Debate surrounding the type of voicemail debt collectors may leave for consumers ramped up during insideARM’s August Ask the Attorney webinar. John Rossman, shareholder and chair of the Creditors’ Remedies Practice Group at Moss & Barnett, and John Bedard, managing attorney of Bedard Law Group, got into a heated discussion about the fallout from Foti v. NCO Financial Systems, which ruled that debt collectors must give “meaningful disclosure” when leaving voicemails.

Bedard explained that debt collectors must proceed with caution when leaving voicemails for consumers, especially when the message contains the consumer’s name and the reason for the call. But then, Rossman asked the controversial question: “Could you just leave the name of the consumer, and not the mini-Miranda? Go back to a pre-Foti-type message, the type of message we all used back in the ‘90s and early 2000s?”

“My thought is, each of these steps along the way, we’ve all viewed them as being such a huge shift as collectors, and the longer we spend in this industry, we get this mindset that we have to keep doing things the same way we’re doing them,” Rossman said. “Otherwise, our liquidation rates are going to go down; otherwise, we’re not going to collect as much; otherwise, we’re not going to serve the consumers as well as we could. We’re debt collectors to serve the consumers.”

But Bedard was quick to call out the holes in Rossman’s argument. Scrapping the guidance from Foti altogether implies that certain parts of the statute are more important than others. In reality, that kind of argument won’t hold up in court. And ultimately, the best form of consumer protection that a debt collector can provide is actually following the law in its communication with consumers.

Bedard likened the challenges debt collectors face today to the challenges the automobile industry had when it was first competing with the horse and buggy.

“Just because we now have automobiles that operate much, much faster, and it’s a better way to get us all from point A to point B, it is no excuse that it is more difficult to stop the automobile, because you’ve killed ten people,” Bedard said. “The rule is the same: Don’t kill people. And if you can’t get in your car and avoid killing people, just because it’s a faster, better, cheaper way to get from point A to point B, too bad. Don’t violate the law; don’t kill people. And if you can’t control your automobile, then don’t get in it.”

Bedard argued that the evolution in compliance standards is the result of new technology that the industry hasn’t completely figured out how to handle. But that does not mean the law is inherently inconsistent.

In the end, the two attorneys were able to agree that a productive next step would be for the Consumer Financial Protection Bureau to come out with clear rules about what it wants a voice message to contain.

The audio recording and transcript from Thursday’s webinar are available for order now. You can also still take advantage of our Labor Day sale; save 15 percent on this insightful presentation, as well as everything else in the store with the code LABORDAY2013.


Advertisement