Fair Debt Collection: You Still Can’t Violate the FDCPA by Complying With It…
In Gomez v. Oxford Law, 3:14-cv-00477, 2015 U.S. Dist. LEXIS 345, * 3 (M.D. Pa. Jan. 5, 2014), Ninouska Gomez filed suit under the Fair Debt Collection Practices Act (the “FDCPA”) after receiving a message from Oxford Law, which used an autodialer to leave the message. In their statement of undisputed facts, Gomez and Oxford Law agree that Gomez heard the following message: “… please 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.” The message was designed to comply with 15 U.S.C. § 1692c(b), the portion of the FDCPA that prohibits debt collectors from revealing information about a debtor to third parties.
As Oxford Law’s message complied with that portion of the FDCPA, Gomez brought suit under another portion of the FDCPA, specifically 15 U.S.C. § 1692e(5), which prohibits debt collectors from “threat[ening] to take any action that cannot legally be taken or that is not intended to be taken.” Gomez alleged that Oxford Law had taken an “action that cannot legally taken” because it had violated 47 U.S.C. § 227(d)(3), the portion of the TCPA that requires those using autodialers to state the “identity of the business, individual, or other entity initiating the call” at the “beginning” of the message.
Oxford Law filed a motion for judgment on the pleadings arguing that there was no private right of action under the pertinent part of the TCPA and that the prerecorded calls were exempt from the TCPA. Gomez simultaneously moved for summary judgment.
The Court granted Oxford Law’s motion for judgment on the pleadings. It acknowledged that Oxford Law failed to identify itself at the “beginning” of the message. But the Court also recognized that Oxford Law waited to identify itself so as to avoid violating the FDCPA by disclosing a debt. Id. at n.3 *8-9 (“Thus, the defendant ‘violated’ the TCPA to comply with the FDCPA.”). It then held that the message did not trigger liability because Section 1692e(5) was intended only to pertain to “threats” to take illegal actions, not actually taking such actions. Id. at *9-10. Finally, it held that even if Section 1692e(5) applied to both threatening and taking illegal actions, it would still not apply to this particular action because “no other court has extended section 1692e(5)’s ‘illegal act’ language to a technical violation of another law.” Id. at *10-11.
Judge Munley’s opinion rebukes this attempt to distort the FDCPA and the TCPA. If the “illegal act” requirement applied to this claim, creditors would be unable to comply with the FDCPA. Creditors complying with the TCPA would violate the FDCPA, and FDCPA compliance would lead to a TCPA violation, resulting in liability under the FDCPA. Fortunately, Judge Munley dismissed Gomez’s claim, ending an attempt to use circular logic to create liability where none existed.