I’m getting harassing calls from a debt collector.
You can’t believe some of the things he’s saying, and you’re not sure anyone else will believe them either. What should you do? Should you secretly record the calls?
If you file a federal lawsuit for violations of the Fair Debt Collection Practices Act (FDCPA), that recording is powerful evidence of the harassment you have suffered.
Although federal law does not require you to get the consent of the offending caller before you record his outrageous call, some states do. “Two-party consent” states allow you to record conversations only after you have obtained the consent of both parties (or all parties, if there are more than two). Laws in “one-party consent” states like Delaware follow federal law and permit you to record conversations within the state if you are a participant in the conversation or receive permission from one of the participants. But be careful, because it can be difficult to know whether the call is entirely within the state. If the other person is in a “two-party consent” state, you may be violating the law of that other state. And if the other person is on a cell phone, you may not be able to tell where he is.
Take the case of Saxon Mortgage Services. Saxon employees in Texas made calls to customers and recorded those calls in Texas. According to Texas law, that was allowed because Texas is a one-party consent state and the Saxon employees who were making the calls consented to the recording. But not all of the calls stayed in Texas. Some of them were answered in other states including California, and California is a two-party consent state. Saxon hadn’t gotten consent from their California customers, like Jo Ann Zephyr. Zephyr led a class-action lawsuit against Saxon, seeking $5,000 for each of the calls Saxon made to cellphones in California. Not only is it a criminal offense in California to secretly record private conversations and cellular or cordless phone conversations without the consent of all parties, but California also allows the aggrieved parties to sue for $5,000 for each offense – even if the calls originated and were recorded out-of-state, in a one-party consent state.
What can you do about those harassing calls?
Why not just get the consent of that annoying caller?
You’ve probably given your consent to be taped many times. You’ve heard the pre-recorded warning that goes something like this: “All calls are recorded for quality assurance purposes.” If you continue with the call after you’ve received this warning, you have consented to be recorded. You don’t have to use the word “consent;” your consent is implied by your continued participation after receiving that warning.
So go ahead and issue your own warning. But make it clear that you are taping the call, not merely that you may be taping or are capable of taping the call. If the caller continues with the call, he has consented to be taped. If not, he will hang up and the harassing call is over. We know debt collection calls are troubling, but we can help you.
Give us a call, we won’t record the call, and we will do our best to help you!
Thank you for reading my post. I write about debt collection practices (sometimes with a focus on the State of Delaware). If you would like to read my future posts then please ‘FOLLOW’ on LinkedIn.
Call Mary Higgins, Esq. at 302-894-4357 we can help you!
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