Fact-Deficient FDCPA Allegations Do Not Overshadow Ruling
Last week in an FDCPA case, a judge for the federal district court N.Y. ruled that a letter containing a fifteen-day settlement offer did not overshadow the § 1692g-mandated thirty-day validation notice.
The deets
Capio Partners sent a letter to the plaintiff offering a one-time 50% discount on her balance. The letter also included language noting that the offer and settlement deadline “do not in any way affect your right to dispute this debt and request validation of this debt during the 30 days following your receipt of this letter.” The plaintiff took Capio to court instead, alleging that the offer overshadowed her 30-day validation period.
The judge wasn’t having it. She dismissed the overshadowing claim, stating, “Even the least sophisticated consumer would not read the settlement offer and validation language so carelessly or idiosyncratically as to be misled into disregarding her validation rights.”
The plaintiff also alleged violations of many other provisions of the FDCPA, but since the plaintiff did so without “proffering any facts,” as the Judge noted, those claims were tossed, too.
The case: Santora v. Capio Partners, LLC (Case No. 16-cv-02788, U.S.D.C., Eastern District of New York)
23 Calls in 24 Days Is Fine, 25 Calls in 24 Days Is Misery
How many calls is too many calls? That's a Zen koan none of us will ever be able to answer with any certainty in our lifetime. Take, for instance, I.C. Systems.
The Deets
In attempting to collect $160 from a consumer, I.C. Systems placed 29 phone calls between 16 February and 11 March (back in 2015, when we were all younger). The problem(s):
1) The consumer claimed to have told I.C. Systems to stop calling after the first of the 29 calls; and
2) The plaintiff was registered on the Do Not Call registry.
The Counter Deets
All the Connecticut Court did in this case was deny a motion for judgment on the pleadings. This means a full court case is probably on the horizon – and we'll meet again as a family to discuss what happened.
What's the Lesson?
I mean, scrub? Scrub your lists, especially against Do Not Call registries, especially if you're going to call with a dialer. I.C. Systems felt that 29 calls in 24 days wasn't Too Many Calls -- but the court felt that that was pushing it. So, scrub but also think about what your current Call Volume Policy might be.
The case: Lundstedt v. I.C. System, Inc (Case No. 3-15-cv-00824, U.S.D.C., District of Connecticut).
My Friends Call Me Nickname
A New Jersey judge dismissed an FDCPA suit alleging a UDAAP violation when a collection agency identified itself by an acronym rather than its Corporation True Name. As with a lot of "good news" cases in the industry, it isn't a quick slam-dunk.
The Deets
ARS Account Resolution Services left a pre-recorded message on a consumer's voicemail: "ARS calling. Please return our call at 1-800-694-3048. ARS is a debt collector. This is an attempt to collect a debt. Any information obtained will be used for that purpose. Again, our number is 1-800-694-3048. Visit us at www.arspayment.com."
The plaintiff wanted to suggest two problems: (1) There's no meaningful disclosure about who ARS is, since there are a lot of other debt collection companies with the same name. And (2) ARS Account Resolution Services isn't even the company's corporate name. Its corporate name is Healthcare Revenue Recovery Group, LLC.
The Counter Deets
The Court felt that ARS/HRRG disclosed, in the message, that it was a debt collection by saying "ARS is a debt collector." The Court also stated that, because HRRG registered "ARS Account Resolution Services" as an alternate trade name with the State of New Jersey, that put paid to the second claim, too.
Not mentioned by the Court -- but no doubt incredibly helpful in this case (hint hint): That voicemail message stated the company's web address. Had they not...who knows?
The case: Levins v. Healthcare Revenue Recovery Group, LLC, (Case No. 1-17-cv-00928, U.S.D.C, District of New Jersey)
“Limited Content” VMs Won’t Punch Your Ticket out of FDCPA-Town, Eleventh Circuit Rules
Last Friday the Eleventh Circuit Court of Appeals issued an opinion covering two specific FDCPA issues:
- Does a voicemail left by a debt collector constitute a “communication” under the FDCPA? Yes.
- Does a message left by a debt collector need to include the caller’s identity in order to constitute a “meaningful disclosure”? No.
The deets
Stacy Hart filed a complaint against Credit Control, LLC after the agency left her several, short voice mail messages. The message did state that it was coming from Credit Control, but did not convey the identity of the caller. The message also did not include language suggesting that the message itself was an attempt to collect on a debt. Hart alleged that Credit Control violated two provisions of the FDCPA—§ 1692e(11) and § 1692d(6)—governing false or misleading representations and harassment and abuse respectively.
The Middle District Court of Fla. dismissed the case after essentially agreeing with Credit Control’s arguments:
- The call was not a “communication” as defined by the FDCPA since it did not mention an intent to collect on a debt; and
- The caller did not need to identify him or herself in order for the call to provide “meaningful disclosure.”
On the second point, the Eleventh Circuit agreed, stating: “We hold that meaningful disclosure does not require the individual caller to reveal her name, and this holding comports with text of the FDCPA. The individual caller here is working on behalf of the debt collection company, which is the actual entity collecting the debt.”
On the first point, however, the Eleventh Circuit disagreed, stating that, well, when you get a call from a debt collector, it IS a communication as defined by the FDCPA and the required disclosures should have been given.
“Credit Control’s first voicemail to Hart falls squarely within the FDCPA’s broad definition of communication,” the court notes. “The voicemail, although short, conveyed information directly to Hart—by letting her know that a debt collector sought to speak with her and by providing her with instructions and contact information to return the call. The voicemail also indicated that a debt collector was seeking to speak to her as a part of its efforts to collect a debt.”
The Court of Appeals remanded the case back to the district court for further proceedings consistent with their opinion.
The case: Hart v. Credit Control, LLC (Case No. 16-17126, U.S. Court of Appeals, Eleventh Circuit
Bonus read: The CFPB’s Outline of Proposed Debt Collection Rules, which addresses “limited content” messages.
State-by-State Balance Billing Is a Mess
Without a clear national standard for balance bills, consumers remain at risk and providers face significant administrative hassle. Those that offer outsourced business office or collection functions to healthcare providers should be fully educated on the laws related to balance billing, and a range of patient financing options, writes insideARM’s Berta Bustamante.
To mitigate the effect of situations where consumers have no control over which providers treat them, many states are working on policy solutions to protect consumers and limit financial risk. But, finding common ground between insurers and providers has been tough.
A federal solution may have the greatest potential for success. Until that happens, however, you’ll want to read up on which states have no comprehensive balance billing legislation and which ones have attempted (successfully or not) to provide a state-level solution. Read the full story here.
