Antitrust Law Daily Wrap Up, PRIVACY—M.D. Pa.: Debt collection message was at most a technical violation of TCPA, did not violate FDCPA, (Jan 6, 2015)

By Jody Coultas, J.D.

A consumer’s Fair Debt Collection Practices Act (FDCPA) claims against a publisher that left a prerecorded message attempting to collect a debt could not be based on a claim that the message violated the Telephone Consumer Protection Act (TCPA), the federal district court in Scranton, Pennsylvania has held (Gomez v. Oxford Law, LLC, January 5, 2015, Munley, J.).

Oxford Law attempted to collect a debt from the consumer as part of a telephone contract between the parties. Oxford Law called and left a message using a prerecorded voice. The consumer argued the message violated the FDCPA.

A debt collector violates the FDCPA when it threatens to take any action that cannot legally be taken or that is not intended to be taken. The consumer argued that the FDCPA prohibits debt collectors from threatening to take action that cannot be legally taken and illegal acts. Here, the consumer did not assert that the message was a threat to take action that cannot legally be taken, but that Oxford Law engaged in an illegal act because the message violated the TCPA.

The TCPA prohibits any entity from placing a telephone call using a prerecorded voice unless the caller states at the beginning of the message the identity of the business, individual, or other entity that is responsible for the incoming call. The prerecorded message in this case was, at most, a technical violation of the TCPA, since it included introductory comments complying with the FDCPA rather than stating the caller’s identity at the beginning of the message.

The message left by Oxford Law did not violate the FDCPA, according to the court. No court has extended the FDCPA “illegal act” language to a technical violation of another law. Liability under that section arises when a debt collector files and serves a writ of garnishment, or moves for default judgment absent the legal authority to do so.

The case is No. 3:14cv477.

Attorneys: Carlo Sabatini (Sabatini Law Firm, LLC) for Ninouska Gomez. Michael F. Ratchford (Edwin A. Abrahamsen & Associates) for Oxford Law, LLC.

Companies: Oxford Law, LLC

Cases: ConsumerProtection Privacy PennsylvaniaNews