Are collector "by listening to this message" lines legal?

[toneman1]

What is the name of your state (only U.S. law)? PA

This has always bugged me. I have received several messages on my answering machine over the years from debt collectors, both for me, and for people I never heard of, that start of with "If you are not so and so, hang up now. By continuing to listen to this message, you are acknowledging that you are so and so." Are these messages in any way a legally binding act, or are collectors just making this up? I mean, they ARE leaving a message, they are basically saying that they are 100% sure you are home and listening to them record this message, which is stupid, as well as the fact that debt collectors often get the wrong number.

 

[TigerD]

What is the name of your state (only U.S. law)? PA

This has always bugged me. I have received several messages on my answering machine over the years from debt collectors, both for me, and for people I never heard of, that start of with "If you are not so and so, hang up now. By continuing to listen to this message, you are acknowledging that you are so and so." Are these messages in any way a legally binding act, or are collectors just making this up? I mean, they ARE leaving a message, they are basically saying that they are 100% sure you are home and listening to them record this message, which is stupid, as well as the fact that debt collectors often get the wrong number.

You are referencing what is called the Foti message. The Foti message was a way to handle leaving messages without a third party disclosure. Personally, I have never been a fan of the Foti message. For many of the reasons you state.
In July of 2013, NCO, a major collection agency, entered into a consent decree and paid a $3.2 million civil penalty (the largest ever against a third party debt collector) over this issue and two others. The FTC Order basically allowed the Foti message in only two circumstances: when the answering machine identifies the debtor by first and last name and no other individuals at all, and 2) when the collector previous spoke with the debtor at that number.

The Zortman message is considered the correct message to leave now. however, I have issues with that message because it can implicate many people who do not have collections actions against them and cast them in a false light if there is a third party disclosure.

This is an issue that will continue to experience litigation. While the FTC NCO consent decree is not binding all collection agencies, the others would be foolish to ignore it.

DC

PS: In disclosure, I joined NCO in a management capacity after they purchased my collection agency. However, this was quite some time ago and I haven't been employed by them in years.

 

[Jeran]

Out of curiosity, DC, what do you say when you leave a voicemail, or do you just hang up and then call back later?

 

[TigerD]

Out of curiosity, DC, what do you say when you leave a voicemail, or do you just hang up and then call back later?

Depends. I usually leave a message if it is work-related. I sometimes leave message for my friends - something complicated like "Call me" - of for my wife, I just hang up. She'll see the missed call and call me before listening to the message anyway.

I haven't worked in collections for a few years.

DC

 

[cbg]

Gotta say, those collectors who leave the "by listening to this message you are acknowledging that you are John Doe" must be pretty good if they know whether the recipient of that voice mail listened to it or not.

 

[dcatz]

Nice, concise summary of a problem that was large and vexing to the industry, DC, and that remains, as you indicate, a sensitive point of some contention. To me, it’s not clear if the OP has recently been receiving the Foti message or was satisfying an aged curiosity. As I’ve said before, I don’t do consumer debt collection in my own practice but have reason to follow developments. As you know, “Foti” was defended and is also still used.

In Foti and Zortman, the Courts were compelled to struggle with an issue that some frequent posters in this forum may fail to recognize: the FDCPA was enacted in 1977; things change. The ubiquitous use of answering machines, cell phones etc., so prevalent today, were not sources FDCPA compliance issue in 1977. I’m not so cynical as to believe that either NCO (Foti) or JCC (Zortman) said to themselves beforehand “we know this is wrong, but let’s take a shot and flaunt the law”. Maybe I’m not cynical enough, but I believe both thought/hoped they were compliant until told otherwise. Both were on terra incognita.

I don’t know if it was a set-up or the question posed to you by Jeran was truly curiosity or an effort to enlighten himself, but the “Zortman” court addressed The Great Educator’s question. As commentators noted, it recognized the “between a rock and a hard place” position in which collectors found themselves:

“. . .the Court noted that in today’s world, it virtually is impossible to use a telephone without revealing directly or indirectly that a debt collector is calling (e.g., even if JCC left no message, Zortman’s cell phone’s missed call log would reveal JCC’s number, which is readily identifiable through a reverse directory).

Notably, the Court specifically discussed the fact that finding a violation for merely identifying oneself as a debt collector effectively would remove the telephone as a means of communication (action the Court seemed to view as significant). As the Court indicated, the FDCPA explicitly permits telephone calls from debt collectors. The FDCPA does not address voicemail. As mentioned above, merely placing a telephone call and hanging up when no one answers essentially conveys the same information as JCC’s voicemail conveyed. To allow the call, but not the voicemail, the Court concluded, would not be a fair reading of the FDCPA.”

I don’t endorse either form of message. I’m relieved that neither is a personal concern. The plaintiff’s factual situation in Zortman would have been almost unfathomable in 1977. There will be new “bridges to cross” tomorrow.

 

[toneman1]

To me, it’s not clear if the OP has recently been receiving the Foti message or was satisfying an aged curiosity.

I have both received such messages over the years(none recently), and was curious as to the legality of these messages.

 

[realfilm]

I've received calls from collectors looking for so and so and I play along with them (knowing that they dialed a wrong number). Then after a few minutes and agreeing to pay the debt I say "guess what? I'm not really so and so shame on you ha ha" and hang up.

 

[FlyingRon]

The court have never dealt with the sucking scum that is the average recovery agency. When some deadbeat had listed my cell phone as his work number, I got to see how unconscionable the industry is. The caller ID would NOT result in "knowing that a collector was calling" except those who had been exposed to their shenanigans. The collectors use every subterfuge, usually masquerading as lawyers, to disguise who they really are. Unfortuantely the FDCPA protects the deadbeat, not the innocent bystander who receives the abuse of these parasites of the industry. Neither calling company management, the phone company, or the police departments in either my county or Kennesaw Gerogia where National Recovery Scum is located could get them to stop making illegal calls (including those in the middle of the night) to my cell phone for a certain "Christopher" who I have no clue who he was other than he seems to have at least one debt sold to National Recovery.

 

[davew128]

Ron, that's unfortunate. I've on occasion received such phone calls but have been fortunate enough that when explaining that the number didn't belong to whomever they were looking for, was told they would update their records, and I think that's all it took. I'm also fortunate in that I've had the same cell number now for nearly a decade so unless someone deliberately uses my number (which would be randomly choosing as I live 3,000 miles away from the area code of the number) I won't be getting more calls.

 

[FlyingRon]

Ron, that's unfortunate. I've on occasion received such phone calls but have been fortunate enough that when explaining that the number didn't belong to whomever they were looking for, was told they would update their records, and I think that's all it took. I'm also fortunate in that I've had the same cell number now for nearly a decade so unless someone deliberately uses my number (which would be randomly choosing as I live 3,000 miles away from the area code of the number) I won't be getting more calls.

Oh, yeah, every time they claim they would remove it from their records. Even when I talked to someone alleging to be the president's secretary.
It however didn't stop the calls. Including 1AM calls, etc.... With all deference to user "debt collector," the industry is full of criminal scoundrels.

What I can't understand is how it is effective to waste their time harassing the innocent bystanders.

 

[Jeran]

Oh, yeah, every time they claim they would remove it from their records. Even when I talked to someone alleging to be the president's secretary.
It however didn't stop the calls. Including 1AM calls, etc.... With all deference to user "debt collector," the industry is full of criminal scoundrels.

What I can't understand is how it is effective to waste their time harassing the innocent bystanders.

I had a similar experience when I first got my pay as you go cell phone from Net 10. Unfortunately, pay as you go cell phones are usually used by people who don't have much money and often have credit problems. The guy who had the cell phone number before me was just as big of a deadbeat as I was, so I started getting lots of collection calls for some guy named Frank. After telling them numerous times they had the wrong number and after hearing them say they would remove my number from their system, I kept getting phone calls from them (and other debt collectors looking for Frank). They simply did not believe that I was not Frank.

So, I started tracking down the name and address of the collection agencies calling me, sometimes by simply Googling the phone number on my caller I.D., or the number they left on voice mail, or by calling them back and listening to what their agency's name was, and sometimes by just asking them who they were (which surprisingly rarely worked because they refused to identify themselves unless I would say that I was Frank, and I didn't want to do that). Once I got their information, I tried find their website and usually that would have either their fax number or an email address for them. Sometimes you can find their fax number on the BBB page for them in headquarter's state.

I would then fax them or email them this simple letter:

TO: [collection agency name]
From: [my pay as you go cell phone number]

"You are calling the wrong phone number. I am not Frank ____________, and I do not know who he is. This is a brand new pay as you go cell phone number for me. Frank no longer has any access to this phone number, and since I have no idea who he is, I have no way of contacting him or of giving you any contact information for him. Every time you call me it costs me 10 cents per minute. Do not call me. Put me on your do not call list. Cease and Desist from any communication with me. I refuse to pay Frank's debt. In accordance with the Telephone Consumer Protection Act, I revoke any authorization you may have had to call this cell phone number and demand that you never call this cell phone number with an auto-dialer."

I covered all my bases with that letter. And it worked great for me. I never hear from those particular collection agencies for Frank again.

I never gave them my name because I wouldn't want them to put my name and number together into some sort of database that my own debt collectors could find. That's the other thing I noticed. Once I got rid of my old land line phone and switched to nothing but a pay as you go cell phone, my own debt collectors never could find my new cell phone number. As far as I can tell, since there is no contract, no credit check, etc. with a pay as you go cell phone, the debt collectors seem to be unable to find that phone number. They did however find my Google Voice number. I started using Google Voice for applications, which ended up on my credit report, etc., and the Google Voice number just forwarded all the calls to my pay as go cell phone number. I'm okay with them getting my Google Voice number, but I wouldn't want them to get my pay as you go cell phone number.

 

[quincy]

I had a similar experience when I first got my pay as you go cell phone from Net 10. Unfortunately, pay as you go cell phones are usually used by people who don't have much money and often have credit problems. The guy who had the cell phone number before me was just as big of a deadbeat as I was, so I started getting lots of collection calls for some guy named Frank. After telling them numerous times they had the wrong number and after hearing them say they would remove my number from their system, I kept getting phone calls from them (and other debt collectors looking for Frank). They simply did not believe that I was not Frank.

So, I started tracking down the name and address of the collection agencies calling me, sometimes by simply Googling the phone number on my caller I.D., or the number they left on voice mail, or by calling them back and listening to what their agency's name was, and sometimes by just asking them who they were (which surprisingly rarely worked because they refused to identify themselves unless I would say that I was Frank, and I didn't want to do that). Once I got their information, I tried find their website and usually that would have either their fax number or an email address for them. Sometimes you can find their fax number on the BBB page for them in headquarter's state.

I would then fax them or email them this simple letter:

TO: [collection agency name]
From: [my pay as you go cell phone number]

"You are calling the wrong phone number. I am not Frank ____________, and I do not know who he is. This is a brand new pay as you go cell phone number for me. Frank no longer has any access to this phone number, and since I have no idea who he is, I have no way of contacting him or of giving you any contact information for him. Every time you call me it costs me 10 cents per minute. Do not call me. Put me on your do not call list. Cease and Desist from any communication with me. I refuse to pay Frank's debt. In accordance with the Telephone Consumer Protection Act, I revoke any authorization you may have had to call this cell phone number and demand that you never call this cell phone number with an auto-dialer."

I covered all my bases with that letter. And it worked great for me. I never hear from those particular collection agencies for Frank again.

I never gave them my name because I wouldn't want them to put my name and number together into some sort of database that my own debt collectors could find. That's the other thing I noticed. Once I got rid of my old land line phone and switched to nothing but a pay as you go cell phone, my own debt collectors never could find my new cell phone number. As far as I can tell, since there is no contract, no credit check, etc. with a pay as you go cell phone, the debt collectors seem to be unable to find that phone number. They did however find my Google Voice number. I started using Google Voice for applications, which ended up on my credit report, etc., and the Google Voice number just forwarded all the calls to my pay as go cell phone number. I'm okay with them getting my Google Voice number, but I wouldn't want them to get my pay as you go cell phone number.

It is important to note that both FlyingRon and dave128 were not/are not trying to stop the phone calls to avoid paying legitimate debts - and you were/are (except, as fate would have it, you managed to be assigned a pay-as-you-go number belonging to another deadbeat - the irony, huh? ).

Your suggestion on how to stop the calls is a good one, though.