Commercial Litigation and Arbitration

Recipient of Voicemail May Authenticate It by Memory, Regardless of Existence of Transcript

Pawelczak v. Nations Recovery Ctr., Inc., 2012 U.S. Dist. LEXIS 82916 (N.D. Ill. June 14, 2012):

Pawelczak filed this action against NRC for alleged violations of the Fair Debt Collection Practices Act ("FDCPA" or "the Act") 15 U.S.C. § 1692, et seq. Pawelczak alleges that NRC left several messages on her voice mail system, and that NRC failed to provide necessary disclosures in those messages under 15 U.S.C. §§ 1692d(6) and 1692e(11).

NRC's Phone Calls to Pawelczak

Sometime prior to December 11, 2010, Pawelczak, a resident of Mount Prospect, Illinois, defaulted on a financial obligation owed to Applied Bank, a creditor. The obligation was for personal, family, or household purposes. NRC, a debt collector headquartered in Georgia that does business in Illinois, eventually obtained rights to collect on Pawelczak's debt.

NRC contacts its debtors in two ways: "live calls" placed by NRC employees, and automated calls placed through Dial Connect, a system that contacts debtors with pre-recorded messages ("recorded calls"). Between December 11, 2010 and March 29, 2011, NRC called and left Pawelczak 21 voice mail messages - eight live calls originating  [*3] from four different NRC employees, and thirteen recorded calls. Pawelczak heard none of the 21 messages in real time, and at no time did she answer any of the phone calls from NRC. In each of the live calls, an NRC employee left a message for Pawelczak requesting that she call that employee back at a phone number belonging to NRC. None of the eight live calls identified NRC as a debt collector or disclosed that the purpose of the phone call was to collect a debt. In two of the live calls, the NRC representatives mentioned Applied Bank but nothing regarding a debt owed. The NRC representatives also failed to disclose that they were calling on behalf of NRC in three of the eight live messages, but did do so in the remaining five messages. 2

2   NRC disputes the content of each of the proffered voice mail messages. It argues that the messages are based on inadmissible hearsay, and that Pawelczak has provided no evidence that the transcripts are based on authentic and original recordings. Also, with respect to the recorded calls, NRC disputes that they were left on Pawelczak's voice mail system, and instead claims that Dial Connect detected that a live person answered the calls and listened  [*4] to the messages.

Each of the thirteen recorded NRC calls left the following identical voice mail message:

   Important message for Anna Pawelczak. If this is Anna Pawelczak press the one key on your phone now and you will be connected to the next available agent. Again, if this is Anna Pawelczak press one to be connected, otherwise disregard this call or contact us at [phone number] to remove this number. Thank you.

None of the recorded calls left with Pawelczak's voice mail system identified NRC as the source of the call, identified the caller as a debt collector, or indicated that the purpose of the calls related to collecting a debt. At the time she received these phone calls, Pawelczak was unaware that the calls came from a debt collector, or that the calls concerned the collection of a debt. Pawelczak has not received any written communications from NRC. 3

3   NRC mailed Pawelczak a letter titled "First Notice New Retail" on December 13, 2010, but the parties do not dispute that she did not receive it.


I. Evidentiary Rulings

A. Admissibility of Voice Mail Messages Left for Pawelczak

NRC objects to admitting the transcripts into evidence because (1) the transcripts constitute inadmissible hearsay, and (2) Pawelczak provided no evidence that the transcripts were based on original and authentic recordings from NRC, and that NRC is unable to authenticate the transcripts.

Hearsay is an out of court statement offered to prove the truth of the matter asserted, and is generally inadmissible. Fed. R. Evid. 801(c), 802. However, such a statement offered against an opposing party that was made by the party's employee is not hearsay, and is admissible. Fed. R. Evid. 801(d)(2)(D); See Germano v. Int'l Profit Ass'n, 544 F.3d 798, 801 (7th Cir. 2008). The content of the voice mail messages are based on calls from NRC employees and are therefore non-hearsay statements.

Nor is NRC's authenticity objection availing. That Pawelczak's testimony refers  [*9] to a "transcript" does not negate her ability to competently testify as to the content of the voice mail messages based on her own recollection of receiving and listening to them. Snyder v. Tiller, 3:08-CV-00470 JD, 2010 U.S. Dist. LEXIS 90266, * 13 (N.D. Ind. Aug. 30, 2010); citing Jackim v. Sam's East, Inc., Nos. 07-3514, 08-4701, 378 Fed. Appx. 556, 2010 U.S. App. LEXIS 10702, * 26-27 (6th Cir. May 25, 2010) ("[Declarant's] knowledge of the day did not come from the video, but his own senses and memory. The fact that a video recording may at times be in fact the 'best' evidence of what occurred does not render first-hand testimony of the event incompetent."). Because the NRC statements are non-hearsay and Pawelczak is competent to testify as to the content of the voice mail messages, Pawelczak's recollection of the content of messages are admissible.

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