Recording Phone Calls - 2-Party Consent

OK guys, I've got an issue with a party whose telephone conversation with me I recorded. Believe it or not, it wasn't with a CA; however, I'm hoping anyone that lives in a 2-party state can learn from it and find it useful when dealing with CA's.

I live in Florida, a 2-party state, and recently had an awful experience with the attorney's office that represented me in an FDCPA lawsuit back in 2007. The CA I sued marked some debts as "satisfied and/or released" as part of a agreement they had with me, then turned around and sold those debts to other CA's. I contacted the attorney's office that represented me, asking the paralegal I dealt with back in 2007, what exactly does it mean "satisfied and/or released" in the agreement. The woman kept repeating for me to send a DV and C&d letter to the new CA, completely ignoring my frequently asking what it means by "satisfied and/or released" in the agreement back in 2007.

I finally asked to speak to someone else as I didn't feel she was either understanding my question or even acknowledging it. She then got hysterical, started yelling at me, and hung up the phone on me.

Keep in mind, the is an attorney's office that sues CA's for that exact same type of behavior.

Once I finally got her on the phone again, I started off the conversation by telling her I was recording the call, as I am supposed to do by Florida law. I wanted to cover myself so she couldn't say I was the one that got hysterical and started yelling (which she did, but that's a whole other story.) by having a record of any communication I had with her after that initial call. Unfortunately, I had not had the presence of mind to have recorded that first call; I didn't think I needed to. She neither acknowledged that I said this, or even objected to it in the entire phone conversation I had with her. It lasted several minutes.

Again, I made this statement at the very start of the call right after she answered and before we started talking about anything else. And I got it on the recording I said this.

Well, I ended up filing a complaint with the Florida Bar concerning this attorney. The woman I spoke with and recorded, the attorney's employee and paralegal, claims in a statement she included with the attorney's response to my complaint that she is aware of Florida law concerning recording phone calls and I have broken the law when I recorded that last phone conversation I had with her.

Did I? As I said, and you can hear it plainly in the recording, I advised her at the start of the call what I was doing. She didn't object and only waits until I file a complaint with the Florida Bar to claim she didn't give her consent and I somehow broke the law.

Now everything I have read on the Internet states I am in compliance with 2-party disclosure by advising her at the start of the call that it was being recorded and by having that as part of the recording.

What do you guys think?

If it is clearly stated on the recording that you were recording her and she did not object, she was in effect giving you permission.

The law office will probably offer to "not pursue the violation" if you agree to drop the complaint. Don't. If you hear from them again immediately tell them that you are recording the call and they will probably go away.
If you are charged you can use the defense of implied consent based on the fact that she continued the conversation.

You can also ammend your complaint with the state bar. They would probably also tell you if you are in violation.

Yeah, after I got the response from the attorney's office to my complaint with the Florida Bar, I had the opportunity to submit a rebuttal.

Which I did.

I advised I would be more than happy to submit a copy of the recorded phone call to the Florida Bar, on their request, and they could hear that I advised the woman at the start of the call I was recording it and they would hear nothing in the way of her stating she did not wish the call to be recorded. I also asked for the investigator at the Florida Bar to make a determination, based on my statement and the copy of the recording, whether I did violate the law so I could be sure.

I didn't already forward the copy of the phone call to them as they ask to keep all "evidence" submitted to a minimum and if copies are needed that are referenced in complaints they will request it. Besides, it's now on my PC and I'm not sure how I could get it to them.

E-mail?

What the attorney's office is trying to do is portray me as a raving lunatic in their response in order to draw attention away from the fact they never even answered the core complaints I initially filed with the Florida Bar. I also pointed that out in my rebuttal.

Ron--

how ya been, man???

you covered exactly what the law requires you to cover--think about it....dont the CA's always have the recorded messages when you call them, saying "telephone calls may be recorded"? They do not give you any option there--they tell you so that you are fairly warned. you did more than say 'this may be recorded', you said "I am recording this phone call". I couldnt imagine them telling you that you actually were in the wrong.

Anyways, stick to your guns on this one--dont let them settle the matter for anything. They treated you the same way that CA's treat people, and they dont have that right. Their entire job is to hear your concerns and address them--if they cannot handle it then they are in the wrong business.

Thanks all for your input.

That's pretty much how I saw it too; I in no way violated the 2-party consent law because I informed her at the start of the call it was being recorded. I just wanted to make sure others saw it that way too. As I say, I'm no expert on any of these laws, so there's always a chance I have interpreted them incorrectly.

I try applying "common sense" whenever I try reading and interpreting laws; however, I've quickly learned "common sense" doesn't always come into play.

skydivr7673, you are so right! Anyone that knows me can say that's one thing I am, when I feel I'm in the right about something, and that's stubborn as heck! So I am definitely going to be sticking to my guns on this one.

I have only to wait to hear back from the Florida Bar regarding my rebuttal to the attorney's response to my complaint now. I'll keep you all posted as to how it works out.

All i can offer anyone else in the way of advice, as I have always done on this site since I first came here: Stand up for yourself! If you don't look after your rights and try to avoid getting them trampled on, no one else will.

That doesn't just apply to collection agencies violating the FDCPA, either.

I am trying to find out if I can record calls with an attorney or anyone else I talk to about a debt. I read somewhere that I can without saying something as long I am part of the conversation? Is this true or do I have to say " I am recording this call"

It's always best to let the other party know you are recording, regardless of whether it's a 1 party or a 2 party state, if only to cover your bases.

Your case is a 50/50. Remember the 2nd party which you are recording has to say yes to the recording. Any phone call recording done after giving knowledge and the 2nd party continues talking without saying yes to the recording is not consent to record. The person has to speak the words yes or no. Common scene will be if the person continues talking after warned that is consent. But in the eyes of the law it might not just be that way. The person in your case didn't say yes but rather kept talking by law that’s not consent but then again it might be if argued really good; that’s why it a 50/50. I hope everything goes to your favor.

Click the link below regarding United States Telephone Recording Laws.
http://www.callcorder.com/phone-reco...aw-america.htm

Ron, ignore that post, as it is false.

Let's all think about this for a minute--how many times have any of us been on the phone with a debt collector? Come on, we all know the drill---you call them and a prerecorded voice says "thank you for calling XYZ debt collectors, this call may be recorded...", right? That prerecorded message has always satisfied the requirements of the law when it comes to them, so how could it be different for us?

Simply put, the example that the debt collectors use--the prerecorded message--has stood up in court as an acceptable disclosure. In fact, you can bet your last dollar that the only reason why they have that prerecorded message is because of the law's requirement in some places that such a disclosure be made. If it werent for the law, they would not have wasted their time. Nowhere in those messages do they say "if you do not wish to be recorded, then hang up and dont call us". Nowhere in there does it ask for you to voice your consent. And the law and the courts have already backed those prerecorded disclosures as being adequate enough for the law's requirements.

Ron what you say is very true. But the reason why companies and debt collectors have that prerecorded message and makes it legal. It’s because that of a business. For civilians like me and you we need that consent or give it. Just like a companies and debt Collection Company needs consent of their employee to record a non business (privet/personal) call. Point is businesses have special right that we don’t. Also when we call a business we have the right to say that we don’t want this call to be recorded. The option of “opting out.”. So see the differences. I did my research of every point. U should too. so the statement below is true not false.

Your case is a 50/50. Remember the 2nd party which you are recording has to say yes to the recording. Any phone call recording done after giving knowledge and the 2nd party continues talking without saying yes to the recording is not consent to record. The person has to speak the words yes or no. Common scene will be if the person continues talking after warned that is consent. But in the eyes of the law it might not just be that way. The person in your case didn't say yes but rather kept talking by law that’s not consent but then again it might be if argued really good; that’s why it a 50/50. I hope everything goes to your favor.

Ron, once again, ignore THAT post as well.....because it is also false, and for two reasons.

First off, the federal law is ONE-PARTY. That means that according to the FCC, you dont even need to tell the other party youre recording, so why on earth would you need to get the other person to physically say "yes" when you dont even need to ask them in the first place? The one and only reason why you need to ask them in some states is because of STATE LAWS, not federal. And, in the case of state laws, every state has its own, so there cannot be an accurate statement like the one 'guest' just tried to make. In fact, the Florida statute makes no mention of a need for both parties to actually give positive consent by saying "yes" on the tape. So this one is, once again, wrong.

Second, 'guest' clearly needs to go back and do more research.....here is a quote from the FCC website:

In other words, 'guest', your whole story about "we're civilians, we have to do more than a company" is pure BS.

Further down the FCC web page, we see this:

According to that info, as long as you provided verbal notification at the beginning of the call to inform the other person that it was being recorded, REGARDLESS OF WHETHER OR NOT THEY RESPONDED WITH AN ANSWER, you have met the FCC guidelines for interstate calls.

"guest", I think it's time to go back and do some more research.

Yep, and the beep is the best because they know very well what that means.

Also, you are recording the call to produce as evidence, you are not intercepting someone else's call, which a business has an exception to do (such as a manager listening to a trainee's phone call or random monitoring). If you let anyone except for a court of law listen to that recording, then you may possibly have a problem.

I think that may be the source of guest's confusion.

Yes it true. But thing to remember in a 2 PARTY STATE like Florida. Verbal consent is needed. If the notification is given and the 2nd party continues talking that is not verbal consent. Federal law does not apply in Florida. So here in Florida the 2 party consent law we need the verbal consent. And businesses do have rights that we don't. We as civilians need verbal consent to record in a 2 party state. Businesses don’t; that why they get off by saying the call maybe recorded or monitored for train or quality purposes. They don’t need are consent nether in state or federal; but we do. Remember you can always tell business you don’t what the call recorded (opt-out). Yes no where in the state or federal law says we need verbal consent; but its does not say continuing to talk is consent. The remark “this call will be recorded or this call is being recorded” is a form of a question and notification. If not answer buy saying okay or I understand then it is illegal to record the conversation. Again federal law does not apply in the 15 state’s that has the 2 party consent laws. If your calling a 1 party consent law (federal) and your calling from a 2 party consent law (state) its unclear which law to go by. Always use the 2 party consent law unless if both parties live in a 1 party consent law (federal)

Yes it true. But thing to remember in a 2 PARTY STATE like Florida. Verbal consent is needed. If the notification is given and the 2nd party continues talking that is not verbal consent. Federal law does not apply in Florida. So here in Florida the 2 party consent law we need the verbal consent. And businesses do have rights that we don't. We as civilians need verbal consent to record in a 2 party state. Businesses don’t; that why they get off by saying the call maybe recorded or monitored for train or quality purposes. They don’t need are consent nether in state or federal; but we do. Remember you can always tell business you don’t what the call recorded (opt-out). Yes no where in the state or federal law says we need verbal consent; but its does not say continuing to talk is consent. The remark “this call will be recorded or this call is being recorded” is a form of a question and notification. If not answer buy saying okay or I understand then it is illegal to record the conversation. Again federal law does not apply in the 15 state’s that has the 2 party consent laws. If your calling a 1 party consent law (federal) and your calling from a 2 party consent law (state) its unclear which law to go by. Always use the 2 party consent law unless if both parties live in a 1 party consent law (federal)