Really interesting one for the servicers and collectors out there.
Similar to the TCPA’s marketing vs. informational messaging divide, there continues to be a divide between collection vs. informational messaging in the FDCPA context.
In Hurtser v. Specialized Loan Servicing, Case No: 4:21-cv-00318 (E.D. Mo. Aug. 5, 2022) the Court considered whether the following voicemail constituted debt collection:
This message is from Specialized Loan Servicing. During this time of the recently announced national emergency relating to COVID-19, we are contacting you to remind you of alternative methods to receive information about your account, or to make payments. You may make payments via our website at http://www.sls.net or calling our Payment IVR service at (800) [xxx]-[xxxx] You can receive account information via our website at http://www.sls.net or through our automated phone system at (800) [xxx]-[xxxx]. Thank you.
If it did, then SLS was in a heap of trouble because the messages does not comply with various FDCPA requirements. However, the Court concluded the voicemail–which was sent to all customers and not just those in default–did not constitute debt collection:
Based on the record before the Court, no reasonable jury could find that an animating purpose of SLS’s voicemail message was to induce payment. Nothing in SLS’s informational message is specific to Plaintiff’s debt; in fact, there is no mention of his debt. No part of the message requests or demands payment from Plaintiff. It does not threaten consequences for nonpayment. Thus, SLS’s voicemail message 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 this one easily could 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 customers in default. But it does show that Courts will be somewhat understanding of messages sent to inform customers of changed payment options.
Of note for the TCPA world, the Plaintiff had originally sued under the TCPA but switched his focus to the FDCPA when consent was discovered. Something to keep in mind. Many times a Plaintiff will come for the TCPA–bigger scarier damages–but stay for FDCPA claims if/when the TCPA component evaporates.
Also, remember an “all customers” blast using a prerecorded call is a DANGEROUS thing folks. If numbers in the campaign had changed hands you can be sued for wrong number calls under the TCPA, regardless of whether or not the calls were for marketing purposes or not. Be sure to scrub the new RND database anytime your “last good” date is more than 90 days in the past–and you should consider scrubbing as soon as 30 days.
SLS was fortunate that the Plaintiff in this case was not a wrong number call recipient. Case could have been much worse.
Always happy to chat.
The order can be found here.