Collector - July 2017 - 44

COMPLIANCE

Pass it Along?
Contacting neighbors and other third parties.
By Andrew Pavlik

C

an you ask a third party, such as the
consumer's neighbor or roommate,
to have the consumer contact you?
What if the third party asks if you want to
leave a message for the consumer?
Under Section 804 of the Fair Debt
Collection Practices Act, a debt collector is
permitted to contact third parties to seek
location information.
However, the statute states that when
contacting third parties to seek location
information about a consumer, a debt collector
shall: "(1) identify himself, state that he is
confirming or correcting location information
concerning the consumer, and, only if expressly
requested, identify his employer; (2) not state
that such consumer owes any debt;(3) not
communicate with any such person more than
once unless requested to do so by such person
or unless the debt collector reasonably believes
that the earlier response of such person
is erroneous or incomplete and that such
person now has correct or complete location
information."
Conspicuously absent from this section of
the statute is anything authorizing the debt
collector to request that the third party pass
along a message to the consumer.
The other section of the FDCPA discussing
communication with third parties, Section
805(b), prohibits any communication about
the debt with third parties except as permitted
by Section 804, or with the prior consent of the
consumer, the express permission of a court,
or as reasonably necessary to effectuate a postjudgment judicial remedy. Aside from allowing
one to seek location information under
Section 804 and the exceptions outlined under
Section 805(b), the statute provides no express
exception that would allow a debt collector to
request that a third party pass along a message
to the consumer.
But is asking for a call back really a
communication about the debt that would be

44

prohibited under Section 805(b), even if the
debt collector does not disclose the existence
of the debt?
Notably, the FDCPA defines
communication broadly as "the conveying
of information regarding a debt directly
or indirectly to any person through any
medium" (emphasis added). Based on this
definition, asking the third party to pass
along a message to the consumer could
arguably be "conveying" information about
the debt, albeit indirectly.
Over the years, this has been confirmed
by case law. In one case, a collector called the
consumer's neighbor stating he was calling
regarding a "very important matter" and
asked the neighbor to have the consumer
call him.
The consumer alleged the debt collector
violated the FDCPA by communicating with
a third party regarding the consumer's debt
when the communication was not for the
purpose of obtaining location information.
The court concluded the allegations were
sufficient to state a claim under the act.
Though not every court sides with this
line of reasoning, numerous courts have

found messages asking for a call-back, both
in voicemails and with live third parties, are
"communications" under the FDCPA, even
if the messages do not directly disclose the
existence of the debt.

PRACTICAL CONSIDERATIONS
So what should a collector do in situations
where there is an opportunity to ask a third
party to have the consumer contact the
debt collector? The conservative approach
is likely to record any location information
that the third party has provided and
politely end the call.
Importantly, it's not a per se violation of
the FDCPA for a debt collector to leave a
message with a third party if the message
is specifically for the purpose of obtaining
location information so long as the message
satisfies the requirements for seeking location
information outlined under Section 804.
Aside from FDCPA concerns, some states
further restrict contacting neighbors and
other third parties. For more information,
ACA members can review SearchPoint
#2017, Contacting Neighbors and Other Third
Parties-State Restrictions.

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Table of Contents for the Digital Edition of Collector - July 2017

Upfront
Industry News
Best Practices
FYI
Collection Tips
What’s in Your Policy?
State Licensing Laws: What’s New and Trending
The Question of Rule 68
Calendar
Honor Roll
Healthcare Data at Risk
ACA Members Meet in D.C. to Advocate on Behalf of Industry
Fixing What’s Broken
Credit Listening Considerations
U.S. Supreme Court Hands Collection Industry a Win in ACA-Supported Case
Compliance
ACA SearchPoint
Last Word
Collector - July 2017 - Cover1
Collector - July 2017 - Cover2
Collector - July 2017 - 1
Collector - July 2017 - 2
Collector - July 2017 - Upfront
Collector - July 2017 - Industry News
Collector - July 2017 - 5
Collector - July 2017 - 6
Collector - July 2017 - 7
Collector - July 2017 - Best Practices
Collector - July 2017 - 9
Collector - July 2017 - FYI
Collector - July 2017 - 11
Collector - July 2017 - Collection Tips
Collector - July 2017 - 13
Collector - July 2017 - What’s in Your Policy?
Collector - July 2017 - 15
Collector - July 2017 - 16
Collector - July 2017 - 17
Collector - July 2017 - 18
Collector - July 2017 - 19
Collector - July 2017 - State Licensing Laws: What’s New and Trending
Collector - July 2017 - 21
Collector - July 2017 - 22
Collector - July 2017 - 23
Collector - July 2017 - The Question of Rule 68
Collector - July 2017 - 25
Collector - July 2017 - 26
Collector - July 2017 - 27
Collector - July 2017 - Calendar
Collector - July 2017 - Honor Roll
Collector - July 2017 - Healthcare Data at Risk
Collector - July 2017 - 31
Collector - July 2017 - ACA Members Meet in D.C. to Advocate on Behalf of Industry
Collector - July 2017 - 33
Collector - July 2017 - 34
Collector - July 2017 - 35
Collector - July 2017 - Fixing What’s Broken
Collector - July 2017 - 37
Collector - July 2017 - 38
Collector - July 2017 - 39
Collector - July 2017 - Credit Listening Considerations
Collector - July 2017 - 41
Collector - July 2017 - U.S. Supreme Court Hands Collection Industry a Win in ACA-Supported Case
Collector - July 2017 - 43
Collector - July 2017 - Compliance
Collector - July 2017 - 45
Collector - July 2017 - ACA SearchPoint
Collector - July 2017 - 47
Collector - July 2017 - Last Word
Collector - July 2017 - Cover3
Collector - July 2017 - Cover4
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