8th Circuit: Debt Collector May Call Third Party More Than Once Without Violating FDCPA

This article previously
appeared on the Burr Foreman blog and is re-published here with permission.
Katherine West also contributed to this article.

Katherine West also
contributed to this article.

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.