Telephone Messaging Case Certified for Interlocutory Appeal

Perhaps the Eastern District of New York has finally had enough of the telephone messaging conundrum.  Last week, the Eastern District of New York certified Halberstam v. Global Credit and Collection Corp., 2016 U.S. Dist. LEXIS 3567 (S.D.N.Y. Jan. 11, 2016) for immediate appeal.  As we reported in an earlier post, in Halberstam, the debt collector’s call was answered by a third party who asked if he could take a message.  The debt collector responded as follows:

Name is Eric Panganiban.  Callback number is 1-866-277-1877…direct extension is 6929.  Regarding a personal business matter.

The issue as couched by the court was whether under the Fair Debt Collection Practices Act, a debt collector, whose telephone call to a debtor is answered by a third party, may leave his name and number for the debtor to return the call, without disclosing that he is a debt collector, or whether the debt collector must refrain from leaving callback information and attempt the call at a later time.  The court concluded that the message violated the FDCPA’s general prohibition on third party communications.   In so holding, the court determined that soliciting a call back is a “communication in connection with the collection of a debt.”  “In our case…the only purpose of…[the] call was quite obviously to collect the debt, and anyone, regardless of their level of sophistication, who knew that the call came from a collection firm would understand that purpose.” Halberstam at *9-10. 

Last week, the district court certified the matter for an interlocutory appeal to the Second Circuit.  In doing so, the court recognized the potential impact the issue has for the entire debt collection industry and noted that the defendant’s policy for leaving messages is a standard practice of many collection agencies to leave nonspecific call-back messages with third parties.  Additionally, the court appeared troubled that the “technical violation at issue will likely have a far greater benefit to the plaintiffs’ FDCPA bar than it will have in protecting debtors from abusive debt collection practices.”