Is this situation against FDCPA regulations

Did they disclose information about your debt, or the fact that you owed a debt?

As long as no personal onfo was given out, it is legal for them to do what they did.

Simce posting the inquiry here, I did some research and found case law about the exact same situation.
According the case I found, CA's can only contact a neighbor to verify a debtor's location.
My neighbor had already verified my location in that I lived across the street from her.
The CA also gave my neighbor her contact number. I don't believe agents are allowed to disclose that they are respresentives of a Collection agency.
By giving out her number, she did just that.

That section of the FDCAP expressly forbids communication with 3rd parties for any other reason except those specified. I don't see a regulation that grants a CA permission to contact a debtor's neighbor for the purpose of asking the neighbor deliver a message.


[center:b13243aed9]The following is what I found. [/center:b13243aed9]



[quote][size=6][center:b13243aed9]Case Law:[/center:b13243aed9][/size]

West v. Nationwide Credit, Inc.
998 F.Supp. 642
W.D.N.C.,1998.
Mar 09, 1998
998 F.Supp. 642


QUOTE
Consumer's allegations that debt collector in connection with the collection of consumer's debt, communicated with his neighbors in relation to his debt, and that the communication was not for the purpose of obtaining location information, were sufficient to state a claim under the Fair Debt Collection Practices Act (FDCPA); debt collector gave consumer's neighbors his name and telephone number, told them the matter was "very important," and asked them to have consumer return telephone call. Consumer Credit Protection Act, ???????? 803(2), 805( b ), as amended, 15 U.S.C.A. ???????? 1692a(2), 1692c ( b ).

ORDER

MCKNIGHT, United States Magistrate Judge.

This matter is before the court for ruling on Defendants' motion to dismiss, filed February 2, 1998.

I. Factual and Procedural Background

This is an action brought by Plaintiff under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. ????????? 1692, et. seq., and North Carolina law (N.C. Gen.Stat. ???? 58-70-90 et. seq., and N.C. Gen.Stat. ???? 75-1.1). In his complaint, Plaintiff makes the following allegations, which must be taken as true for purposes of Defendant's motion to dismiss. Prior to September 1997, Plaintiff became indebted to American Express on a credit card and he defaulted on his payments. American Express assigned Plaintiff's account to Nationwide Credit ("Nationwide") for collection.

On or about October 6, 1997, Scott Beaulieu, who was an employee of Nationwide, telephoned Plaintiff's neighbor. Mr. Beaulieu gave Plaintiff's neighbor his name and telephone number and asked the neighbor to have Plaintiff call him. In addition, Mr. Beaulieu told the neighbor that the matter was "very important."

Plaintiff contends that Mr. Beaulieu's telephone call to Plaintiff's neighbor violated the FDCPA and North Carolina law. According to Plaintiff, Mr. Beaulieu's telephone call contained "false or misleading" information and was an improper communication with a third party.

II. Analysis
Defendants move the court to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12( b )(6) for failure to state a claim upon which relief can be granted. In addition, Mr. Beaulieu has moved to dismiss Plaintiff's action against him pursuant to Fed.R.Civ.P. 12( b )(2) and ( b )(5) on the grounds that he has not been served with the summons and complaint.

A. Rule 12( b )(6) standard
In deciding a motion to dismiss, the court accepts as true the facts alleged in the plaintiff's complaint. Loe v. Armistead, 582 F.2d 1291, 1292 (4th Cir.1978), cert. denied, 446 U.S. 928, 100 S.Ct. 1865, 64 L.Ed.2d 281(1980); see also Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991) (in testing the legal sufficiency of a complaint, the court "construe [s] the factual allegations in the light most favorable to plaintiff"). A complaint, no matter how unartfully pleaded, must survive a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Loe, 582 F.2d at 1295 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

B. Plaintiff's FDCPA claim
[1] Defendants contend that Plaintiff's FDCPA claim should be dismissed because Mr. Beaulieu's alleged telephone call to Plaintiff's neighbor did not violate the FDCPA. The FDCPA was enacted by Congress in 1977 to eliminate abusive debt collection practices by debt collectors. 15 U.S.C. ???? 1692a; Dorsey v. Morgan, 760 F.Supp. 509, 512 (D.Md.1991). The statute *644 regulates both communications and debt collection practices utilized by debt collectors in the collection of debts from consumers. See 15 U.S .C. ???? 1692a, et. seq. Section 1692c( b ) of the FDCPA regulates communications by debt collectors with third parties. This section provides as follows:

[e]xcept as provided in section 1692b of this title [which permits certain third party communications for the purpose of acquiring location information], 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.
15 U.S.C. ???? 1692c( b ) (emphasis added). The term "communication" is defined as "the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. ???? 1692a(2).

In the present case, Mr. Beaulieu called Plaintiff's neighbor and informed him that he was calling about a "very important" matter. Defendants contend that this communication did not violate section 1692c( b ) because Mr. Beaulieu did not actually convey any information about Plaintiff's debt to the neighbor. Defendants argue that in order for there to be a violation of section 1692c( b ), the debt collector must convey some information about the debt to the third party.

Not surprisingly, Plaintiff does not agree with Defendants' narrow interpretation of section 1692c( b ). Plaintiff contends that any communication that relates to a debt violates section 1692c( b ). Plaintiff asserts that the term "communication" must be broadly interpreted in order to give the entire act meaning. Because Mr. Beaulieu's communication with Plaintiff's neighbor related to a debt, Plaintiff contends that such communication was unlawful.

In interpreting the meaning of a statute, it is well settled that "[t]he 'plain meaning' of statutory language controls its construction." Summit Inv. & Dev. Corp. v. Leroux, 69 F.3d 608, 610 (1st Cir.1995). The ordinary meaning of words expresses the underlying legislative purpose of the statute. Laracuente v. Chase Manhattan Bank, 891 F.2d 17, 23 (1st Cir.1989). The Supreme Court has stated that " '(a) statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.' " United States v. Campos-Serrano, 404 U.S. 293, 301 n. 14, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971) (quoting Washington Market Co. v. Hoffman 101 U.S. 112, 115-16, 25 L.Ed. 782 (1879)). All provisions of the statute must be given force, and provisions must be interpreted so as not to derogate from other provisions of the whole statute. United States v. Ramirez-Ferrer, 82 F.3d 1131 (1st Cir.1996).

In the present case, Congress has specifically defined a "communication" under section 1692c( b ) as "the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. ???? 1692a(2). The issue for this court to determine is whether Congress intended the phrase "information regarding a debt" to include the conveying of any information relating to a debt or whether Congress intended to limit the definition of this phrase to only those conversations where a debt collector actually discloses some information about a specific debt to a third party.

Applying the previously cited rules of statutory construction, the court first looks to the dictionary definition of the term "regarding." 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 for the term "regarding": "with respect to: concerning." Based on these definitions, the court believes the ordinary meaning of the term "regarding" is consistent with the broader interpretation advocated by Plaintiff.

[2] Moreover, a review of section 1692c( b ), in connection with the entire statutory scheme, indicates that Congress intended to broadly regulate contact between debt *645 collectors and third parties. As noted earlier, section 1692c( b ) prohibits a debt collector from "communicating" with a third party "[e]xcept as provided in section 1692b." 15 U.S.C. ???? 1692c( b ). Section 1692b allows a debt collector to communicate with third parties for the purpose of acquiring location information about a consumer as long as the debt collector follows specific guidelines, including "not stat[ing] that such consumer owes any debt." 15 U.S.C. ???? 1692b. If the court were to adopt Defendant's interpretation of section 1692c( b ) and construe the provision as only prohibiting third party communications in which some information about a debt is actually disclosed, section 1692b would be superfluous.

Under Defendants' narrow interpretation, debt collectors would be free under section 1692c( b ) to obtain location information from third parties and to otherwise communicate with third parties so long as the debt collectors do not reveal any information about a debt. If Congress had intended for the statute to be interpreted in this manner, it would not have drafted section 1692b. See United States v. Menasche, 348 U.S. 528, 538, 75 S.Ct. 513, 99 L.Ed. 615 (1955) ("It is our duty to give effect, if possible, to every clause and word of a statute, rather than to emasculate an entire section") (internal quotation omitted). Because a narrow interpretation of section 1692c( b ) would render other portions of the statute "superfluous", the court concludes that section 1692c( b ) should be broadly interpreted to prohibit a debt collector, in connection with the collection of any debt, from conveying any information relating to a debt to a third party (except for the purpose of obtaining location information as permitted under section 1692b ).

Construing the allegations in Plaintiff's complaint in the light most favorable to Plaintiff, see Schatz, 943 F.2d at 489, the court finds that Plaintiff has alleged that Mr. Beaulieu, in connection with the collection of Plaintiff's debt, communicated with a third party in relation to Plaintiff's debt, and that the communication was not for the purpose of obtaining location information. Based on this court's interpretation of section 1692c( b ), Plaintiff's allegations are sufficient to state a claim under the FDCPA.




IT IS THEREFORE ORDERED that Defendants' motion to dismiss is DENIED.
W.D.N.C.,1998.


A collection agency called my neighbor and asked her to take a message to me about a "Very important matter." Can they do that?
NO. The only reason a debt collector is allowed to contact your neighbor, relative, etc, per the FDCPA, is to obtain or verify "location information" about you. They are not allowed to discuss the debt. And they are not to use the neighbor as a messenger service, either!


QUOTE
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#804

???? 804. Acquisition of location information [15 USC 1692b]

Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall --

(1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;

(2) not state that such consumer owes any debt;

(3) not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;

(4) not communicate by post card;

(5) not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and

(6) after the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney's name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to the communication from the debt collector.


That section gives permission to the debt collector to contact 3rd parties for the exact reasons specified, and ONLY for those specific reasons. Next look at:


QUOTE
???? 805. Communication in connection with debt collection [15 USC 1692c]



( b ) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, 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 a 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.


That section expressly forbids communication with 3rd parties for any other reason except those specified.

Do you see anything in the FDCPA giving the CA permission to use friends, neighbors, relatives, co-workers, or carrier pigeons as THEIR OWN PERSONAL MESSENGERS???[/quote]

If it is not legal to use the term collection agency on the outside of a mailed envelpope it cannot be legal to tell a neighbor that you are a collection agency looking for their neighbor. Makes sense!

It would be illegal for a collection agency to misrepresent themselves. It's also illegal to ask a neighbor to take a message but there are entirely too many ways around that to get the neighbor to take a message without asking and making them think it was their idea to boot. They can say they are a collection agency and they must say they are if they are asked.

My suggestion would be to call and ask what it is about before your block finds out you are beeing skiptraced. It sounds like you have a collector looking for you who knows how to find people.

The good news in all of this is that they shouldn't contact the same neighbor again but they can move on to another one.

There was not a need for the CA to call a neighbor to verify my location in the first place.
The CA was fully aware of my location because she had been phoning my house. She had received my answering machine and heard a message that includes my name. My address is also listed on my credit report which includes the entry of a mortgage in both my husband's and my name.

Its clear she called my neighbor for the sole purpose of having her deliver a message.
I was not at home at the time my neighbor called to give me the message. There is no confusion about the purpose of the CA's call. My neighbor left a message on my answerer which clearly states the agent asked her to phone me and deliver a message.

I have since been in touch with the agent by mail correspondence.
But, If the situation was such, I failed to contact her, why would she feel compelled to phone another neighbor when the first neighbor had already verified my location by telling the CA that I live across the street.

I'm still looking for the fdcpa regulation that grants a CA permission to phone a debtor's neighbor with the sole intent of asking the neighbor to deliver a message. To deliver a message, may I add, to a location in which the CA was already well aware I reside at.


According the case law I posted, this is a no no.

Since they are aware of your location,I may lean towards this being a single violation.

I had an old credit card that was sent to Phillips & Cohen about 4 years ago. They had my good address & phone in their file, but never called me once. The only letter I got from them was addressed "TO THE ESTATE OF 'ME'." They thought I was dead, and they were trying to get my "estate" to pay. Funny thing is, I never told them that so I have no idea why they thought I died.

Anyway after about 2 months, they called my parents house and left a message on my parents answering maching something like "This message is for whoever is handling the financial affairs of the late , we're sorry for your loss but please call our office immediately so we can rectify this situation."

You can imagine my mom, who hadn't seen or heard from me in a few weeks, got that message and was hysterical. My dad called them back and really let them have it for leaving a message like that. Never heard a word from them afterwards...

Until I went to pay it off last year, the OC told me CA was handling it and I had to pay through the CA. When I called them, the collector kept wanting to make sure I was really me because they swore I was dead. Anway I settled with them and that was that.

But just goes to show the kinds of messages they will leave for other people...

Quote:

Had they ever had contact with you in which you verified and confirmed you identity? Or do they just get your answering machine all of the time?

Quote:

You are right. Once the debt collector knows how to contact you, they may not contact any third party at all.

debt collectors often do so, however, as a way of harassing debtors.

It is a violation to say it is a urgent matter when leaving a msg with a 3rd party, but it is NOT a violation to leave a generic msg with a 3rd party for a call back.