On October 22, 2015, the Sixth Circuit Court of Appeals, in a 2-1 decision, clarified the types of "communication" that can violate the Fair Debt Collection Practices Act FDCPA). In Brown v. Van Ru Credit Corp., No. 15-1323 (recommended for publication), the Sixth Circuit affirmed the trial court's order granting judgment on the pleadings, holding that debtor failed to allege a "communication" to a third party as defined by the statute.
In Brown, a Van Ru representative left a voicemail at Brown's place of business, in which the representative provided her name and Van Ru's name, a reference number, a telephone number, and requested that someone from the business's payroll department return her call. Brown alleged that an employee of the business heard the voicemail, and was aware that Van Ru was a debt collector. Therefore, Brown alleged, Van Ru violated 15 U.S.C. § 1692c(b) by communicating with a third party regarding the debt.
The trial court found that Van Ru had not violated the statute, and the Sixth Circuit agreed, noting that "[t]o convey information regarding a debt, a communication must at a minimum imply the existence of a debt. Otherwise, whatever information is conveyed cannot be understood as 'regarding a debt.' Van Ru's voicemail message—which does little more than ask someone from Brown's business's payroll department to call back—does not do so." Here, because the voicemail in no way indicated what Van Ru's business was, what its relationship to Brown was, or that Brown owed a debt of any sort, it had not communicated any information about the debt—regardless of who listened to the voicemail.
The Sixth Circuit explained that context is important in determining if § 1692c(b) was violated, as "[a] message that would seem cryptic to a third party may have a clearer import when directed to the debtor, and a message that is part of a series of communications may mean more because of what has already been said." The court further explained that "[a] communication to a third party poses little threat to a debtor unless it inspires the third party to harass the debtor or else reveals potentially embarrassing or harmful information to the third party. If a debt collection agency communicates with a third party without either mentioning the debtor or revealing that the debtor owes any debt, it is hard to see how the harms that the FDCPA seeks to avoid could occur."
For additional information, the full text of the Sixth Circuit's opinion can be read here.
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