When is a Message a Communication “With” a Third Party? The Debate Rages On

Caren Enloe

Since the Foti decision in 2006, the debate has raged on as to when and how a message may be left without violating the FDCPA.  See Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643 (S.D.N.Y. 2006); Zortman v. Christensen & Assocs., Inc. 870 F. Supp. 2d 694 (D. Minn. 2014). An Oregon District Court recently joined the fray and the opinion emphasizes that the decision is often specific to the facts.  Read the opinion here.

In Peak, the consumer alleged that the collection agency violated the FDCPA when it left two messages for her on her cell phone which were overheard by third parties.  Prior to the calls in question, Ms. Peak had entered into a payment arrangement with the collection agency.  During the course of payments, the agency contacted Ms. Peak to confirm her debit card payment information and at the same time, confirmed that the number at which it called her was the best number to reach her.  Key to this decision, Ms. Peak was contacted while she was in her car and therefore, the collection agency was aware that the number was a cell number.  Unbeknownst to the collection agency, however, Ms. Peak’s live-in boyfriend had cancelled his cell phone coverage and was using Ms. Peak’s phone when it was available and had access to her voice mail messages.  The very next day, the collection agency attempted to reach Ms. Peak on her cell number and reached her voice mail. The voice mail message stated:

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