Initial Communication Under the FDCPA

Initial Communication Under the FDCPA

Your initial communication with a consumer should not be a voicemail. You may be caught between a rock and a hard place if you do.

Hart v. Credit Control (11th circuit- September 2017) ruled that a Zortman-type voicemail falls within the FDCPA’s definition of a “communication.” That, in turn, triggers the mini-miranda requirement. A voicemail that includes the shortened mini-miranda allowed for subsequent communications is not Zortman compliant.

Under this line of reasoning, a debt collector’s initial communication with a consumer should not be a voicemail (Zortman compliant or otherwise). It creates an unsolvable dilemma between 1692d(6) (third party disclosure) and 1692e(11) (initial communication must have the full mini-miranda). In this ‘initial communication is a voicemail’ scenario, if you comply with 1692d(6), then you arguably violate 1692e(11) and vice versa.

Hart was out of the 11th circuit and every circuit is different, but our overall advice is to make sure the 1692g notice is mailed (and received in a perfect world) before starting calls or, at the very least, before leaving voicemail messages.

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