Consent Revocation a Factual Inquiry Precluding Summary Judgment

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

A federal judge in the Middle District of Florida denied cross motions for summary judgment in Patterson v. Ally Financial, Inc., holding that whether the plaintiff effectively revoked consent to receive calls “is a fact-sensitive inquiry” precluding summary judgment in favor of either side.

Patterson had originally provided his consent to be called by Ally Financial in November 2013, when he provided his phone number on a credit application in connection with a loan for an automobile purchase. The agreement provided that Patterson consented to receive autodialed and/or prerecorded telemarketing calls and included a “no oral changes” clause. Patterson also entered into an installment contract with Ally to repay the loan. The following year, when Patterson fell behind on his payments, Ally began calling to collect the debt. Patterson alleges he received 1,244 debt collection calls over the course of two years, despite attempting to orally revoke consent during calls from Ally on three separate occasions.

The court rejected Ally’s argument that Patterson must revoke consent in writing and held that Patterson could revoke consent orally. Although the parties disagree about whether the credit application and installment contract are part of the same agreement or separate agreements, the court held that it did not matter, because Patterson consented only to telemarketing calls and not to debt collection calls. Therefore, Patterson’s attempts to orally revoke consent to debt collection calls were “outside the bounds of the contract’s ‘no oral changes’ clause.” The court stopped short of granting summary judgment in Patterson’s favor, however, noting the fact-sensitive nature of the revocation inquiry.

Why it matters: The specific consent language in the agreement was pivotal in this case. Had the agreement been drafted to encompass both debt collection and telemarketing calls, Patterson may have been bound by the contract’s “no oral changes” clause, and his attempted oral revocation would have been invalid as a matter of law. Although the judge indicated the Eleventh Circuit may not have allowed the contractual provision to supersede the TCPA’s “revocation by any reasonable means” rule, it noted that the Second Circuit likely would have. This case is a cautionary tale about the importance of carefully drafting the specific TCPA consent language in every agreement.


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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