Nelson Mullins Riley & Scarborough LLP

If your callers are trained well, you have good scripts, and you can document that it happened, it may be possible to get a customer’s consent back in the same call in which it was revoked. 

In Tyler v. Mirand Response Systems, Inc., C.A. No. H-18-1095, 2019 U.S. Dist. LEXIS 81080 (S.D. Tex. May 15, 2019), borrower Tyler alleged violations of the Fair Debt Collection Practices Act (“FDCPA”) and Telephone Consumer Protection Act (“TCPA”) based on calls to collect her debt by Mirand, who had been assigned the rights to collect from Woodforest National Bank.  The court granted summary judgment in favor of Mirand on both claims.

Tyler argued that she revoked her prior express written consent, which the court found had been granted in the Account Agreement with Woodforest.  The court found, however, that Tyler may have revoked her consent, but she gave it right back in the same call.  At the beginning of a call from Mirand, the Mirand rep asked Tyler “whether it was ‘okay’ to contact Plaintiff ‘using the autodialer and prerecorded messages only when necessary.’”  (*5.)  Tyler said No to that question, but then later agreed for Mirand’s rep to call her on a specific date two weeks later at an appointed time.  In her deposition, Tyler said she wanted Mirand to call her back so she could resolve her debt and did not care how they called her. 

According to the court, to the extent Tyler revoked the prior express written consent she had given in the original Account Agreement (so not exactly finding that Tyler had revoked consent), Tyler had agreed for calls starting again on a specific date.  Tyler said she revoked consent for ATDS calls during the early phone call, but the court said Tyler’s revocation of consent to calls from an ATDS was not clear because the question had been about the frequency of the calls, not the method. 

The verbal confirmation of consent and the transcripts of the calls that were presented to the court for the summary judgment motion were key to Mirand’s success in prevailing on the TCPA claims.