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If collector calls for you on someone else's cell can you sue?


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Here's the issue:  a creditor called me 6 times on my cell phone concerning a missed payment by my wife.  I never gave prior express consent to the creditor.  My wife never gave pec to the creditor.  We don't know, exactly, how they got my cell phone number but it was not on her contract with the creditor.  Our house phone was on the contract.

 

I know that I can sue the creditor for calling me on my cell without pec.  The question is, can my wife also sue the creditor for the calls to my cell phone for her?

 

 

 

(1) PROHIBITIONS.—It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—

 

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—

 

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;

 

 

 

The creditor was told on the very first call by wife that they did not have pec to call my cell yet they called 5 more times.  She told them to call the home phone, which was on the contract.  Since she gave them fair warning of the correct number to call, I see the creditor as violating her TCPA rights because she was powerless to keep the creditor from calling my cell phone.

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We are not looking for FDCPA violations.  With the TCPA, it does not matter who calls. 

 

Looking at the private right of action:

 

 

(5) PRIVATE RIGHT OF ACTION.—A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State

 

 

When the creditor called and asked for my wife I handed my cell to her thus she received the 1st call.  After that I answered the next 5 calls and continuously told them that they did not have pec to call my cell.  She was there to receive the calls but I reissued her demand for them to call the home phone number.

 

What does anyone think?  Can she sue?

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Unless the recipient has given prior express consent, the TCPA and Federal Communications Commission (FCC) rules under the TCPA generally:[1]

Prohibits solicitors from calling residences before 8 a.m. or after 9 p.m., local time.
Requires solicitors maintain a "do-not-call" (DNC) list of consumers who asked not to be called; the DNC request must be honored for 5 years.
Requires solicitors honor the National Do Not Call Registry.
Requires solicitors provide their name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity may be contacted.
Prohibits solicitations to residences that use an artificial voice or a recording.[2]
Prohibits any call made using automated telephone equipment or an artificial or prerecorded voice to an emergency line (e.g., "911"), a hospital emergency number, a physician's office, a hospital/health care facility/elderly room, a cellular telephone, or any service for which the recipient is charged for the call.[3]
Prohibits autodialed calls that engage two or more lines of a multi-line business.
Prohibits unsolicited advertising faxes.
In the event of a violation of the TCPA, a subscriber may sue for up to $1,500 for each violation or to recover actual monetary loss, whichever is higher. In addition, the subscriber may seek an injunction.

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Were they robo calls? Are you charged for incoming calls?

 

There was a pause before someone answered.  On the first call my wife asked them why they did not answer right away and they said that another person handed the phone to them.  It's likely, rather, that the atds told them to pick up as this is a very large creditor with myriad clients and it is highly unlikely that they call by dialing.  It seems that I've read a case where the consumer mentioned the pause and the court ruled that an atds was used. 

 

On your second question...no I was not charged for incoming calls but I've been told that I still pay for the service which includes incoming calls:

 

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;

 

The TCPA does not separate incoming calls from outgoing calls.  The whole point of the TCPA is to stop solicitations to cell phones and landlines.  At the time of the TCPA's incarnation (1991) I believe most cell phone services did charge for each call and that Congress merely used the term "charged for the call" to distinguish a cell phone service from a landline where local calls were included with the landline service.  Now cell phone service has caught up with landline service where the consumer is charged for the entire service, not the call.  One of the few exceptions would be trak phones. 

 

 

 

Did you write to OC not to call you?

 

If not, then do it now and do it CMRR, oral revocation in some states are not considered valid.

 

 

No.  They never ever had pec.  There would not have ever been a reason to revoke pec as they never had it.

  

 

Also, you are in control of the phone. Tell them they are violating the TCPA and HANGUP.         

 

We did that on the very first call but the creditor called 5 more times before finally using the home phone number.

 

The greater question is whether my wife can sue the creditor since whe was the one for whom the calls were intended and since she told them the proper number to call but they continued to call my cell.  What does anyone think about this particular question?

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I would start recording (follow your state's recording guidelines ) make sure to turn the recorder prior to answering so that the pause can be recorded. I got paid big for catching someone using an auto-dialer because I caught the pause.

 

I know OC did not have permission to call you for your wife's alleged account, but still to make a strong case I will Write " Do not call my Cell phone number xyz"  Thank you ! " the burden will be on the calling party to prove there was or was not a prior consent to call , no need to worry about their burden.

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These calls occured 2 years ago.  The loan is paid and we never expect the creditor to call again.  What I have is the pause, pictures of the phone calls (creditor's incoming numbers) and the old cell phone itself with the incoming calls listed.  No recordings as we answered the calls.  I really don't think this creditor will be able to say that they dialed each time manually.  If necessary, I would subpoena their collection manager to testify as to what system they used to call. 

 

Again, can my wife sue her creditor because the creditor called for her on my cell phone?  I know I can sue because it was my cell phone but can she also file her separate TCPA lawsuit?

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I have a list of equipment on this forum about the the stuff you need in your arsenal to fight the JDB. It's a special ear piece for a recorder so that you can record from a cell phone and then convert it to a wav file for court. The stuff can be bought at Radio shack.

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These calls occured 2 years ago.  The loan is paid and we never expect the creditor to call again.  What I have is the pause, pictures of the phone calls (creditor's incoming numbers) and the old cell phone itself with the incoming calls listed.  No recordings as we answered the calls.  I really don't think this creditor will be able to say that they dialed each time manually.  If necessary, I would subpoena their collection manager to testify as to what system they used to call. 

 

Again, can my wife sue her creditor because the creditor called for her on my cell phone?  I know I can sue because it was my cell phone but can she also file her separate TCPA lawsuit?

You have enough evidence to sue, but, what your wife's claim will be ? FDCPA does not apply to creditor if it's collecting its own debt. TCPA doesn't apply to her because it was your phone not hers.

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SCOTUS made the 4 year ruling because there were mixed decisions by the lower courts...and we are not looking for FDCPA violations.

 

 

your wife's claim will be ?

 

 

The same as mine:

 

(5) PRIVATE RIGHT OF ACTION.—A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State

 

A person who has received...the creditor called a number they should have know to be a cell phone, asked for my wife, assumed that that was her contact number, expected that she would answer.  Then, after being told that that number was not hers, continued to call for her 5 more times.

 

A person who has received...does not specify that the cell phone must belong to my wife. 

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SCOTUS made the 4 year ruling because there were mixed decisions by the lower courts...and we are not looking for FDCPA violations.

 

 

 

 

The same as mine:

 

(5) PRIVATE RIGHT OF ACTION.—A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State

 

A person who has received...the creditor called a number they should have know to be a cell phone, asked for my wife, assumed that that was her contact number, expected that she would answer.  Then, after being told that that number was not hers, continued to call for her 5 more times.

 

A person who has received...does not specify that the cell phone must belong to my wife. 

But it wasn't your wife's cell phone how can she claim TCPA ?

 

Calls made to cellular phone of one party (you), she could've claimed disclosure but again FDCPA does not pertain to OC, so what damged her? Hearing your phone ring is not a cause of action.

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Well, we need to stay away from any FDCPA definitions as the TCPA is a statute of its own. Beyond that, the creditor was calling about a missed payment, not a delinquent debt.<br /><br />Yea, I intend to ask for triple damages for the calls because they persisted in calling regardless to instructions to the contrary.<br /><br />Sorry my word editor doesn't seem to be working right now and I hope you guys can follow my answers.

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According to the TCPA, the cellphone does not need to belong to any specific person...<br /><br />...A person who has received more than one telephone call<br /><br />She received those calls via my cell phone. She did not give pec. She has her own rights.

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You have a PROA for the 6 calls to your cell phone for vio of 47 USC 227 (B)(1)(A)(iii).  You may get treble damages at the discretion of the court.  You also have a PROA for the 5 calls your wife answered on your cell phone.

 

Read "Guietrrez v. Barclays Bank," (S.D. Cal. 2011).  The person whose name is on the account is the only one who can give or revoke consent.  You did not give consent to the calls on your cell phone.

 

In "Swope v. Credit Managment,"( E.D. Mo. 2013), the court held that "plaintiff has standing to sue if she is the regular user and carrier of the cell phone."  You are the regular user and carrier of your cell phone, not your wife.

 

You could run it pass a consumer lawyer in Iowa, or contact wwwscottdowens.com,  in FL,,who takes TCPA cell cases nationwide. Most lawyers would take 40% of what they recover.  Or you could sue yourself, but if you sue for treble damages for 11 calls, they will litigate.

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I'm not sure a pause before they begin talking to you is definitive proof of a predictive dialer.  However, that's information you can find out through discovery. 

 

Also, do some online research.  In their SEC filings, Asset Acceptance states that they use predictive dialers to contact debtors.   You might want to see if your creditor mentions anything in SEC filings or anywhere else that would show they use such methods to collect on delinquent accounts.

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Yea, BV80, I really don't think there would be a problem with the calls being atds. This creditor is an international creditor doing business in the US. They have millions of customers. It would take an army of personnel to dial the numbers manually.<br /><br />Thanks for the sec lead. I'll be checking that one.<br /><br />What do you think about my wife's privacy being violated when the creditor called for her on my cell phone, especially the next five after she told them where to call and they still called my cell phone for her?<br /><br />Debtzapper, can you explain the 5 violations for 5 calls my wife answered on my phone? What I get is that I have the first 6 because they called me and I have another 5 where she answered. However, this is not quite correct as she answered the 1st call and I answered the last 5. I suppose I would have 7 violations...according to your theory.<br /><br />I'll be reading the cases you cited because they look pertinent.<br /><br />

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I added a little more to the citation from the swope case:<br /><br />Numerous courts that have considered this issue have held a party to be a "called party" if the defendant intended to call the individual`s number, and that individual was the regular user and carrier of the phone.<br /><br />The creditor intended to call my wife and we interchange phones. We each carry a phone but both of us recieve calls for each other.<br /><br />I'm going to log off for now as cic's word editor is not functional. I'm hoping that an overnight break will cure the problem.<br /><br />I'll be back tomorrow...unless the editor is fixed sooner.

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