A debt collector that technically violated the Telephone Consumer Protection Act in order to comply with the Fair Debt Collection Practices Act cannot be liable under the FDCPA, a Pennsylvania federal court judge has ruled.
Oxford Law called Ninouska Gomez and left a message on her phone using a prerecorded voice. The message stated in part:
“[P]lease hang up or disconnect. If you are Gomez, Vinouish please continue to listen to this message. There will now be a three-second pause in this message. By continuing to listen to this message you acknowledge that you are Gomez, Vinouish. You should listen to this message in private as it contains personal and private information. There will now be a short pause in this message to allow you to listen to this message in private.
“This is Casey Fox from Oxford Law, LLC. This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please contact me at 215-526-2600. Thank you.”
Gomez filed a single-count complaint contending that the call violated the FDCPA. Specifically, she pointed to 15 U.S.C. Section 1692e(5), which states that a debt collector runs afoul of the statute when it “threat[ens] to take any action that cannot legally be taken or that is not intended to be taken.”
Two distinct types of conduct are prohibited by Section 1692e(5), Gomez told the court: threats to take action that cannot be legally taken and illegal acts. She alleged that Oxford Law’s call violated the TCPA, which in turn made it an illegal act under the FDCPA.
The TCPA requires that calls using a prerecorded voice must identify the business, individual or other entity that is responsible for the incoming call “at the beginning of the message.” Because the defendant failed to identify himself until the seventh sentence of the message, Gomez said the call was an illegal act under Section 1692e(5) that occurred during the collection of a debt.
U.S. District Court Judge James M. Munley disagreed for two reasons.
“First, section 1692e(5)’s plain meaning applies only to threats to take any action that cannot legally be taken or that is not intended to be taken. Here, the message is devoid of any threat,” the court said. “Defendant is not threatening to institute a debt collection lawsuit. Defendant is not threatening to garnish plaintiff’s wages. Rather, defendant is asking the plaintiff to call it back.”
Secondly, even if the court were willing to construe Section 1692e(5) to include both threats and illegal acts, “defendant’s technical violation of the TCPA – the illegal act – is not the type of illegal act the FDCPA prohibits,” Judge Munley wrote, and “no court has extended Section 1692e(5)’s ‘illegal act’ language to a technical violation of another law.”
The court cited numerous federal court decisions that held that the filing of a lawsuit, moving for default judgment absent the legal authority to do so, or filing and serving a writ of garnishment, are deemed the illegal acts within the meaning of 1692e(5).
The court denied the plaintiff’s motion for summary judgment and granted Oxford Law’s motion for judgment on the pleadings.
To read the order in Gomez v. Oxford Law, click here.
Why it matters: The court refused to find that a TCPA violation could trigger liability under the FDCPA. Judge Munley emphasized that the defendant’s message “is at most a technical violation” of the TCPA because the introductory comments at the beginning of the message were apparently an attempt to ensure that no one but the debtor would listen to the message as required by the FDCPA. “Thus, the defendant ‘violated’ the TCPA to comply with the FDCPA,” the court wrote in a footnote.