A collector that calls your relatives without mentioning or implying a debt likely has not broken the third-party contact rule in Texas, but saying more can change that.
Under 15 U.S.C. § 1692a(2), a 'communication' requires conveying information regarding a debt, which at minimum means implying a debt exists; a call to a consumer's sister that disclosed only the collector's name and an 'important personal business matter' was not a communication, so it could not violate § 1692c(b).
- Case
- Fontana v. HOVG, LLC (d/b/a Bay Area Credit Service)
- Citation
- No. 20-30471 (5th Cir. Feb. 26, 2021)
- Court or agency
- U.S. Court of Appeals for the Fifth Circuit
- Date
- February 26, 2021
- Precedential
- Yes (published)
- Law
- FDCPA
Summary
A collector called a consumer's sister, gave the agency's name, called it an 'important personal business matter,' and asked her to have him call back. The Fifth Circuit held that naming a collector does not imply a debt, so the call was not a 'communication' and the § 1692c(b) claim failed.
Background
A representative of Bay Area Credit Service tried to reach Zachary Fontana about a medical debt. About ten minutes after an unanswered call to him, the representative called his sister. When she asked who was calling, the representative gave the company name, said it was “an important personal business matter,” asked to speak with his spouse, and left a call-back number. The sister passed the message on, and Fontana called a lawyer.
Fontana sued under 15 U.S.C. § 1692c(b), which bars collectors from communicating with third parties “in connection with the collection of any debt” without the consumer’s consent, except in limited situations such as getting location information. The Western District of Louisiana dismissed the case.
What the court held
The panel (Judges Elrod, Willett, and Engelhardt; opinion by Judge Jennifer Walker Elrod) affirmed.
The court started with a threshold question it had not decided before: what counts as a “communication.” The FDCPA defines it as “the conveying of information regarding a debt directly or indirectly to any person through any medium” (§ 1692a(2)). The smallest piece of information about a debt is its existence, so a message must at least imply that a debt exists.
Here, the representative never mentioned a debt and described the call as personal business. The company name alone did not count: “conveying information about a debt collector is not the same as conveying information about a debt.” The court noted the average person likely would not recognize “Bay Area Credit Service” as a debt collector, and that collectors call for many reasons.
The court stressed the limits of its ruling. “Had HOVG provided any additional information beyond its name, the analysis might be different.” It cited an Eleventh Circuit case holding that a message saying “This call is from a debt collector” was a communication. The Sixth, Seventh, and Tenth Circuits have taken the same approach as the Fifth.
Our take
Fontana draws a narrow line. Collectors in the Fifth Circuit can identify themselves by company name to a third party without automatically triggering § 1692c(b). But the line is thin: saying the call is about a bill, an account, or a collection, or identifying the caller as a debt collector, can make the contact a communication about a debt.
The case also left open whether the call fit the location-information exception in § 1692b, because it did not need to reach that issue.
What it means if you’re sued in Texas
Calls to your relatives, neighbors, or workplace are one of the most upsetting collection tactics. If it happens, ask the person who took the call to write down exactly what the caller said, when, and from what number. Those details decide whether the law was broken. Texas law also regulates collection conduct under the Texas Debt Collection Act. A free case review is available if a collector has been contacting people in your life.
Takeaway
If a collector contacts family, friends, or your employer, write down exactly what was said. Any statement that implies you owe money can turn the call into a prohibited third-party communication.
Sources
Primary authority
Secondary sources
- Commentary: Bay Area Credit Defeats FDCPA Claim: Fifth Circuit Affirms Covered Communications Must Convey Information Regarding a Debt (Benesch)
- Commentary: 5th Circuit: Conveying information about debt collector different than conveying information about debt (Orrick InfoBytes)
This summary and analysis are general information, not legal advice. Later decisions, amendments or agency actions may change the law; check the current status before relying on it.