Pre-Recorded Calls Do Not Violate the FDCPA

In a recent unpublished Fourth Circuit U.S. Court of Appeals opinion, the decision of a district court to grant summary judgment in favor of a debt collector was upheld. In Worsham v. Account Receivable Management, Inc., the brother-in-law of a debtor sued the debt collector because of repeated prerecorded calls to him in an attempt to locate the debtor. The Plaintiff believed that these calls violated the Fair Debt Collection Practices Act (“FDCPA”). Also at issue was the Telephone Consumer Protection Act (“TCPA”), which restricts telephone solicitations and the use of automated telephone equipment.

The debt collection company, Account Receivable Management, Inc. (“ARM”) was trying to locate the debtor, Worsham’s sister-in-law, and discovered that Worsham’s phone number was a possible contact. During a single month, ARM tried to contact the debtor at Worsham’s phone number approximately ten times. The phone calls were answered twice and turned out to be a prerecorded message attempting to determine whether the person was Worsham’s sister-in-law. When Worsham indicated that he was not the debtor, there were more prompts on the prerecorded message and he hung up the phone without completing the message. 

He never spoke to a real person.

In a somewhat shocking opinion, the Fourth Circuit found that even if the debt collector’s calls were considered communications, they would not have violated the FDCPA. The court held that there was not any material issue of fact with regards to the debt collector’s reasonable belief that the plaintiff gave incomplete responses and that the plaintiff would know the location of the debtor since Worsham’s phone number appeared as a possible contact. Given this, the Fourth circuit awarded summary judgment in favor of the debtor collector.

When a debt collector contacts a third party to obtain location information, the debt collector cannot do so more than one call without the permission of the consumer, unless there is a reasonable belief by the debt collector that the first response was incomplete and the third party can provide location information for the debtor. This is found under FDCPA 804(3) and 805(b). Therefore, if there are erroneous or incomplete calls to a third party, the debt collector is permitted to continue calling until satisfied with a completed phone call.

In this case, Worsham did not complete the prompts after he indicated that he was not his sister-in-law. Given his lack of response to the remainder of the call, it is not unreasonable for a person to believe that the response to the call was incomplete. Additionally, it is reasonable for the debt collector to believe that he would know of the debtor’s location since his number appeared as a possible contact. Since this is the case, under the FDCPA the debt collector would be allowed to continue calling Worsham until it believed that it had a complete response. Therefore, ARM’s additional calls did not violate the statute.

What do you think? Has this happened to you? We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 if you prefer to talk to a trained professional over the phone instead, or of course, visit our website at http://www.krohnandmoss.com/.