The answer is maybe. Please tread cautiously and carefully here and know what you are doing before you decide to record a phone call with someone else.
Our lawyers at Bond and Botes sue debt collectors under the Fair Debt Collection Practices Act (FDCPA). We generally find two types of cases where clients sue for violations of the FDCPA. The first are letter violations when a debt collector sends a letter to one of our clients. By the way, we want to see ALL collection letters and this blog post explains why.
Abuse and Harassment Cases
The second type of cases that we see from our clients and for which we sue debt collectors under the FDCPA is for what we call “abuse and harassment” cases. These cases run the gamut and usually involve direct threats made by the debt collector to our clients over the telephone.
We have heard it all, including the most vile and disrespectful language and direct threats, to telling parents or neighbors about a particular debt that someone has, to telling children that their parents are about to be arrested, to telling the person that they are trying to collect a debt from that there is a specific case number at court and the police are five minutes away from their house coming to arrest them if they do not make an immediate payment over the phone. I could go on and on but, suffice it to say, there is not any crazy scenario that you can imagine that we have not heard from our clients.
Of course, when our clients go to sue a debt collector, it is then often a “she said – he said” type of case where the debt collector says that “of course, we would never use that type of language. We are trained under the FDCPA and we operate in an absolute professional manner at all times.” Well, that either means that our client has simply come to seek us out in great fear and frustration and is simply wasting their time making up a story to us or, more likely, what they say was said to them is exactly what they were told, or better yet, screamed at them. We choose to believe our clients since we can see the fear and frustration on their faces when they meet with us.
How Recordings Factor In
In any event, with all the talk in the news lately about recording phone calls, it got me thinking about our own clients who sometimes come in with recordings of exactly what the debt collectors have said to them.
First of all, our advice is to tread very cautiously when deciding whether to record phone calls. Are you in a one-party recording state or a two-party recording state? What that means is does your state law require only one party to a conversation to consent to a call being recorded or does it require all parties to the conversation to consent in order to allow a call to be recorded? Before you decide to record a phone call, know which state you are in and what your state law allows. This is a good place to start your research.
If you are not in a one-party recording state, then our advice is for you to NOT record phone calls without the other party’s consent. Some ways around this are for you to tell the other party that you are recording the phone call before you start recording. You can also put the person that is calling you on speakerphone and have someone listen in since there is not an expectation of privacy on phone calls unless you are told that there is an expectation of privacy. Regardless of whether the telephone call is recorded or not, if you believe that you are being harassed or abused in any manner, it is very good policy to write detailed notes immediately at the end of the phone call to include the exact date and time of the call, the exact phone number that was calling you, the duration of the call, and who the person was that they said they were that was calling you and exactly what they said. If someone was listening in on the call with you by speakerphone, have that person also do the same exact thing.
If a parent or neighbor or employer is called by a debt collector, you can ask them to write a detailed statement with all of that same information with as much detail as possible about everything that was said during the phone call. Also, make sure to save all voice messages, emails and letters from any debt collector who you think is illegally harassing you. This is what can help you enforce your rights under the FDCPA. As an aside, the states in which we currently have lawyers and law offices (Alabama, Mississippi, and Tennessee) are all considered one party recording states under respective state law.
One final note here and it is somewhat of a hypothetical. Using the CNN article reference above as a backdrop, what if someone in New York, a one-party state, calls someone in California, a two-party state, can the New York resident in the one-party state record the phone call of the person he or she called in California, a two-party state? This can be a very tricky and nuanced area. Conversely, what happens if someone from a two-party state like California calls an individual in a one-party state like New York, can that person record the call? If you are unsure of the answers to any of these questions and have concerns, you will want to tread cautiously. Our advice is to seek legal counsel first to make sure that you do not run afoul of the law. There can be severe criminal and civil penalties for violating state wiretap statutes.
If you believe that a debt collector’s conduct towards you is or has been unfair, untrue, undignified or disrespectful, please contact a Bond and Botes office nearest to you to sit down with one of our licensed attorneys to discuss and review your issues and concerns.