Collector - May 2017 - 52
Put It In Writing?
What to do when a consumer tells you to stop calling.
By Andrew Pavlik
icture this: You're talking on the
phone with a consumer about her
debt when she suddenly says, "I'm
not paying this debt. Stop calling me." What
are your obligations? Are debt collectors
obliged to cease all communications with
the consumer in these instances? Should
they merely stop making calls, or can they
ignore such requests altogether?
CONSULTING THE STATUTE
Under Section 805(c) of the Fair Debt
Collection Practices Act, a debt collector
must cease communications with a
consumer if the consumer sends a written
notice stating the consumer "refuses to pay
a debt or that the consumer wishes the debt
collector to cease further communication
with the consumer." Based on the plain
wording of the statute, a consumer's oral
request to stop calling or oral refusal to pay
would not trigger a debt collector's duty
under this section to refrain from further
communications with the consumer.
But wait, that's not the end of the story.
While the protections of Section 805(c)
are only triggered by a consumer's written
notice, we must also consider other sections
of the act. Take, for example, Section 805(a)
(1), which states that a debt collector must
refrain from communications "at any
unusual time or place or a time or place
known or which should be known to be
inconvenient to the consumer."
Notice that this section does not include
a writing requirement. So once consumers
put you on notice that they don't want phone
calls, arguably Section 805(a)(1) may require
you to refrain from making further calls to
Additionally, further calls to the consumer
may lead to claims of harassment. Section
806(5) broadly prohibits "[c]ausing a
telephone to ring or engaging any person
in telephone conversation repeatedly or
continuously with intent to annoy, abuse,
or harass any person at the called number."
Although courts generally look at the totality
of communications and call times and
patterns to determine if the calls resulted in
harassment, courts also consider whether the
consumer requested the calls stop.
Other issues may come into play if
your agency is using an autodialer or a
prerecorded message to place calls to a
cell phone. The Telephone Consumer
Protection Act prohibits any caller from
using an autodialer or prerecorded message
to call a consumer's wireless phone,
unless the caller has the called party's
prior express consent to call the number.
Individuals have the right to revoke such
consent in any reasonable way at any time.
Thus, a consumer's verbal request to stop
calling her wireless phone may amount to
revocation of consent, meaning that future
autodialed calls to that wireless number
may violate the TCPA.
Keeping all these issues in mind, a
collector needs to determine what steps it
will take in response to consumers' verbal
requests, and implement corresponding
policies and procedures. While the FDCPA
only requires that a debt collector cease all
communication based on a written request,
oral requests do have important implications
Andrew Pavlik is ACA International's senior