Court finds Servicer’s neutral voicemail advising of payment options does not constitute debt collection – TCPAWorld



Really interesting for services and collectors there.

Like the division between marketing and informational messaging in the TCPA, there is still a division between collection and informational messaging in the context of the FDCPA.

In Hurtser c. Specialized Loan Service, Slip Copy2022 WL 3138993 (ED Mo. Aug. 5, 2022), the Court considered whether the following voicemail message constituted debt collection:

This message is from Specialized Loan Servicing. During this time of the recently announced national emergency regarding COVID-19, we are contacting you to remind you of alternate methods for receiving account information or making payments. You can make payments through our website at or by calling our IVR payment department at (800) 981-9963. You may receive account information through our website at or through our automated telephone system at (800) 315-4757. Thanks.

If so, then SLS was in a lot of trouble because the messages are not compliant with the various FDCPA requirements. However, the Court found that the voice message, which was sent to everything customers and not just those in default – did not constitute debt collection:

Based on the court record, no reasonable jury could conclude that the primary purpose of SLS’s voicemail was to induce payment. Nothing in the SLS informational message is specific to the applicant’s debt; in fact, there is no mention of his debt. No part of the message asks or demands payment from the requestor. It does not threaten the consequences in case of non-payment. Thus, the voicemail from SLS was not a “communication in connection with the collection of a debt” as required to establish liability under the FDCPA.

Really interesting case.

Now, I note that this one could easily have gone the other way. The SLS representative testified that he hoped customers would respond to this VM by making payments – and that would include defaulting customers. But it shows that the courts will somewhat understand the messages sent to inform customers of the changed payment options.

Of note to the TCPA world, plaintiff initially sued under the TCPA, but focused on the FDCPA when the consent was discovered. Something to keep in mind. Many times a claimant will come for the TCPA – bigger and scarier damages – but stay for the FDCPA claims if/when the TCPA component evaporates.

Also, remember that an “all customers” blast using a pre-recorded call is DANGEROUS. If the campaign numbers had changed hands, you could be prosecuted for calls from the wrong numbers under the TCPA, whether or not the calls were for marketing purposes. Be sure to clean the new RND database whenever your ‘last good’ date is more than 90 days old – and you should consider cleaning as early as 30 days.

SLS was fortunate that the plaintiff in this case was not a recipient of erroneous calls. The case could have been much worse.

Always happy to chat.

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