Dangers In Recording Collection Calls
We are often asked if abusive debt collectors should be recorded. The short answer is "No". The longer answer is that it normally is not a good idea.
There is a lot of information on the internet about recording calls. We wrote this article to help give you our perspective so you can have more information to make the right choice on whether or not to record calls when dealing with an abusive debt collector.
REASON ONE - AVOID PROSECUTION IN A FOREIGN STATE FOR ILLEGAL RECORDING OF CALLS
Basically there are two types of states - "One Party" states and "Two Party" states.
One party states say that as long as one party to the call consents to the recording, then it is legal to record.
Two party states require that both parties to the call must consent to the recording.
We are often asked about Alabama consumers (or other one party state residents) recording conversations in a one party state. Alabama is a one party state but you can still be prosecuted. Confused?
We used to tell one party state residents that as long as they were on the call (that is dont ever record a call you are not a party to) then they were fine. Heres why our advice is to not record calls even if you are in a one party state.
In a two party state, both parties have to agree to the recording. This is why you often hear "This call may be recorded" when you call certain companies.
Some of these two party states take the position that even though it may be legal for you in Alabama (or other one party states) to record the call, it violates the law of their state and so they will prosecute you in their state. Also keep in mind that often times we cannot tell where a debt collector is calling from or where our call is going to as the larger collection agencies may route calls through different offices and you cant tell this through caller id. The collection agency letter may say its from a one party state but when you call the phone may actually be answered in a two party state.
So here is how this can work against you. An abusive debt collector keeps calling. You secretly record the phone call. You catch the abusive call on tape and now it seems everything is in place to sue this abusive debt collection agency. You file suit and your lawyer sends over the recording. Instead of the collection agency offering you money, your lawyer gets a nasty letter informing him that you have violated the laws of the state of, say, Florida and the district attorney where the collector is located (and employs lots of people) is looking at opening a criminal prosecution against you in Florida. The unstated but clear message is if you drop the civil case you will not be prosecuted. (This is almost universally forbidden to blackmail someone like this but we are talking about realities here, not a fantasy world).
So, what do you do? Move forward and hire a lawyer in Florida (or California or wherever) to defend you? Or do you drop the suit and hope you wont be prosecuted?
This relatively new approach by two party states is the primary reason we tell consumers not to record phone calls. If you dont record phone calls, you dont have to worry about being prosecuted somewhere else.
[Please note - this does not apply to voicemail messages. The debt collector knew he or she was leaving a recorded message - thats the whole point of a voice mail! So there is no issue with consent as the collector consented by leaving the message.]
But, if you cant record then how can you prove your case? This leads us to the second reason not to record....
REASON TWO - IT IS NOT NECESSARY AS LONG AS YOU CAREFULLY DOCUMENT THE CALLS
Many consumers believe that if they do not have the abusive debt collector on tape, then there is no case. Some debt collectors and their defense lawyers act the same way - as if there is no proof if there is no recording. This is simply not true.
You are qualified to testify to what the debt collector said to you. The best practice is to make notes as you are on the phone. You can do this on your computer or on a notebook or on a collection log. The basic idea is to track who called, when, from what company, from what number, and what did the caller tell you?
Immediately after hanging up the phone, review your notes and see what changes are needed to make them as accurate as possible. Did you abbreviate some words? Make a note what the words mean. If there is anything unclear, make it clear right after you hang up the phone. Note the time and date of the call and who called you.
Here is why some consumers believe recordings are essential - because the debt collector will not put in its notes that it used profanity or threatened you with jail time for not paying a bill. Our response? Big deal.
Of course the debt collector will not record entries into the collection notes that will open the debt collector up to a lawsuit or expose the individual collector to being terminated. Showing the collectors notes are unreliable is usually a simple process.
So it comes down to your testimony versus the debt collectors testimony. The collector will say he has no memory of threatening you or cursing at you. The collector will claim to have a perfect memory of the call with you. Of course the next question we ask is "Tell us about the call right before the one with my client." No memory. Or the call ten people after our client was called. These collectors have dozens of calls in a day and yet they claim they can remember what they told you six months ago? Not likely.
The reason you can remember is you have had just a few collection calls and because you carefully and faithfully note all the calls you get in your computer, notebook, or other collection log.
If you are a credible and believable person, then who needs a recording? In our judgment a recording is just not that important for most cases.
BUT IF YOU DO RECORD, HERE ARE SOME SUGGESTIONS
If despite our advice you are determined to go ahead and record, then here are some suggestions.
First, make sure that your recording device is working properly. If you are going to take a chance recording, make sure you get something out of it. Test out your recording device with a friend who is agreeable to you doing this.
Second, tell the debt collector at the beginning of the conversation that you are going to record the call. Tell the collector if he or she keeps talking you are going to assume they agree to be recorded. If they wont agree, then end the call.
Third, do not act any different on the recording. Once you have permission from the debt collector, then proceed with the conversation as if nothing is different. This also means do not try to trick or trap the debt collector. Well discuss this in another article but the main purpose of talking to a debt collector is to gain information.
Fourth, as soon as the call is over mention on the recording the time and date of the call if you did not do so at the beginning of the call.
Fifth, transfer the recorded call to digital media as soon as possible. Get it on your computer or somewhere safe. You dont want to go through all the effort to get a recording and then the recording is lost or misplaced.
We hope that this information will help you make the right decision in dealing with abusive debt collectors. Whatever decision you make on calls with abusive debt collectors, remember you have rights and the better you document the abuses of debt collectors, the greater likelihood that you can stop them from ever abusing you again. We wish you the best of success in dealing with your collectors.
John G. Watts is a well known consumer lawyer who has litigated dozens of cases against abusive debt collectors.
HIs firm website is at http://www.alabamaconsumer.com
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