Zortman v. J.C. Christensen & Associates, Inc.
870 F. Supp. 2d 694
D. Minnesota2012Background
- JCC, a debt collector, left a voicemail identifying itself as such on Zortman’s cellular voicemail.
- The message was heard by Zortman’s children, revealing family financial distress.
- Zortman alleges the voicemail violated FDCPA §1692c(b) (third-party communication).
- Discovery is closed; there is no factual dispute; JCC moved for summary judgment or mootness.
- JCC previously made a Rule 68 offer of judgment for $1,001; offer did not cover post-offer fees under FDCPA, so mootness is disputed.
- Kohl’s debt attributed to Zortman; amount $648.39; work number was her cellular line; messages left were: “We have an important message from J.C. Christensen & Associates. This is a call from a debt collector. Please call 866-319-8619.”
- Zortman suffered emotional distress and sleep loss due to perceived debt collection activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 68 offer moots the FDCPA dispute | Rule 68 offer did not cover post-offer fees; dispute remains | Rule 68 moots if relief equals requested | Court retains jurisdiction; not mooted |
| Whether voicemail constitutes a §1692c(b) communication | Voicemail disclosed debt collection to third parties (children) | Voicemail only identified collector; no consumer named; not third-party communication | Voicemail not a third-party communication under §1692c(b) (summary judgment for JCC) |
| Whether the message violated §§1692d(6) or 1692e(ll) and §1692c(b) | Messages compelled identification; violated disclosure requirements | Identification alone does not violate these sections when no debt is named | No violation found; messages did not convey debt information to a third party |
| Whether summary judgment is proper given FDCPA interpretation | N/A | No genuine disputes; message complied with disclosure minimum | Summary judgment for JCC; complaint dismissed |
Key Cases Cited
- Cordes v. Frederick J. Hanna & Assocs., P.C., 789 F.Supp.2d 1173 (D.Minn.2011) (FDCPA voicemail liability; third-party disclosure)
- Berg v. Merchants Ass’n Collection Div., Inc., 586 F.Supp.2d 1336 (S.D.Fla.2008) (FDCPA voicemail identification and third-party exposure)
- Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643 (S.D.N.Y.2006) (voicemail identification requirements under §1692d(6) and §1692e(ll))
- Hicks v. America’s Recovery Solutions, LLC, 816 F.Supp.2d 509 (N.D.Ohio 2011) (third-party disclosure and voicemail communications)
- Leahey v. Franklin Collection Serv., Inc., 756 F.Supp.2d 1322 (N.D.Ala.2010) (FDCPA third-party communications; voicemail context)
- Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350 (11th Cir.2009) (bona fide error defense context; intent considerations)