Judge Grants MTD in FDCPA Case Involving Overheard Voicemail Message

A District Court judge in North Carolina has granted a defendant’s motion to dismiss after it was accused of violating the Fair Debt Collection Practices Act by leaving a voicemail message on an individual’s cell phone that was overheard by the plaintiff’s sister, ruling that cell phone voicemails are intended to be private and if a message is inadvertently heard by a third party, especially when the recipient of the message is responsible for disseminating it, it does not constitute a third-party disclosure under the FDCPA.

A copy of the ruling in the case of Bryan v. Everest Receivable Services can be accessed by clicking here.

This is the second time now that this particular plaintiff has accused a collector of violating the FDCPA by leaving voicemail messages that were overheard by members of her family. Maybe the message here is to stop listening to voicemails where other people can hear what is being said. Just saying.

The ruling in this case separates voicemails left on traditional landline telephones and those left on individuals’ cell phones, ruling that there is an expectation of privacy when leaving voicemail messages on cell phones.

An overheard voicemail left on an individual’s cell phone is equivalent to someone opening a piece of mail that was properly addressed to someone else, ruled Judge Robert J. Conrad, Jr. of the District Court for the Western District of North Carolina. “Like a letter that is personally addressed, a targeted voicemail message left on a personal cell phone that is disseminated by the debtor cannot be a third-party communication,” Judge Conrad wrote. “To do so would make debt collectors liable whenever a personalized communication to a debtor is disseminated to a third-party by the debtor himself. Such a scenario runs afoul of the FDCPA’s intended purpose to prevent debt collectors from utilizing truly offensive means to collect a debt.”

The ruling might be helpful to anyone worried about third-party disclosures either when currently leaving voicemail messages on an individual’s cell phone, or those who are considering using the Limited-Content Message under Regulation F.

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