Foti, Zortman & FDCPA Compliance: A Refresher Course

Bemis LogoWhile at CLLA recently, I had the good fortune to speak with Gary Bemis, a National List attorney member, and David Greenberg from his office who is a 40 year veteran of the collection industry. They told me their firm, Law Offices of Gary A. Bemis, has a blog on their website, and they offered to let us repost any of their topics that may be of interest to our NL Insider audience.

Law Offices of Gary A. Bemis is a firm dedicated to commercial and consumer debt collections. It was established in 1995 in Southern California, and is backed with over 100 years of experience in civil litigation, commercial collections, and consumer collections. If you go to their website and click on News, you’ll find recent blog posts and an archive of posts going back to 2013.

A valuable post that caught my eye is titled What Is a Foti Message within FDCPA Compliance. What follows are only what I consider to be the major points in the post. You’ll want to read the entire post here. 

What Is a Foti Message within FDCPA Compliance.

The FDCPA was enacted in 1978, before the Internet, or even cell phones….This article discusses the rather surprising issue of voice mail messages and FDCPA compliance.

The Voice Mail Debacle

One of the thorniest [compliance] issues is when and how to leave a voice mail message for a consumer debtor…. Leaving a voice mail message has been repeatedly and unanimously held by the courts to be a “communication” that requires a debt collector to identify himself. However, leaving a message that identifies the nature of the call could result in a violation by revealing the information to a third party.

Foti

In response to this dilemma, collection companies tried some innovative solutions….When leaving a Foti message, the collector…states the name of the debtor and that this is a private matter, instructs the listener to hang up if the listener is not the named recipient…and then gives the information about the debt and the debt collector.

The Federal Trade Commission filed a complaint against NCO Financial Systems, Inc., in 2013, alleging that voice mail messages following the Foti strategy violated the prohibition on third party disclosure. The FTC complaint ended in a consent decree, and so no new case law was generated.

Zortman

[In] another famous case, Zortman v. J.C. Christensen & Assocs., the court considered a voice mail that had been left on the consumer’s cell phone….The consumer leant her cell phone to her children, who listened to the message from the debt collector. The consumer sued, claiming the message violated the FDCPA prohibition on third-party disclosure.

* * * * *

The complete blog contains the voice mail message and explains why this case turned out favorably for the collector. Again, you’ll want to read the entire post here. Thanks to Gary Bemis and David Greenberg for their willingness to share this informative blog post and others with our readers.

Leslie Herr, National List



Categories: Business Relationships, Compliance, Conferences, Guest Blogs

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