Fontainebleau Miami Beach
4441 Collins Avenue
Miami Beach, FL 33140
Monday, March 14, 2011
FDCPA DISCLOSURE PROHIBITIONS; FROM LEAVING MESSAGES TO COMMUNICATING WITH DEBT MATCHING SERVICES
- Recent court decisions have made leaving messages on voice mails or answering machines very challenging for both first and third party collectors. Should the nature of the debt be disclosed in a message to satisfy the “mini-miranda” requirements set forth in the FDCPA, or will such a message violate other sections of the FDCPA, namely the prohibition of disclosing the debt to third parties? Will failure to leave the mini miranda message on a message subject the collector to a lawsuit for failure to properly disclose the nature of the call to the debtor?
An analysis of the recent decisions put forth in Foti v. NCO Financial Systems and Hosseinzadeh v. M.R.S. Assocs., Inc in conjunction with the FDCPA and other applicable disclosure regulations will provide guidance in the area of leaving messages for debtors.
- New industries have begun to emerge allowing collectors and/or creditors to communicate with debtors enrolled in debt settlement programs, sometimes referred to as debt matching services. Specifically these services match collectors and debtors allowing collectors access to debtor information such as how much a debtor has saved and how much a debtor may be willing to settle the debt for. These new modes of communication have great potential for debtors and collectors, allowing each the opportunity to quickly settle and satisfy the debt. However it does not come with its potential pitfalls. Given the FDCPA’s prohibition of the disclosure of a debt to third a third party, how can collectors communicate with a debt matching service while remaining FDCPA compliant?
An analysis of the FDCPA in conjunction with other state and federal regulations will provide those interested in utilizing these new services with the best possible methods to ensure compliance.