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PostPosted: Sun Jul 16, 2006 4:32 pm 
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C. Whether NCO Sent "Communications" to Plaintiffs
In order to be subject to some of the protections of the FDCPA, correspondence must be a "communication" within the meaning of the Act. There is no dispute that the January 26 Conversation constitutes a "communication." [FN18] Moreover, there is no suggestion that telephone communications, in contrast to written communications, are not protected by the FDCPA.

FN18. At argument, NCO's counsel conceded this point:
THE COURT: Then it is a communication. It conveys information about a debt.
MR. ISRAEL: Absolutely.
THE COURT: So the telephone conversation, you will concede is a communication.
(Tr. 18)

[3] NCO argues, however, that the January 18 Pre-Recorded Message is not a "communication" within the meaning of the FDCPA because it "does not convey any information regarding a debt, but instead simply requests a return call regarding an important business matter." (NCO Mem. 4) NCO suggests that to the extent the message is not a "communication," Plaintiffs' § 1692g and § 1692e(10) claims (in Count One), and Plaintiffs' § 1692e(11) claims (in Count Two) should be dismissed with respect to the January 18 Pre-Recorded Message.
While it is clear that the message must be a "communication" to be protected by § 1692e(11) (requiring disclosure in "subsequent communications" ) (emphasis added), correspondence does not necessarily need to be a "communication" in order to be subject to Plaintiffs' § 1692g claims in Count One. Rather, the § 1692g claim, discussed below, addresses whether the January 18 Pre-Recorded Message "overshadowed" the otherwise valid initial communication, the January 1 Letter. Resolution of that claim, however, does not depend on whether the January 18 Pre-Recorded Message is a "communication" under the Act. 15 U.S.C. § 1692a(2) ("The term 'communication' means the conveying of information regarding a debt directly or indirectly to any person through any medium."). Additionally, the § 1692e(10) claim (in Count One) hinges on whether the debt collector made "use of any false representation or deceptive means to collect or attempt to collect any debt...." 15 U.S.C. § 1692e(10). This claim also does not depend on a finding that an allegedly false representation was in the form of a "communication" under the Act. Thus, even if NCO prevails in establishing that the January 18 Pre-Recorded Message does not constitute a "communication," this would only implicate the § 1692e(11) claim in Count Two.
In any event, NCO's Memorandum of Law in support of its Motion failed to cite one case in support of its position that the January 18 Pre-Recorded Message is not a communication, and pointed to only one case at oral argument. [FN19] (Tr. 7) Given this paucity of authority, the Court has little *655 difficulty in rejecting NCO's narrow interpretation of the word "communication," and concludes that the January 18 Pre-Recorded Message is protected as a "communication" under the FDCPA.

FN19. NCO cites to Fava v. RRI, Inc., No. 96 Civ. 629, 1997 WL 205336 (N.D.N.Y. Apr. 24, 1997), but that case is not helpful to Defendant. First, the court noted in Fava that there could be no FDCPA claim based on the debt collector's fax because that fax was not specifically addressed in plaintiff's complaint. Id. at *6. Second, the court's one-line comment is dicta and there is no discussion of the details of the fax at issue. Id.

"The FDCPA defines 'communication' very broadly as 'the conveying of information regarding a debt directly or indirectly to any person through any medium.' " Romea v. Heiberger & Assocs., 163 F.3d 111, 114 n. 2 (2d Cir.1998) (quoting 15 U.S.C. § 1692(a)(2)) (holding that notice demanding payment of rent arrearage or surrender of rented premises to landlord was a "communication" within the meaning of the FDCPA). While the Second Circuit has not precisely defined the scope of the term "communication," it has suggested in other contexts that, consistent with Congress's intent in enacting the FDCPA, the statute should be broadly construed. See Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir.1989) ("[I]t is apparent that the prescribed requirement can further the Congressional purpose in enacting the FDCPA in 1977, which was to prevent 'abusive, deceptive, and unfair debt collection practices.' ") (citations omitted) (holding that under the pre- amended version of § 1692e(11), disclosure is required in all communications); [FN20] see also Cavallaro v. Law Office of Shapiro & Kreisman, 933 F.Supp. 1148, 1153 (E.D.N.Y.1996) ("The Second Circuit also has warned debt collectors against loosely interpreting the FDCPA.") (citing Russell, 74 F.3d at 35); accord Blair v. Sherman Acquisition, No. 04 Civ. 4718, 2004 WL 2870080, at *2 (N.D.Ill. Dec. 13, 2004) ("Because it is designed to protect consumers, the FDCPA is, in general, liberally construed in favor of consumers to effect its purpose.").

FN20. As noted, infra at note 34, the statute was amended in 1996.

Outside the Second Circuit, at least one court has rejected the very claim made by Defendant. In Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104 (C.D.Cal.2005), the debt collector argued that its standard voicemail messages to debtors were not "communications" under the FDCPA because "they did not convey[ ] information regarding a debt directly or indirectly to any person." [FN21] Id. at 1115 (omitting quotations) (brackets in original). In rejecting the argument, the court held:

FN21. The voicemail messages were similar to the one at issue in this case. One example is: Hello, this is Thomas Hunt calling. Please have an adult contact me regarding some rather important information. This is not a sales call, however, regulations prevent me from leaving more details. You will want to contact me at 1-877-647-5945 as soon as possible. This is a toll free number. Once again this is Thomas Hunt calling and my number is 1-877-647- 5945. Thank you. Hosseinzadeh, 387 F.Supp.2d at 1107.

While the messages may not technically mention specific information about a debt or the nature of the call, § 1692a(2) applies to information conveyed "directly or indirectly." Defendant conveyed information to plaintiff, including the fact that there was an important matter that she should attend to and instructions on how to do so.
Id. at 1116. Further, as is evident from Plaintiffs' allegations in this case, the Hosseinzadeh court found it significant that the voicemails "were merely the first step in a process designed to communicate with plaintiff about her alleged debt." Id.
Hosseinzadeh is on all-fours with this case. Defendant's voicemail message, while devoid of any specific information about any particular debt, clearly provided some information, even if indirectly, to the intended recipient of the message. Specifically, *656 the message advised the debtor that the matter required immediate attention, and provided a specific number to call to discuss the matter. Given that the obvious purpose of the message was to provide the debtor with enough information to entice a return call, it is difficult to imagine how the voicemail message is not a communication under the FDCPA. [FN22]

FN22. In a footnote, the Hosseinzadeh court rejected Plaintiffs' argument that disclosures included in § 1692e(11) were required to be included in initial and subsequent communications, citing a Ninth Circuit decision holding that where the debtor already knows the identity of the debt collector, there is no need for § 1692e(11) disclosures. 387 F.Supp.2d. at 1115 n. 17 (citing Pressley v. Capital Credit & Collection Serv., 760 F.2d 922, 925 (9th Cir.1985)). However, it bears noting that Pressley has been rejected by several circuits, including, most importantly, the Second Circuit. See Pipiles, 886 F.2d at 26-27 (noting the three reasons the Second Circuit "disagree[s]" with Pressley ); accord Tolentino v. Friedman, 46 F.3d 645, 650 (7th Cir.1995) ("Several courts of appeals have also rejected the Pressley decision and held that the debt collection warning must be contained in 'all communications.' ") (citing, among others, Pipiles ).

The scope of the term "communication" has been addressed in other contexts as well, including under § 1692c(b), which regulates communications between debt collectors and third parties (people other than the debtor). [FN23] Two cases have suggested that correspondence is not a "communication" where it does not convey any specific information about the debt being collected. See Horkey v. J.V.D.B. & Assocs., Inc., 179 F.Supp.2d 861, 868 (N.D.Ill.2002) ("The Court agrees with Defendant and finds that there is no evidence that [defendant's employee] in communicating with [p]laintiff's co-worker ... discussed [p]laintiff's debt. Rather, [the] conversation with [plaintiff's co-worker] was merely limited to inquiring as to [p]laintiff's whereabouts ...."), aff'd on other grounds, 333 F.3d 769 (7th Cir.2003); Fava, 1997 WL 205336, at *6 ("The March 12th fax does not convey any information regarding the [plaintiffs'] debt and therefore is not a communication within the meaning of the Act.").

FN23. 15 U.S.C. § 1692c(b) provides: Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with
any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

Thus, "[t]o be prohibited, the third party communication need only be 'in connection with the collection of a debt.' " Henderson v. Eaton, No. Civ. A. 01-0138, 2001 WL 969105, at *2 (E.D.La. Aug. 23, 2001).

However, in West v. Nationwide Credit, 998 F.Supp. 642, 644 (W.D.N.C.1998), the court rejected a narrow interpretation of the word "communication," similar to that advanced by NCO in this case. The plaintiff in West alleged that defendants violated § 1692c(b) by contacting plaintiff's neighbor. Defendants argued that a debt collector's phone call informing a neighbor that he had a "very important" matter to discuss did not violate § 1692c(b) because no information was actually conveyed about plaintiff's debt. The West court rejected this narrow interpretation of "communication" in favor of a broader interpretation. Id. at 644. In reaching this conclusion, the West court noted that "[i]n interpreting the meaning of a statute, it is well settled that '[t]he "plain meaning" of statutory language controls its construction,' " and went on to examine the dictionary definitions of "regarding." Id. (quoting *657 Summit Inv. & Dev. Corp. v. Leroux, 69 F.3d 608, 610 (1st Cir.1995)). In particular, the court noted: "Webster's Ninth New Collegiate Dictionary (1st ed.1983) defines the term 'regard' as, inter alia, 'to relate to,' while it provides the following definition of the term 'regarding': 'with respect to: concerning.' " Id. "Based on these definitions, the court believes the ordinary meaning of the term 'regarding' is consistent with the broader interpretation advocated by Plaintiff." Id.
This conclusion has been embraced by other courts as well in the context of applying § 1692c(b). See, e.g., Henderson, 2001 WL 969105, at *2 (rejecting defendant's argument that letter sent to employer seeking information about whether plaintiff was employed, her wage scale, her type of employment, the full name of her employer, and if terminated, the name of her present employer, did not violate § 1692c(b) because it did not suggest a debt collection purpose). [FN24]

FN24. Henderson distinguished the Seventh Circuit's decision in Bailey v. Security Nat'l Servicing Corp., 154 F.3d 384, 388 (7th Cir.1998) on the grounds that "the communication in Bailey was from the defendants to the debtors, not to a third party." Henderson, 2001 WL 969105, at *2. In Bailey, the Seventh Circuit held, in dicta, that a letter informing debtors of the current status of their accounts and due dates was not a "communication":

It is worth noting that the plaintiffs lose for a different reason, too.
Under the law only communications "in connection with the collection of any debt" (see 15 U.S.C. §§ 1692e, 1692g) fall under the ambit of the Act, and the defendants' letters cannot reasonably be placed in that category. The important letter dated January 4 does not "demand" any payment whatsoever, but merely informs the Baileys about "the current status" of their account. The due dates listed in the letter are all prospective. Surely this is not the type of dunning letter that describes a communication related to "the collection" of a debt. Bailey, 154 F.3d at 388-89.

Bailey, however, is distinguishable from the present case in that the letter in that case listed future payment dates rather than seeking to collect on a debt. See id. at 389 ("A warning that something bad might happen if payment is not kept current is not a dun, nor does it seek to collect any debt, but rather the opposite because it tries to prevent the circumstance wherein payments are missed and a real dun must be mailed."). Moreover, the Bailey court was focused less on the question of whether the letter was "communication," and more on the question of whether it was "related to 'the collection' of a debt." Id.

Thus, given the choice of language by Congress, the FDCPA should be interpreted to cover communications that convey, directly or indirectly, any information relating to a debt, and not just when the debt collector discloses specific information about the particular debt being collected. Indeed, a narrow reading of the term "communication" to exclude instances such as the present case where no specific information about a debt is explicitly conveyed could create a significant loophole in the FDCPA, allowing debtors to circumvent the § 1692e(11) disclosure requirement, and other provisions of the FDCPA that have a threshold "communication" requirement, merely by not conveying specific information about the debt. In fact, under Defendant's interpretation of "communication," a debt collector could call regularly after the thirty-day validation notice is sent, and not be subject to § 1692e(11)' s requirement so long as the message did not convey specific information about the debt. [FN25] Such a reading is inconsistent with *658 Congress's intent to protect consumers from "serious and widespread" debt collection abuses.

FN25. Confronted with this point at argument, Defendant's counsel hedged on whether such actions would be permissible under the FDCPA. Counsel stated "I am hedging, because I think when you add the word 'payment' it is poor judgment" (Tr. 9), and suggested that "[a]t some point if you call every single day and you keep asking for immediate payment," that might be problematic. (Tr. 10) Defendant's counsel was unable to provide any argument as to why under his interpretation of "communication," constant demands, even for payment, would not violate the FDCPA so long as the communications did not convey specific information about the debt.

The Court agrees that provisions apart from § 1692e(11) might constrain a debt collector from making such persistent demands. See, e.g., 15 U.S.C. § 1692d(5)-(6). However, the fact that other provisions may provide some protections to consumers is not a basis for interpreting "communication" in a manner that would allow debt collectors to easily circumvent § 1692e(11), and other FDCPA provisions where there is a threshold "communication" requirement.

The term "communication," of course, is limited to those situations involving the "conveying of information regarding a debt directly or indirectly." 15 U.S.C. § 1692(a)(2). A phone call by a debt collector that in no way regards, or relates to, an outstanding debt would not violate the Act. See Bailey, 154 F.3d at 388-89. Here, however, there appears to be no question that the call related to the collection of a debt--when Foti returned the call he was explicitly told that it was in connection with the collection of a debt. Moreover, even under a more narrow reading of the term "communication," requiring specific information about the debt to be conveyed, the January 18 Pre-Recorded Message arguably satisfies that standard. The message indicates that it is a call from NCO Financial Systems--such identification could suggest to a listener who is familiar with the fact that NCO Financial Systems is a debt collector--and that the call is about a debt, and thus may indirectly convey information about the debt. This conclusion is not inconsistent with the Court's rejection, below, of NCO's argument that Count Two should be dismissed as to the January 18 Pre-Recorded Message. Arguably, the message sufficiently conveys information about a debt to be deemed a "communication," particularly given the Second Circuit's suggestion that the Act should be broadly construed, despite the fact the Court concludes that it fails to comply with § 1692e(11)'s disclosure requirement under the "least sophisticated consumer" standard.
Finally, Defendant suggests that its interpretation of "communication" is necessary to avoid placing debt collectors in a virtual "Hobson's choice"--debt collectors must disclose their identity as a debt collector to comply with § 1692e(11)'s requirements, but are prohibited from leaving a message identifying themselves as such by § 1692c(b)'s prohibition on communications to third parties. (NCO Mem. 7) Thus, Defendant argues that "[t]he safest thing to do is to recognize what it is. It is not a communication. Once you recognize that it is not a communication, then there is no obligation to identify that you are a debt collector." (Tr. 8) This argument is unconvincing.
The fact that FDCPA provisions affect the means by which NCO wishes to collect the debt during the thirty-day validation period does not warrant disregarding Congress's clear intent to combat widespread abuse in debt collection practices. NCO's argument is essentially based on the assumption that it is somehow entitled to leave pre-recorded messages. It is true that the FDCPA does not prevent all conduct by the debt collector during the thirty-day validation period. See Orenbuch v. Computer Credit, Inc., No. 01 Civ. 9338, 2002 WL 1918222, at *2 (S.D.N.Y. Aug. 19, 2002) ("[N]othing in the FDCPA prevents a debt collector that has not received a request for validation or other reply from a consumer from continuing to attempt to collect the debt during the 30-day validation *659 period, provided that, in so doing, it does not create the impression that the consumer has less than 30 days in which to dispute the debt.") (citing Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054-55 (6th Cir.1999)); Kramsky v. Trans-Cont'l Credit & Collection Corp., 166 F.Supp.2d 908, 912 (S.D.N.Y.2001) ("The FDCPA does not prohibit debt collectors from encouraging consumers to pay their debts. It was created to protect consumers from harassing and unscrupulous practices of debt collectors, including misleading representations.").

Foti v. NCO Financial Systems, Inc.
424 F.Supp.2d 643
Mar 25, 2006

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