Eighth Circuit: A Debt Collector May Call A Third Party More Than Once Without Violating § 1692b(3) of the FDCPA

In Kuntz v. Rodenburg LLP, No. 15-2777, - F.3d -, 2016 WL 5219884 (8th Cir. Sept. 22, 2016), the Eighth Circuit held that a law firm hired to collect a debt did not violate § 1692b(3) of the Fair Debt Collection Practices Act ("FDCPA") when it made multiple calls to a third party to obtain information about the debtor.[1] Section 1692b(3) prohibits debt collectors from communicating more than once with a person other than the debtor ("third party") in order to obtain information about the debtor's location unless the third party requests to be contacted or the debt collector "reasonably believes that the earlier response . . . is erroneous or incomplete and that such person now has correct or complete information." 15 U.S.C. § 1692b(3). The Eighth Circuit determined that the law firm reasonably believed its first conversation with the third party was incomplete and, therefore, did not violate § 1692b(3) by calling the third party two additional times.

Kuntz filed a lawsuit against Rodenburg LLP ("Rodenburg") alleging that Rodenburg violated the FDCPA by calling him in connection with his daughter's credit card debt. See Kuntz, 2016 WL 5219884, at *1. Specifically, Kuntz asserted that Rodenburg violated the FDCPA by calling him more than once to obtain location information about his daughter and calling numerous times to harass him. See id. In fact, Rodenburg had autodialed Kuntz's landline number twelve times between December 18, 2013 and January 20, 2014 with no response. See id. When Kuntz returned Rodenburg's call on January 20, 2014, the law firm asked if Kuntz had a contact number for his daughter to which Kuntz responded "Ah, let me call her and find out what she's been getting." Id. Rodenburg made two subsequent phone calls to Kuntz. See id. Kuntz claimed that the two subsequent calls violated § 1692b(3). See generally id.

The Eighth Circuit held that Rodenburg did not violate § 1692b(3). The Court explained that the first twelve calls to Kuntz "were not 'communications' because 'they did not convey that Rodenburg was calling about the debt.'" Id. at *2 (quoting Zortman v. J.C. Cristensen & Assocs., 870 F. Supp. 2d 694, 704-05 (D. Minn. 2012). Kuntz did not disagree with the Court's assessment of the first twelve calls. See id. Instead, Kuntz argued that the calls that occurred after the January 20, 2014 conversation violated § 1692b(3). See generally id. Kuntz argued that the January 20, 2014 conversation was the one conversation permitted by § 1692b(3) and, therefore, the two calls made after the January 20, 2014 conversation violated § 1692b(3). The Eighth Circuit, however, found that the two post-January 20, 2014 calls did not violate § 1692b(3) because Rodenburg reasonably believed that the information provided on January 20, 2014 was incomplete and that "Kuntz had or could obtain location information about his daughter." Id. The Court explained that during the January 20, 2014 conversation, "Kuntz did not refuse to provide location information or state that he could not provide it. He did not even say that [his daughter] could not be reached at the number Rodenburg autodialed." Id. at *2. Thus, the Court determined that "it was objectively reasonable for Rodenburg to believe that . . . Kuntz had or could obtain location information about his daughter . . . permitting a follow-up call to learn if he had acquired or was now willing to provide [the information]." Id. The Eighth Circuit's decision thus indicates that debt collectors may make more than one call to a third party to obtain information about a debtor provided the third party has not expressly indicated that no such information is available and the debt collector reasonably believes that the third party possessed or could obtain such information.

[1] The Court also held that the debt collection firm did not violate § 1692d(5) because the firm's fourteen calls between December 19, 2013 and January 27, 2014 "did not rise to the level of harassment as a matter of law." See Kuntz, 2016 WL 5219884, at *3.

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