E.D.N.Y Rejects Third-Party Disclosure Claims And Follows Zortman Approach For FDCPA 'Communications'

On November 13, the U.S. District Court for the Eastern District of New York ruled that a debt collector's voicemail message did not violate the Fair Debt Collection Practices Act when it never mentioned that plaintiff owed a debt or conveyed any information about the debt, despite being overheard by the plaintiff's son. In Zweigenhaft v. Receivables Performance Mgmt., LLC, 2014 U.S. Dist. LEXIS 160441 (E.D.N.Y. Nov. 13, 2014), in a somewhat surprising decision – particularly since the same court decided the landmark, pro-consumer Foti case in 2006 – the court held that a voicemail message containing the caller's name and identifying the caller as a debt collector with "an important message" (i.e., the Zortman message) was not a "communication" under the FDCPA.

Factual Background

The defendant left a voicemail message on the plaintiff's home phone and identified itself as a debt collector. The plaintiff's son heard the message and returned the call. The collector's representative simply asked if he was "Abra Zweigenhaft" (the plaintiff's name), then ended the call appropriately. Mr. Zweigenhaft later filed suit, claiming that the voicemail message and phone conversation violated the FDCPA's prohibition on third-party communications. See 15 U.S.C. § 1692c(b).

The Ruling

The court took a refreshing, practical approach to the "paradox" presented by the FDCPA's conflicting voicemail provisions, which require adequate disclosure of a collector's identity in all communications with consumers (§ 1692d(6), e(11)), while also prohibiting third-party disclosure of a debt (§ 1692c(b)). In relevant part, the court stated:

To hold that RPM's actions violated the statute would place an undue restriction on an ethical debt collector in light of our society's common use of communication technology. RPM left Mr. Zweigenhaft one voicemail message, providing the minimum amount of information to remain compliant with the FDCPA and protect his privacy. See 15 U.S.C. § 1692d(6), e(11). As for the follow-up telephone conversation (which Mr. Zweigenhaft's son initiated), the RPM representative only mentioned Mr. Zweigenhaft's name after verifying that someone was calling from his...