Voicemails from Debt Collectors

The Fair Debt Collection Practice Act (FDCPA) was enacted to “eliminate abusive debt collection practices.” The FDCPA applies to, among other things, communications with the consumer, including voicemails.

If you have received a voicemail from a debt collector, these are some questions a consumer should consider:

• Did the voice message disclose the debt collectors’ identity – his/her name, employer and phone number and a statement that the purpose of the call was to collect a debt?

• Did the voicemail disclose the identity of the consumer so the debt collectors are sure they have the right phone number?

• Did the consumer authorize the debt collector to speak with a third party? (If so, probably no FDCPA violation).

• Was the message limited to determining the debtor’ residence, telephone number or the debtor’ place of employment? (With some exceptions, this is a permitted third party communication and so probably no FDCPA violation).

If you have received a voicemail from a debt collector and it does not comply with the above requirement or just think it may be improper, give us a call and let us hear the message to make sure it complies with the law.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

• Stop Collection Harassment;
or
• Consumer Rights Orlando

Frequently Asked Questions about the FDCPA

Frequently Asked Questions

Q. What is the Fair Debt Collection Practices Act?

A. The Fair Debt Collection Practices Act ("FDCPA") requires that debt collectors treat you fairly by prohibiting certain methods of debt collection.

Q. What debts are covered?

A. Personal, family, and household debts are covered under the Act.  This includes money owed for the purchase of an automobile, for medical care, or for charge accounts.

Q. Who is a debt collector under the FDCPA?

A. A debt collector is any person, other than the creditor, who regularly collects debts owed to others. Under a 1986 amendment to the Fair Debt Collection Practices Act, this includes attorneys who collect debts on a regular basis.

Q. Who is a debt collector under the Florida Consumer Collection Practices Act?

A. Under Florida law, the definition of a "debt collector" is much broader than under its federal counterpart. Under the Florida Consumer Collection Practices Act (“FCCPA”), a “debt collector” is defined as: “any person who uses any instrumentality of commerce within this state, . . . in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The term ’debt collector’ includes any creditor who, in the process of collecting her or his own debts, uses any name other than her or his own which would indicate that a third person is collecting or attempting to collect such debts.”

So, the FCCPA applies to any person or persons, collecting his/her own debts. Under that broad definition, the FCCPA would apply to a law or accounting firm attempting to collect its own fees, as well as the employees engaged in such collection activity on the law firm's behalf.

Q. How may a debt collector contact you?

A.  A collector may contact you in person, by mail, telephone, telegram, or FAX. However, a debt collector may not contact you at unreasonable times or places, such as before 8 a.m. or after 9 p.m., unless you agree. A debt collector also may not contact you at work if the collector knows that your employer disapproves.

Q. Can you stop a debt collector from contacting you?

A. You may stop a collector from contacting you by writing a letter to the collection agency telling them to stop.  Once the agency receives your letter, they may not contact you again except to say there will be no further contact. Another exception is that the agency may notify you if the debt collector or creditor intends to take some specific action.

Q. May a debt collector contact any person other than you concerning your debt?

A. If you have an attorney, the debt collector may not contact anyone other than your attorney. If you do not have an attorney, a collector may contact other people, but only to find out where you live and work. Collectors usually are prohibited from contacting such permissible third parties more than one. In most cases, the collector is not permitted to tell anyone other than you and your attorney that you owe money.

Q. What is the debt collector required to tell you about the debt?

A.  Within five days after you are first contacted, the collector must send you a written notice telling you the money you owe; the name of the creditor to whom you owe the money; and what action to take if you believe you do not owe the money.

Q. May a debt collector continue to contact you if you believe you do not owe money?

A.  A debt collector may not contact you if, within 30 days after you are first contacted, you send the collection agency a letter stating you do not owe money. However, a collector can renew collection activities if you are sent proof of the debt, such as a copy of a bill for the amount owed.

Q.  What control do you have over payment of debts?

A.  If you owe more than one debt, any payment you make must be applied to the debt you indicate. A debt collector may not apply a payment to any debt you believe you do not owe.

Q.  What can you do if you believe a debt collector violated the law?

A.  You have the right to sue a collector in a state or federal court within one year from the date you believe the law was violated. If your win, you may recover money for the damages you suffered. Court costs and attorney's fees also can be recovered.

For more information about the Fair Debt Collection Practices Act, or, its state law counterpart, the Florida Consumer Collection Practices Act, visit us at:

• Stop Collection Harassment;
or
• Consumer Rights Orlando

The twists and turns of the Colorado River Doctrine

A Property Owners Association (Alaqua) retained a law firm to recover delinquent homeowner association maintenance assessments from plaintiff. The law firm mailed to plaintiff a letter demanding payment of the assessments, interest, and other charges.  The debt remained unpaid so the law firm sued the plaintiff Acosta on behalf of Alaqua in Florida state court to foreclose a lien on Acosta’s property or recover a money judgment (the “State Action”).  Alaqua later replaced the first law firm with James A. Gustino and his law firm to litigate the State Action.

While the State Action was pending against him, Acosta filed suit in federal court alleging that Alaqua, the first law firm and Gustino, violated, among other state and federal statutes, the Fair Debt Collection Practices Act in attempting to collect the assessments.  The defendants filed a motion to dismiss the amended complaint.  In the alternative, the motion asked the court to stay the action pursuant to the Colorado Riverabstention doctrine pending the outcome of the State Action.

The district court granted the motion insofar as it sought dismissal pursuant to theColorado River doctrine and dismissed the case without prejudice.  Acosta appealed and the Court of Appeals framed the issue as having to decide whether the federal and state proceedings were parallel for purposes of the Colorado River abstention doctrine.   The court concluded they were not parallel and reversed the trial court’s dismissal, without prejudice.

The Court first emphasized the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.  It stated that “The doctrine of abstention . . . is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”   Furthermore, the Court stated, that the threshold requirement for application of the Colorado River doctrine is that the federal and state cases be sufficiently parallel.    In other words, whether the cases “involve substantially the same parties and substantially the same issues.”   And, if the federal and state proceedings are not parallel, then, the Court opined, that the Colorado River doctrine should not apply.

On appeal, plaintiff, Acosta, argued that the district court erred by applying theColorado River doctrine because the State Action and his federal suit were not parallel because, the two actions involve different parties because the federal action is against Alaqua’s attorneys, not Alaqua.   He also maintained that the two cases presented different legal issues.

The Court of Appeals stated that the district court’s decision depended on its conclusion that if the State Action were decided against Acosta, he would have no viable claims in federal court.  However, the appellate Court observed that the key to the federal case is not only whether the debt was enforceable but also whether the defendants’ conduct when collecting that debt complied with the Fair Debt Collection Practices Act.   This, according to the reviewing panel, raises some doubt about whether resolution of the State Action would decide the FDCPA issues along with the other federal claims that were brought.  Based on its analysis, the Court of Appeals reversed the trial court’s order dismissing the complaint, without prejudice. 

Acosta v. Gustino, 2012 U.S. App. LEXIS 11339 (11th Cir. Fla. June 6, 2012)

Dunning letter from attorney falls under Fair Debt Collection Practice Act

Before the creditor sends a delinquent account to a collection agency, the creditor can send a dunning notice to a consumer. However, when a lawyer attempts to send a similar communication, according to recent case law, it can be considered an attempt at debt collection under the Fair Debt Collection Practices Act.


When Izell and Raven Reese defaulted on a loan obtained from Provident Funding Associates, L.P. after giving the lender their mortgage, the lender's law firm sent a letter looking for the missed payment and threatening to foreclose on the Reeses' home if the sum was not attained, the written opinion of the court explained. The Reeses claimed this was an attempt at a collection and violated the Fair Debt Collection Practices Act, though a district court disagreed.


A panel of judges in the Eleventh Circuit court of appeals reversed the district court's ruling. The written opinion of the court cited the fact that the letter sent to the Reeses featured the disclaimer reading "This law firm may be attempting to collect a debt on behalf of the above-referenced lender."


The court said the Reeses were correct in asserting there were misleading representations in violation of Section 807 of the FDCPA. According to the opinion, the couple owed a debt to the company, so asking for repayment essentially made the lawyers debt collectors under the FDCPA.


Lawyers may want to cite this case and take care in the future to abide by the FDCPA when contacting any individual who has the possibility of owing a debt to the attorney's client.


Reese v. Ellis, 2012 U.S. App. LEXIS 8839 (11th Cir. Ga. May 1, 2012).

Post Discharge Collection Activities

Many debtors who file for bankruptcy and obtain a discharge still receive collection letters or calls from creditors.  This is a clear violation of the FDCPA.  It is anticipated that most debt collectors will claim as a defense to a FDCPA that the collection activities were a result of a bona fide error in that they had no actual knowledge of the bankruptcy.

Hyman v. Tate,  362 F.3d 965, 968 (7th Cir. 2004) holds that (a) an understanding with creditor-clients that they will not knowingly refer accounts subject to a bankruptcy filing and will notify the debt collector if they afterwards discover the fact together with (b) prompt cessation of collection efforts upon notification of a bankruptcy filing are procedures reasonably adapted to avoid errors of this kind.

In Bacelli v. MFB, Inc., 729 F. Supp. 2d 1328 (M.D. Fla. 2010), the debt collector claimed that it had no actual knowledge of the debtor's bankruptcy which fact was undisputed.   However, the Court denied summary judgment on the bona fide error defense because the debt collector/defendant presented no evidence of an agreement or understanding with the original creditor that it would not to refer accounts in bankruptcy and no evidence that its reliance on the original creditor had proved effective in avoiding errors in the past.   Lastly, the Court stated that the debt collector/defendant presented no evidence whatsoever to show that its reliance on the original creditor about knowledge of the plaintiff's bankruptcy discharge was reasonable.