Debtor May Give Consent under TCPA for Collection Calls to Non-Debtor’s Cell Phone

by Ballard Spahr LLP
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Autodialed or prerecorded collection calls to a non-debtor’s cellular telephone number did not violate the Telephone Consumer Protection Act (TCPA) because the calls were made with the consent of a debtor with “common authority” over the number called, a Florida federal court has ruled.

The TCPA prohibits autodialed or prerecorded non-emergency calls to cell phone numbers unless the call is made with “the prior express consent of the called party.” In his May 10, 2012, decision in Osorio v. State Farm Bank, FSB, U.S. District Judge Donald M. Middlebrooks of the Southern District of Florida found that a debtor may provide “prior express consent” on behalf of a non-debtor “called party” for collection calls made to the non-debtor’s cell phone number.

In her credit application, the debtor had listed the called number as her cellular phone number and, in a subsequent change of address form and subsequent contacts with the creditor’s customer service, represented that the called number was either her work or home phone number. The debtor and non-debtor lived together, were raising a son together, and subscribed to a phone plan together that included the called number and another number used by the debtor.

The non-debtor argued that calls made by the creditor’s collection agency to the called number were unauthorized because he was the “called party” and had not consented to the calls.

Finding the facts demonstrated that “at a minimum [the debtor] had common authority over the [called number],” the court concluded that the debtor was able to provide the consent necessary for the collection agency to call the called number, even if it actually belonged to the non-debtor. The court observed that if the non-debtor could sue the creditor because the debtor “had provided ‘his’ phone number to [the creditor] on multiple occasions, debt collectors would be held liable whenever a debtor lists a family member’s number as his own.”

The court also rejected the non-debtor’s argument that even if the debtor had consented to the calls on his behalf, that consent was revoked when he and the debtor told the creditor to stop calling. In reaching its decision, the court relied on cases decided by a New York federal court that have held consent to collection calls cannot be revoked verbally under the Fair Debt Collection Practices Act. Based on such cases, the court found the debtor’s and non-debtor’s verbal revocations “insufficient as a matter of law to revoke [the debtor’s] prior express consent.”

We continue to see a high volume of class actions against companies alleging TCPA violations. In part, this is because the penalties are draconian. Violations can yield damages equal to a minimum of the greater of $500 or actual damages per violation, triple damages for willful violations, and unlimited class action liability.

Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). In addition to having vast experience in defending all manner of TCPA lawsuits, the group has counseled a number of clients on establishing auto-dialing and monitoring protocols.

Ballard Spahr lawyers also regularly consult with clients engaged in consumer debt collection on compliance with the Fair Debt Collection Practices Act and state debt collection laws. As summarized in a prior legal alert, the Consumer Financial Protection Bureau has issued a proposal to supervise certain debt collectors and debt buyers as “larger participants.” The CFPB will soon be examining debt collectors and debt buyers who qualify as “larger participants” or who act as service providers to entities supervised by the CFPB, such as payday and private student loan lenders. We are currently conducting compliance reviews for debt collectors and debt buyers in anticipation of their first CFPB examinations.

The group also produces the CFPB Monitor, a blog that focuses exclusively on important CFPB developments. To subscribe, use the link provided on the right.

For more information, please contact Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com; Practice Leader Jeremy T. Rosenblum at 215.864.8505 or rosenblum@ballardspahr.com; John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com; Mercedes Kelley Tunstall at 202.661.2221 or tunstallm@ballardspahr.com; Barbara S. Mishkin at 215.864.8528 or mishkinb@ballardspahr.com; or Mark J. Furletti at 215.864.8138 or furlettim@ballardspahr.com.


 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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