What is everyone's opinion leaving messages with the foti script and without. With the NCO case, many agencies are using the Foti script for debtors, however some are not. They say "hey this message is tom jones. Tom please call me back in office as soon as possible. My number is xxx-xxx-xxxx.

It seem agencies are being sued left and right. One suit may say that the collector had to use the Foti. Another says that the Foti still counts are 3rd party disclosure.

My company practices are to typically just get someone live on the phone. We don't leave many messages. Sometimes with the dialer we do the foti script.

What are your thoughts on this? (agency owners / managers only please)

Tags: debt, fdcpa, foti, lawsuit

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I'll point out this case:

The case of Edwards v. Niagara Credit Solutions involved a situation in which a collection agency (Niagara) left a debtor (Ms. Edwards) a phone message that said simply “this is an important message for Brenda Edwards. �Please return this message at 1-800-xxx-xxxx between the hours of 8 a.m. and 9 p.m. eastern standard time.”

Ms. Edwards sued Niagara, arguing that this “bare bones” message failed to properly identify the caller as a debt collector and it failed to state the purpose of the call.

Niagara argued that it could not leave the identifying information because that would constitute a violation of the third party communication prohibition (Niagara had no way of insuring that a third party would not hear the phone message).

The 11th Circuit judges tossed out Niagara’s argument, noting that Niagara cannot violate one section of the FDCPA in order to fulfill another section.

Eric, this is about as settled as it is going to get anytime soon. Many courts have made it clear that debt collectors can not expect the absolute right to use telephone messages as a debt collection tool.

I am a former agency owner, so hopefully my opinion is welcomed. Even though there is no safe harbor guarantee on the content of messages, there most definitely is a progression of risk in deciding which strategy is right for you.

I think it is generally agreed by attorneys who give advice on such things that the safest bet is to use the FOTI message. Even though it can get you sued, it will get you sued less often and it will all but eliminate the possibility that your message will get you sued in a class action.

As a side note, I have heard of lawsuits where the consumer sued because their own machine cut off the message before the collector could get to all of the required disclosures. How's that for opportunistic?

I have had many conversations with agency owners on all sorts of topics, and a surprisingly counter-intuitive pattern has emerged over the last few years. It seems many agencies who have abandoned messaging altogether have experienced no significant reduction in callbacks or revenue, and some have even reported small increases due to increased productivity.

If I was in the business of calling consumers, I would not leave messages at all - at least not first contact messages.

Of course it's welcomed. I was mainly referring to the amateur collectors and consumers prowling the board. With my agency, I typically do the initial call and use my dialer for it on predictive mode (but will also leave messages if no live person answers. Then I'll have my collectors call with no messages on the res or cell. Then predictive in between following by one last message series in the end before we release the cases or our clients sue them. It seems to go well for my associates and I. No one has challenged us yet. But "yet" is the key word.

It's a pain in the ass. There's so many really bad agencies out there.... we try to follow the laws and be good. Then comes along some debtor that borrows $500, doesn't pay one dollar back in 2 years, then claims we're harassing them on the first call, sues us for calling at 9:03pm or whatever. Oh, and I love the ones that say "I'll pay my $500 debt off for $10 or nothing and then when we don't agree, they'll post online that we threatened to blow up their call or something. It's insane.

Be careful about using that dialer... if you unintentionally hit a cell phone with one of them, the consequences can be outrageous. TCPA awards $500 per call. Unless you have an excellent process for weeding out cells, I would lose the dialer. At the very least mitigate your risk by not leaving messages. I've said it before, and I'm sure I'll say it again. I am not necessarily referring to anyone in particular... but this is not a game for noobs. The big guys have the resources to deal with these issues. The little guys live a lawsuit or two away from devastation.

Luckily the dialer can weed out cell #'s. If the debtor puts their cell # on a loan application, there "shouldn't" be any reason we can't use that number in the collection of debt. I can't say if the only number I have on the person is a cell, I'm not going to call it.

Unfortunately Jack, while your advice is more than sound, the ability to collect a debt is rapidly decreasing, so we can try to play as smart as possible, but there's going to be risk involved. It's becoming easier and easier to borrow money and not return it. The "good" collector that wouldn't intentionally threaten or harass someone spends more time trying to stay within the lines, rather than collecting the bills and the debtor is given more liberty and freedom when taking someone else's money and pocketing it. I personally think the old truth of debtors being honest and collectors being crooks, has completely done a 180.

Sorry, now I'm ranting.

You can use a cell number in the collection of debt, as long as you dial it manually. Autodialing it is the issue, and it is a tough one. Autodial a sophisticated consumer, and you have handed them your checkbook.

Too bad autodialers can't weed out litigious consumers (yet). That is a service we are developing.

:)

Oh, ok. I was actually a little confused on the appropriateness of dialing cells. It's tricky ground. Thanks. 

I have heard of some services out there that provides lists of debtors that go after agencies and creditors, but haven't seen those lists connected to dialers.

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