6th Circuit Court of Appeals Affirms Judgment in Favor of MS&S’s Client: Voicemail Message was not a “Communication”

On October 22, 2015, the 6th Circuit Court of Appeals affirmed the decision of the district court in favor of Van Ru Credit Corporation dismissing the complaint of William Brown III, with prejudice. In William Brown III v. Van Ru Credit Corporation, Brown alleged Van Ru violated the Fair Debt Collection Practices Act (“FDCPA”) by leaving a single telephone message on the general mailbox at Brown’s place of business, which stated as follows:

 “Good morning, my name is Kay and I’m calling from Van Ru Credit Corporation. If someone from the payroll department can please return my phone call my phone number is (877) 419-**** and the reference number is *****488; again my telephone number is (877) 419-5627 and reference number is *****488.”

After Brown claimed an employee at his business overheard the message, he filed a claim arguing that the message violated §1692c’s prohibition against third party disclosure.   In support of his position, Brown noted that the message included a reference number, Van Ru’s name, which included the term “credit”, and was directed towards “payroll.” All of these items of information, he argued, insinuated the message was related to debt collection. He further noted that the employee that heard the message knew from his own experience that Van Ru was a debt collector, and argued that that the Court should take this subjective knowledge into consideration when determining whether a message was an actionable communication.

The Sixth Circuit disagreed. In the Court’s opinion, Judge Rogers wrote, “[a]n employee of Brown’s business who hears this message would understand it to concern Brown’s debt only in the most exceptional of circumstances.”  The Court went on to state that even though a third party “may have guessed that Van Ru’s voicemail related to Brown’s debt does not mean that the voicemail conveyed this information or that it could reasonably be construed to do so. The purposes of the FDCPA are not served by taking into account conclusions drawn by third parties where debt collectors could not reasonably expect those third parties to draw such conclusions.” Because the message did not give the objective hearer enough information to infer that the subject of the call was debt collection, the Court affirmed the district court’s dismissal.

Notably, in reaching its decision the Sixth Circuit relied upon the Tenth Circuit’s decision in Marx v. General Revenue Corp., 668 F.3d 1174 (10th Cir. 2011) to support its holding. In Marx, the debtor challenged the use of a faxed employment verification sent to the debtor’s employer. Marx was one of the first cases to employ a common-sense analysis to determine that a communication was not actionable because it did not convey to the recipient that the subject of the communication involved a debt. This was a departure from broader approaches employed by prior courts, such as the approach used in the now famous case of Foti v. NCO Financial Systems, 424 F.Supp.2d 643, 653 (S.D.N.Y. 2006). Foti employed a broad definition of “communication” to find a voicemail actionable because it “advised the debtor that the matter required immediate attention, and provided a specific number to call to discuss the matter” even though the message did not indicate that the subject of the communication was debt collection. When viewed in light of Marx, the Brown decision could be read to indicate that courts have tired of the archaic rationale employed in Foti and are moving towards a more objective, common sense approach to the definition of communication. In this writer’s opinion, if a message is overheard by a third party and would not alert the objective hearer to the subject of the communication, it is not within the purview of the FDCPA, at least in the Sixth Circuit.

View the Opinion Here

Van Ru was represented by Nicole M. Strickler and Dana Perminas of Messer Strickler, Ltd.  For more information regarding this case or the FDCPA generally, contact Nicole Strickler at nstrickler@messerstrickler.com or 312-334-3442 or Dana Perminas at dperminas@messerstrickler.com or 312-334-3474.