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TCPA damages for two Plaintiffs


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A major creditor called for my wife to my cell phone about a missed payment.  They did not have prior express consent. 

 

My argument is that both my wife and I have our own privacy rights under the TCPA. The creditor violated those rights, for both of us, when they called my cell phone expecting to talk to my wife. There is little doubt that I was the “called party”, as some of the courts have defined it, but it was my wife who was the “intended called party” and the one who was expected to answer. A call to me was a call to her thus, since we were both violated, she should have her own damages for the 6 calls. Any action involving these phone calls should be asking for damages for the both of us as individuals and there should be damages for the sum of 12 phone calls, 6 for her own private right of action and 6 for my own private right of action

 

The greater question is whether Belen has standing to sue Santander because she is not a “called party”.   In Page v Regions bank the court said:

 

 

 

Regions' statutory standing argument is based on the proposition that only a "called party" has standing to pursue a TCPA claim under § 227(B)(1)(A). Despite this bold assertion, there is no indication of such a requirement in the statutory text. …the plain language of the TCPA simply does not support this requirement. …The statute does not use the term "called party" when defining who may assert a TCPA claim. To the contrary, the TCPA grants a private right of action to any "person or entity."... Specifically, § 227(B)(3) provides

 

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State --

 

(A) an action based on a violation of the subsection or the regulations prescribed under this subsection to enjoin such violation,

 

(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or

 

© both such actions.

 

If the court finds that the defendant willfully or knowingly violated this subsection or the regulations under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. (emphasis added).

 

There is no limitation in the text of the statute to indicate that only a "called party" may assert a TCPA claim.

 

This court is equally unpersuaded by cases from other district courts limiting standing under the TCPA to the "called party." These cases do not address the absence of such a requirement in the statute and are factually distinguishable.

 

…some courts have recognized the "intended recipient" as the "called party" with standing under the TCPA.

 

 

The creditor called a number expecting that my wife would answer, asked for her, and assumed that the number they called was her contact number. Then, after being told that that number was not hers, continued to call for her 5 more times

 

I did find binding argument in Swope v Credit Management where the court said:

 

By its plain language, the TCPA grants standing to any "person or entity." The only relevant reference to a "called party" in this section of the statute appears in one of the affirmative defenses to enforcement of the statute: a call made with the prior express consent of the called party. This does not in any way limit the class of people who may bring a cause of action under the statute to "called parties."

 

there is no requirement in the statute that the plaintiff must actually be the "subscriber" to the cell phone

 

 

 

I have found no case law which deals with two Plaintiffs asking for their own damages for the same phone calls.  However, from the plain reading of the TCPA, “a person” can file a claim for any violation of the TCPA.  It would follow that “a person”, or any person, can be awarded damages and there is no exclusion to two Plaintiffs being awarded damages for the same calls when they can establish that each of them had their own privacy rights violated by the same phone calls.

 

Unless someone can come up with case law, or FCC ruling, that specifically states that two closely related people who share their phones cannot each file and receive damages for the same calls directed to one spouse but utilizing the other spouse's phone, then I'm going to assume that I have a test case. 

 

It's clear that both of us can file because the TCPA, and case law say that we can.  It's not quite so clear on the damages because, apparently, the TCPA says that we can both be awarded damages because it doesn't say that we cannot.  If a person (anyone) can file then it would follow that a person (anyone) can be awarded damages.  The TCPA does not limit damages to a single person for each phone call. 

 

All input welcome. 

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I've sued the collection agency and the individual debt collector making the call for the exact violations on the same call.  

 

It's not exactly the same but my rights were violated by two different parties so I sued both.  Here, in my opinion, they violated two different parties rights, yours and your wife and I would use the same theory I used in the FDCPA action. 

 

In your case I'd argue that a party should not be able to shield themselves from liability by "calling the wrong number" so to speak. 

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In your case I'd argue that a party should not be able to shield themselves from liability by "calling the wrong number" so to speak. 

 

That is the consumer advocate perspective. This very issue is the subject of an appeal currently pending before the 11th Circuit in Breslow v. Wells Fargo. The 7th circuit has already ruled favorably on virtually the same issue in Soppet v. Enhanced Recovery. Hopefully, the 11th circuit will fall in line.

 

Regarding the calls at issue here. The only party who has article III standing to bring suit is husband, who is both owner of the phone and recipient of the calls. Because calls were not placed to wife's phone, nor was she the recipient of the call, she has no cause of action here. 

 

This scenario would be no different that calls placed to new owner of phone number looking for old owner. Old owner neither has possession of phone, nor did he receive calls. Wife cannot sustain action any more than he can.

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That is the consumer advocate perspective. This very issue is the subject of an appeal currently pending before the 11th Circuit in Breslow v. Wells Fargo. The 7th circuit has already ruled favorably on virtually the same issue in Soppet v. Enhanced Recovery. Hopefully, the 11th circuit will fall in line.

Thanks for the info, gives me a case to put on my radar and follow as I was not aware. 

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That is the consumer advocate perspective. This very issue is the subject of an appeal currently pending before the 11th Circuit in Breslow v. Wells Fargo. The 7th circuit has already ruled favorably on virtually the same issue in Soppet v. Enhanced Recovery. Hopefully, the 11th circuit will fall in line.

 

Regarding the calls at issue here. The only party who has article III standing to bring suit is husband, who is both owner of the phone and recipient of the calls. Because calls were not placed to wife's phone, nor was she the recipient of the call, she has no cause of action here. 

 

This scenario would be no different that calls placed to new owner of phone number looking for old owner. Old owner neither has possession of phone, nor did he receive calls. Wife cannot sustain action any more than he can.

 

Nascar. This is exactly the point I have made to the OP myself.  Six calls are only six violations, not 12.  Because they calls were intended for his wife and not him is irrelevant for the damages sought.

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Regarding the calls at issue here. The only party who has article III standing to bring suit is husband, who is both owner of the phone and recipient of the calls. Because calls were not placed to wife's phone, nor was she the recipient of the call, she has no cause of action here.

 

This scenario would be no different that calls placed to new owner of phone number looking for old owner. Old owner neither has possession of phone, nor did he receive calls. Wife cannot sustain action any more than he can.

 

 

Normally you cite case law to support your position.  This time you have not probably because there isn't a court in the land that has dealt with this particular issue.  As with the cases I cited, the court said that other courts who have decided it is the "called party" who has standing have not explained why they have narrowed the claimants to "called party".  Let me recite.  In Page v Regions, the court said:

 

This court is equally unpersuaded by cases from other district courts limiting standing under the TCPA to the "called party." These cases do not address the absence of such a requirement in the statute and are factually distinguishable. 

 

This one is outside of my district but I have one that is in the 7th circuit.  In Swope v Credit Management the court concurred:

 

This does not in any way limit the class of people who may bring a cause of action under the statute to "called parties."

 

Here, I can get my foot in the door and I believe that the court will hear my case without throwing it out at the onset.  There is nothing in the TCPA where just one person can be awarded damages for phone calls.  I have yet to read a case where two Plaintiffs have tried to collect on the same phone calls.  It's not double dipping because both of our privacy rights were violated by the same creditor for the same calls.

 

 

Nascar. This is exactly the point I have made to the OP myself. Six calls are only six violations, not 12. Because they calls were intended for his wife and not him is irrelevant for the damages sought.

 

You've pointed the way to my argument by giving me the case law I just cited.  Let me cite from one of the cases.  In Page v Regions bank, the court said:

 

…some courts have recognized the "intended recipient" as the "called party" with standing under the TCPA.

 

One of the cases this court was referring to was were a wife and husband worked in the same home office.  She was there and received faxes directed to him which were violations of the TCPA.  She filed a TCPA claim but the court ruled against her as she was not the "intended recipient".

 

I am not convinced that only a "called party" has standing...especially since a court in my very own district has ruled otherwise.  At any rate, my wife would be considered a "called party".  In Swope v Credit Management the court said:

 

Furthermore, even if the TCPA limits standing to "called parties," the plaintiff qualifies as a called party under the facts of this case. 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...Plaintiff alleges that defendant intended to call this number, and she received these calls on her cell phone, which I agree is

sufficient to qualify as a "called party" under the statute.

 

Keep in mind that the Swope court has not narrowed it's opinion to "called party" and to the "regular user and carrier of the phone".  1st step brought up a good point where the "family plan" may qualify.  My main point is that even though only a call was made 6 times to my cell by the creditor, each of those calls still disturbed the privacy of both my wife and I.  She told them on the very first call that they did not have prior express consent yet they still continued to call as if she never said that.  Her privacy was violated.  My privacy was violated because simply because they called my cell phone without pec.  I don't think any argues with the violation against me...it's just that no court has considered two Plaintiffs for the same calls, neither has the FCC.

 

Anyone have case law or FCC ruling?

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Well, I'm going to give attorneys for consumers the first shot as they have worked on 3 cases

for me already.  They've also turned 3 cases down.  This may be another one they will turn down.  I'll be sending it in today or tomorrow.  I kind of expect them to turn it down because it is not an easy case. 

 

If I had it to do over again, I would have just let the creditor call...and call...and call so that the phone calls would have added up to a lot more than 6. The only reason I am trying to get my wife involved is because I know 6 calls are not enough. 

 

I'll let you guys know what happens.

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You are definitely going to be arguing against a double recovery claim. You may also have trouble with this section:

 

(4) The term “telephone solicitation” means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person's prior express invitation or permission, (B)to any person with whom the caller has an established business relationship, or © by a tax exempt nonprofit organization.

The business relationship exemption is mentioned several times. The law was originally intended to protect people from unwanted solicitations, not calls from legitemate creditors.

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Keep in mind that the Swope court has not narrowed it's opinion to "called party" and to the "regular user and carrier of the phone"

 

No, they didn't narrow their opinion.  However, their opinion was based on one certain issue.  The reason they didn't say "only" a called party and "only" a regular user of the phone is because they weren't dealing with someone who wasn't the regular user of the phone.

 

Under your scenario, anyone who was the "intended recipient" but whose phone was not called could still sue.  Let's say a CA calls my cell phone for a Jane Smith.  They continue to call my cell even though I've informed them that I don't know a Jane Smith.  They've definitely violated my rights.  Under your scenario,  Jane Smith could also sue because she was the intended recipient.

 

 

I can't find the Page v. Regions case.  However, I did read the Soppet case from the 7th Circuit Court of Appeals. 

 

Here's some quotes from the court:

 

Neither § 227(B)(1) nor any other part of the Act defines the phrase "called party", but this language and several other parts of § 227 supply clues. Subparagraph (A) asks whether a "called party" consented to the call, and clause (iii) contains the phrase "for which the called party is charged". The second use of "called party" must mean Cell Number's current subscriber, because only the current subscriber pays.

The phrase "intended recipient" does not appear anywhere in § 227, so what justification could there be for equating "called party" with "intended recipient of the call"? (Section 227(B)(1) does use the word "recipient" in a context where "recipient" means "current subscriber"; this doesn't remotely suggest that "called party" must mean "intended recipient.")

 

As you'll note, the "called party" is the current subscriber. 

 

As Nascar pointed out, the 11th Circuit is hearing Breslow v. Wells Fargo.  In the following quotes, the lower court separated "intended recipient" from "actual recipient". 

 

In particular, § 227(d) of the TCPA, which describes technical standards for fax machines and automated dialing systems, also uses the term "called party." That section provides that a system must "automatically release the called party's line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party's line to be used to make or receive other calls." 47 U.S.C. § 227(d) (emphasis added). This use of "called party" clearly refers to the actual recipient of the call rather than the intended recipient.

 

 

My main point is that even though only a call was made 6 times to my cell by the creditor, each of those calls still disturbed the privacy of both my wife and I.

 

Where exactly is the right of action just because one's privacy is disturbed?  If my spouse were to receive a call from a CA, I might be disturbed, but it wouldn't mean my privacy was violated, nor would it mean I have a right to sue.  If that's all it takes to sue under the TCPA, everyone whose spouse ever received a cell call from a CA would be suing.

 

 

 

The only reason I am trying to get my wife involved is because I know 6 calls are not enough.

 

 

Why would be 6 calls not be enough?  Even if you get your wife involved, there's still only 6 calls. 

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Bruno, the creditor did not have prior express consent and the calls were to my cell phone and it is landlines where the FCC has ruled that establish business relationship exempt debt collectors.   

 

And, in my district the creditor must be able to establish that I gave them prior express consent to use an atds.  In Edeh the court said:

 

“Express” means “explicit,” not, as Midland seems to think, “implicit.” Midland was not permitted to make an automated call to Edeh’s cellular phone unless Edeh had previously said to Midland (or at least to Midland’s predecessor in interest) something like this: “I give you permission to use an automatic telephone dialing system to call my cellular phone.” Midland has no evidence that Edeh gave such express consent.

 

The creditor does not have such a thing in writing from either my wife or I.

 

In my wife's case, she originated the loan with one creditor and the OC sold the account to the second creditor...almost a similar situation as the Edeh case except that Edeh was dealing with a collector who bought the debt not another creditor.  My wife did have an establish business relationship with the second creditor because that was passed onto them by the OC but, as I said, they called my cell phone, not our landline.

 

Well, look at you BV80...you have a new job now.  However, it does not make your argument any more persuasive. 

 

The courts are all over the place on who can file a claim while the TCPA says that "a person" (usually taken as anyone).  It most certainly does not say the "called party".   The TCPA refers to "called party" when it speaks about who can give prior express consent and, as you say, "for which the called party is charged". 

 

Buslepp v Improve Miani explains my point here:

 

Plaintiff argues that §227(B)(1)(A)(iii) is phrased with the disjunctive "or" separating various clauses. Thus, if a call is made to a telephone number assigned to a cellular telephone service, such as in the present action, than that allegation is sufficient to assert a claim. A plaintiff could alternatively state a claim if his telephone number is assigned to any service for which the called party is charged. The Court agrees with Plaintiff's interpretation of this unambiguous statute. Because Plaintiff uses a cellular telephone service, he need not separately allege that he was charged for the call

 

What this court says is the part of the TCPA which states "charged for the call" is for some other service besides a cell phone where a person is "charged for the call".  Collectors try to use this part of the TCPA to say that a person must be charged for a call when cell phone usage stands alone and a person does not need to be charged for the call to have a claim.

 

Other courts try to use this same section to say, as you are saying, that the person filing a claim for violations of the TCPA must be a called party.  This is a streeeeeetch because, as in my district Swope v Credit management states:

 

Defendant makes a related, facial challenge to plaintiff`s statutory standing by arguing that she does not allege in the complaint that she is the "subscriber" to this cell phone. Based on my conclusion that plaintiff has standing if she is the regular user and carrier of the cell phone that is at issue in this case, plaintiff must allege these facts. However, there is no requirement in the statute that the plaintiff must actually be the "subscriber" to the cell phone.

 

It just happens that Swope was the subscriber to a cell phone service but the court said that it was not necessary for standing.

 

I had trouble finding the Page case also but another person gave me a Word document with the case.  The Page court clasified the plaintiff as the "subscriber" to the phone even though it was registered in his fiancee`s name because he was "the regular user and carrier of the cell phone, as well as the person who needs the

telephone line to receive other calls". 

 

So here the party was not "charged for the call" but still considered the "called party".  It's hard to keep the rulings separate because the courts are, as I said, all over the place with defining who is who and what is what.  I'm just happy to find a case in my home district which says that anyone can file a claim which equates to anyone can receive damages if the violations are valid.

 

Nope, I'm afraid that 6 calls would not be enough to pay for attorneys to go after a major creditor.  12 might not be enough.  The thing here is that the creditor can just stall for months and my attorney fees would accrue.  How long do you think it would take my attorneys to throw in the towel, if they even took the case in the first place? I'll probably have to go alone on this one as my time is not figured at the same rate as attorneys.

 

I have no idea how to attach a file but if you'll tell me how I'll attach a Word document for the Page case...or I can pm it...or email it.

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Well, look at you BV80...you have a new job now.  However, it does not make your argument any more persuasive.

 

I wouldn't pretend that a new "job" would make an argument more persuasive.  I've always debated and offered case law.  I'm doing nothing differently.  You specifically stated "all input welcome".  

 

None of the case law you've cited has to do with 2 people claiming violations for the same calls on one phone and thereby doubling the amount of calls.  Yes, if you go forward, yours would be a test case.  If you succeed and the case is published, it would be wonderful for everyone, and I wish you the best of luck.  If you lose, so be it.  You won't be the first or the last to lose a case.

 

You have an attorney, so why are you asking for opinions here?   Next time you state "all input welcome", it might be useful if you would qualify your statement by including "unless you disagree with me."   In that case, those who might have a differing opinion or who offer case that doesn't necessarily support your opinion won't waste their time.

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Normally you cite case law to support your position.  This time you have not probably because there isn't a court in the land that has dealt with this particular issue.  As with the cases I cited, the court said that other courts who have decided it is the "called party" who has standing have not explained why they have narrowed the claimants to "called party". 

 

 

 

If a "called party" with respect to § 227(B)(1)(A)(iii) is the intended recipient, the moral of the story is that consumers who acquire new cellular phone numbers and wish to avoid unwanted calls bear the responsibility of determining whether or not a prior owner of the number ever gave consent to any lending institutions to be called. If the "called party" is the actual recipient, the moral is that companies who make automated calls bear the responsibility of regularly checking the accuracy of their account records or placing intermittent live verification calls. Viewed from this perspective, it seems to the Court that entities like Wells Fargo — which already keep records of accounts and phone numbers — are in a much better position to bear this responsibility than are individuals like Breslow. The Plaintiffs' interpretation is more reasonable to this Court and others, absent an indication from Congress or the FCC to the contrary.

 

Accordingly, the Court finds that the "called party" for the purposes of § 227(B)(1)(A)(iii) was not Former Customer, but the Plaintiffs. Breslow v. Wells Fargo Bank, NA, 857 F. Supp. 2d 1316 (SD Fla. 2012).

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I wouldn't pretend that a new "job" would make an argument more persuasive.

 

I think you took what I said out of context. Maybe I should have put a smiley face after my comment. What I said was innocuous. How you responded was purposely constructed to offend.

 

I found that I had to switch to the full editor to attach a file. Now you, and anyone else, can read the case

 

Nascar, I'm going to read what you posted but I might not get back to it until tomorrow.  I didn't see that you posted before I got my answer to BV80 so I'm having to edit what I originally posted so what I said makes sense.

Page v Regions bank.pdf

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I think you took what I said out of context. Maybe I should have put a smiley face after my comment.

What I said was innocuous. How you responded was purposely constructed to offend.

 

I don't understand your post. In any event, J. Scola's opinion in the Breslow case is the most well-reasoned explanation on "called party" that I have seen. Even better than Soppet. The passage I posted clearly shows that at least one court has, in fact, explained what makes a person the "called party." (Wells Fargo happens not to agree, however)

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I think you took what I said out of context. Maybe I should have put a smiley face after my comment. What I said was innocuous. How you responded was purposely constructed to offend.

 

I'm not sure how my comments were offensive but since you perceive them to be so, I apologize.  Even though I did not take your comment out of context, I still wish you the best of luck. 

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I don't understand your post

 

Nascar, I was talking to BV 80 but you may have read that post before I edited.  You know how it is, sometimes somone slips a post in before you answer and it looks like you're talking to the person who just posted and not the person before.

 

I downloaded the case last night and only briefly looked at it.  I will read it now and get back to the thread with my thoughts.  However, I cant help but think, with what I've read thus far, that since "a person" (which I take as anyone) can file a claim it would reason that anyone can be awarded damages.  What would be the point of letting anyone file a claim and then narrowing the damages to "called party"?  I don't get it.  Especially since, in my district, it has also been ruled that one does not need to be the subscriber (Swope v Credit management).

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Nascar, I just read the case for the first time and there is a lot of useful opinion.  To begin with this court also states that:

 

Under § 227(B)(3), a person or entity may bring an action to recovery actual monetary loss for a violation of the above prohibition,

 

Again, they don't limit the claimant to "called party" although they do find that the minor was a called party...like a lot of courts.  What I really need to see is where a court dealt with a husband/wife, girlfriend/boyfriend situation where they both sued for the same calls. 

 

The court does nice job of explaining the exemption for landlines and debt collectors:

 

Significantly, the TCPA's residential calls prohibition is contained within a separate subsection from the cellular calls prohibition.  Compare 47 U.S.C. § 227(B)(1)(A)(iii) (prohibiting automatic calls to cellular telephone numbers, among others), with Id. at § 227(B)(1)(B) (prohibiting automatic calls to any residential telephone line). The different provisions also provide different exemptions: While both exempt calls made with the "prior express consent of the called party," the residential calls prohibition also authorizes the FCC to promulgate rules creating additional exemptions. Id. at 227(B)(1)(B). Pursuant to that authority, the FCC further

exempted from liability "any telephone call to any residential line" unless the call "is made to any person with whom the caller has an established business relationship at the time the call is made." 47 C.F.R. 64.1200(a)(2), (a)(2)(iv) (emphasis added).

 

I also like where the court laid responsibility on the creditor for their contact number being accurate.  You already posted that section.

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I just talked with the attorney working another case for my wife.  He said that he thought they would not take the case because of only 6 calls.  I asked about willful damages and he said he thought it would take malice for that.  I told him that I've read cases were the courts have said that no malice is needed, just intent.  He said that malice was just his opinion.  I also asked him about the double violations for the 6 calls because my wife was an intended called party who had also not given prior express consent.  He thought that only the "called party" could get damages.  He only had 10 minutes to talk so I did not have much time to argue my point, I suspect this will be a hard case to sell for the above reasons...not just the double damages. 

 

I've heard other people say to answer the phone calls and record the conversation.  I say to let the phone ring and ring and ring so the phone calls add up.  I can assure you, if either of us miss a payment again and the creditor calls, that is what we will do. 

 

It ain't over yet because they have not turned down the case.  The lawyer I talked with was just one of many and he does not approve the cases.  I may file myself for the two of us.  If my wife loses then she will have to pay their court costs, which would probably only be $500, or so.  I should get at least $3,000 and my court costs. 

 

I'm going to look into the class action Nascar spoke of.  I might be able to get a couple of thousand without doing a thing other than signing the check. 

 

Moral of the story...let the phone ring and ring and ring and ring.

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