A Magistrate judge in New York has recommended that a defendant be found to have violated the Fair Debt Collection Practices Act by making a second location information call to a debtor’s mother and by asking the mother to have her daughter — the debtor — call the defendant back during both conversations.
A copy of the ruling in the case of Raze v. Everest Receivable Services can be accessed by clicking here.
Representatives from the defendant placed two calls to the plaintiff’s mother. The record includes transcripts of both calls, but to make a long story short, the representatives call and say they are looking to confirm location information for the plaintiff, and the mother says she is not able to help. In the first call, the mother says she can’t give out any information, which leads the representative to ask if the mother would pass along a message to her daughter. The representative gives the mother a phone number and, when asked, tells the mother the name of the company she is calling from. During the second call, the mother informs the representative that she does not speak with her daughter often, but offers to pass along a name and number, which the representative provides.
The plaintiff filed suit, alleging the defendant violated Sections 1692b(3), 1692c(b), 1692d, 1692e, and 1692f of the FDCPA. Magistrate Judge Leslie G. Foschio of the District Court for the Western District of New York granted the defendant’s motion for summary judgment on the 1692d, 1692e, and 1692f claims, but denied it on the 1692b(3) and 1692c(b) claims.
Section 1692b(3) allows collectors to make one location information call to someone other than the consumers, unless the collector believes the earlier response of the person was erroneous or incomplete and that the person now has the correct and complete contact information. The defendant argued that during the first call, the mother’s response that she would pass along the message indicated that she had the location information for the plaintiff. But the mother initially said “I really can’t” when asked if she could assist the defendant in confirming location information for the plaintiff, noted Judge Foschio. “No reasonable juror could conclude that anything within [the mother’s] statements supports Defendant’s asserted reasonable belief that [the mother’s] response regarding Plaintiff’s location information was incorrect or incomplete so as to justify Defendant’s second call five days later.”
Section 1692c(b) prohibits communicating information about a debt with a third party with certain exceptions. The defendant argued that it did not disclose the existence of the debt and did not provide any information about the debt when talking with the plaintiff’s mother. While that may be true, there is nothing in the exceptions for 1692c(b) that allows for a collector to leave a message, Judge Foschio ruled. “Simply put, attempting to obtain a debtor-initiated contact is not the same as confirming or inquiring as to a consumer’s location to the extent permitted by § 1692b,” Judge Foschio wrote. “Defendant, by leaving messages requesting a callback from Plaintiff in both the first and second calls, thus violated § 1692c(b).”