restriction on an ethical debt collector in light of our society’s common use of communication technology,” he wrote.

    RPM left one voicemail message at the Plaintiff’s home, providing the minimum amount of information to remain compliant with the FDCPA and protect his privacy. Moreover, the RPM representative volunteered to take the number off RPM’s when the Plaintiff’s son called back, never mentioning that the Plaintiff owed a debt. The Judge concluded that “RPM acted with care and caution to protect Mr. Zweigenhaft’s privacy, while availing itself of widely used technology to contact him. It defies common sense and the purpose of the FDCPA to categorize its actions as violating the statute.” Judge Dearie granted summary judgment to the defendant.