Another Positive TCPA “Prior Express Consent” Case

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Yesterday insideARM reported on an Eleventh Circuit Court of Appeals Decision confirming the validity of prior express consent in a TCPA case. Today we report on another, similar case.

On Friday, the Court of Appeals for the Sixth Circuit, in the case of  Hill v. Homeward Residential Inc., No. 2:13–CV–00388, 2015 WL 4978464, affirmed the lower court jury decision determining that a person gives “prior express consent” when he gives a creditor his cell phone number in connection with a debt.

The debt involved a mortgage that the plaintiff, Stephen M. Hill (Hill) had obtained in 2003. The mortgage was obtained through another company not a party to the lawsuit. The loan was ultimately transferred to Homeward Residential Inc. (Homeward). Hill had fallen behind in his mortgage payments and had significant interaction with Homeward as he attempted to resolve the delinquency and keep his home.

The court found that Hill had filled out at least 10 different forms with Homeward as he tried to mitigate his losses. He provided his cell phone number on all these forms. The court also found that Hill had provided express written consent for Homeward to call his cell phone on one of those forms. That consent read:  “I consent to being contacted concerning this request for mortgage assistance at any cellular or mobile telephone number I have provided [,] . . . includ[ing] . . . telephone calls to my cellular or mobile telephone.”

To collect from Hill and in other matters regarding his loan, Homeward called Hill on the number he provided: his cellphone. In all, Homeward called him an alleged 482 times from 2009 to 2013. For 176 of these calls the company used a device “capable of autodialing a phone number.”

The 11 page opinion discusses a number of procedural issues that occurred throughout the life of the case.  However, the crux of the opinion was that Hill did give Homeward “prior express consent” to call him on his cell phone.

insideARM Perspective

This case and the Murphy case we reported on yesterday should be read together for an excellent discussion on the issue of “prior express consent.” Unfortunately, in light of the FCC’s July Declaratory Ruling and Order, this issue may become secondary to the issue of when “prior express consent” is revoked by a consumer.

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Posted in Accounts Receivable Management, Collection Laws and Regulations, Collection Technology, Debt Collection, Debt Recovery, Dialers, Featured Post, Mortgage Collections, TCPA .

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Continuing the Discussion

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  • avatar denise-densmore says:

    I have no problem with this.

    I’ll even accept that somewhere, somehow, my number was given as a point of contact for debt. BUT, when I tell the “big name collection agency” I don’t know the person they want, the calls need to stop, and stop once and for all.

    Also, I guess I have to take a SINGLE call for the neighbor. I don’t have to act on it. I would like to think that if an agency is following the law, they’ll know they can’t make another call. BUT, once again, they keep coming back to me.

    I understand making phone calls can be an effective way to collect debts. BUT, and I hate to keep saying that, calls to the wrong number make just about everyone, starting with me, want the debt industry closed down. Yes, I understand a debtor might lie. BUT that does not justify repeated calls. If the agency thinks I lied, let them get the phone ownership information. Make them prove that they’re calling the debtor and not me, who is not the person they want.

    Here’s what I see happening. People such as myself will get fed up and file TCPA lawsuits. The debt industry will complain but I suspect very much that they’ll lose these cases. This is because police, FTC, etc., don’t address these calls.

    I think that if industry organizations such as Insidearm took a stronger stance even going so far as to “name and shame” the worst offenders it would do good. Even if these offenders did not change their actions, then those such as myself might start to see that the industry is not completely rotten. Since to date my interaction with the debt industry is misplaced calls, is anyone surprised that I think it is rotten?

  • avatar Bill Boykin says:

    Denise,
    as a debt collector, I can tell you, we may not like it when we are told it is a wrong number when it was previously good or good reason to believe it’s good, but we remove the number. In all other cases, I’m glad to remove a wrong number as it’s not going to collect the account. I think your view on debt collectors calling wrong numbers callously is outdated and prejudiced by your previous bad interactions with a couple of bad apples possibly.

  • avatar william-klector says:

    Ms Densmore,

    Although I cannot speak for everyone, I think it’s safe to say that the successful businesses in today’s ARM space share your concerns more than you realize. You likely do not know the extent of which our industry has gone to eliminate multiple wrong number calls. From technology to training, I assure you the good agencies out there continue to do everything possible to address the issue.

    How do you know I’m being honest? Well, from a consumer experience perspective, we do not want to make people angry. We want to do business with big creditors and hospitals; but they won’t do business with us if we have a poor reputation and a history of complaints. And don’t forget that we are human, too – we really aren’t trying to make your day more difficult.

    From a company perspective, making repeated calls to a wrong number is literally bad business. Every call comes with a cost – phone bill, payroll, software & hardware. Every call to a bad number is an expense we really want to avoid.

    One last thought – folks often think the same company is calling them over and over when, in fact, its often several companies calling for the same person. When someone falls on difficult financial times its common for them to be in arrears with 3, 5, 7 or even 10 different companies. Each of them probably have that same old, now-bad telephone number for them and all of them call. To you and I, hearing those faceless voices feels like the same guy calling over and over again, even when its not. It’s common for one of my team to speak with someone who says they’ve previously asked us not to call anymore…but its the first time we’ve ever called them. This might not have been what you experienced, but it happens frequently.

    Again, we share your concerns and have a lot of common ground when it comes to the desire to eliminate multiple wrong number calls.

  • avatar ANDREA PARR says:

    Well said Bill and William!

    Legitimate agencies work very hard at eliminating the wrong party calls. In this day where people change their cell phones and carriers like underwear (and almost always give only their cell phone number) it is virtually impossible to totally eliminate this problem. By the time an account is placed with an agency it is down the road and the cell may not be viable for that patient. As a healthcare only agency I say this from our historical experience.

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