This article originally appeared on the Consumer Financial Services Legal Update.  It is republished with permission from the author (Eric Troutman).

When a Defendant submits 89 call recordings demonstrating that the customer never once asked for calls to stop or suggested that the calls were unwanted, you’d think that would be enough to earn a summary judgment. Not so, says Judge Theodore D. Chuang of the United States District Court for the District of Maryland.

In Ginwright v. Exeter Fin. Corp., Civil Action No. TDC-16-0565, 2017 U.S. Dist. LEXIS 194739 ( D. Md. Nov. 28, 2017) the Plaintiff sued for TCPA violations contending that he had revoked his consent to be called by repeatedly responding “no” when asked orally to consent by the Defendant’s agents, and also by asking not to be called on numerous occasions. The Defendant moved for summary judgment, which was ultimately denied despite very potent evidence that Plaintiff’s claims of revocation were entirely concocted.

In approaching the motion, the Court first found that the Plaintiff had provided initial consent by providing his number on the credit application for the automobile loan about which the calls were placed. The Court was unmoved by evidence that the Plaintiff had been repeatedly asked by the Defendant’s agent to confirm that consent in ensuing conversations and declined each time. Such oral consent was unnecessary since the Plaintiff had already supplied the needed consent when he first applied for the loan.

Turning to whether the consent was revocable, the Defendant urged the Court to follow Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017) and deem the Plaintiff’s contractual consent irrevocable. The Court declined to do so, concluding that Reyes conflicts with FCC rulings on the subject (but it doesn’t). After concluding that consent can be revoked, the Court determined that a triable issue exists as to whether or not the consent was revoked. This is true although the Defendant submitted 89 recordings, none of which contained a whisper from the Plaintiff that calls should stop. Still, the Court found that not all recordings were submitted and the absence of some recordings coupled with Plaintiff’s word that he had requested calls to stop was sufficient to raise a triable issue.

The Defendant probably isn’t too heartbroken by the order, however, as the Court went on to deny class certification—yet another in a string of cases holding that individual issues predominate over common ones in these TCPA debt collection class actions. Note to the Plaintiff’s bar: stop it already. The Courts are on to you.


Tags: TCPA

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