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My wifes cell phone was ringing, so I answered the phone.

 

Me: Hello

Them: (auto message) Please hold for the next available representative.

 A brief hold follows.

Then: Can I speak to Mrs. Gwheelock?

 

Is that a violation? Never heard from these people before (Stellar recovery). First time contact.

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It depends. 

 

From your post, it appears a call was placed to cell phone using an automatic telephone dialing system, not for emergency purposes. The question then becomes whether debt collector has "prior express consent" to call number.

 

If the cellular number was obtained through skip tracing or otherwise surreptitiously obtained, I'd say the call violates TCPA. If the cellular number was given to the creditor as a contact number, and then given from creditor to debt collector, I'd say no violation. 

 

So, you need to determine who the creditor is and if the number was provided to them.

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I'd revoke any possible consent a.s.a.p. so the calls are for sure violations if for some reason there is some type of consent at this time for the calls.    Plus if there is no consent and then you revoke consent, you would have a pretty easy case arguing future calls after they receive the notification are the 1500.00 calls and not just the 500.00 calls.  So revoking consent, even if they don't have consent could kill two birds with one stone.  

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A little history:

In January, 2009, the founders purchased an existing National collection agency in Kalispell, Montana and rebranded the Agency into what is now Stellar Recovery Inc. The Management staff of Stellar Recovery bring over 180 years of experience in the Accounts Receivable Management industry. Stellar Recovery currently has two locations, one is Kalispell Montana and the other in Jacksonville Florida.

Stellar Recovery Inc. is a privately held company. Stellar Recovery acquires and services charged off receivables from credit grantors and financial institutions. Stellar Recovery creates collection strategies and designed asset management platforms which are driven to deliver maximum recoveries reducing costs and increasing cash flows for our clients.

From the TCPA cases I have been reading, I'd either let your wife answer her own phone or just let it ring. You may have a case if you are the one who answers because anyone can file a claim for TCPA damages but a lot of courts, but not all, have been saying that the regular user of the phone is the "called party" and the one who can be awarded damages. If you do a search on me you'll find that I've already dealt with your type of situation.

The FCC has ruled that a number given on an application is prior express consent and some of the courts have followed their ruling. Others have not. So, look at any application your wife has signed to see if your number is there.

You can take a look at this case in your district and get an idea of what I mean

http://scholar.google.com/scholar_case?case=1644430459266593369&q=SENGENBERGER+v+credit+control+services&hl=en&as_sdt=2,14

Here a man gave his cell phone number to a doctor's office and they passed that same cell phone number onto a third party which performed some of the doctor's work. The man did not pay the third party and the third party hired a collection agency to collect. The question was whether the doctor could pass the cell phone number to the third party and thus the collector. The court did not rule on the matter as no one could come up with the application.

I get the idea that your wife somehow created her own debt and gave her number to the OC who passed that number onto the collector. If this is so then the call may be legal and you should revoke prior epress consent. If you have the application and the number is not there then I'd let the collector call until they stop as it is at least $500 per call.

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Also interesting to note is that when they called, it showed a downtown Chicago (312) xxx-xxxx number. A class action suit was filed against them here in IL in January, claiming the same issues here, including caller ID spoofing. I wonder if I should join the class to get $16 when it settles, or go through the tedious steps of DV'ing and revoking consent. I think I'll take the latter.

 

I did look up stellar here where I live. BV is right, they are a JDB, however, a small time player as it looks like they've only filed a dozen suits in a county of 700K in the past year.

 

In looking over our situation, my wife had only 1 bad account that was sued upon by another unnamed JDB. We countered and settled, but if this is the account from them, then we have a breach for reselling the account.

 

I have no qualms about issuing a C&D for them and hoping they bite. I can't imagine getting sued by two different JDBs on the same account. The paperwork trail must be glorious.

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In looking over our situation, my wife had only 1 bad account that was sued upon by another unnamed JDB. We countered and settled, but if this is the account from them, then we have a breach for reselling the account.

 

 

 

 

 

Yea, and I have case law which states that the first JDB has to tell the second JDB that the account is in dispute...assuming that you did dispute the debt. Otherwise, it is a automatic violation.

 

debtzapper, can you attach a file of Nelson v Santander? I can't find it on Google Scholar or Bing. I know you don't agree that anyone can file but here, again, you give a case where a court states that anyone can file a claim:

 

“Noting in [section] 227(B)(1) limits the protections of the statute to the owner of the phone. Rather, that section prohibits the use of automatic dialing ‘to any telephone number assigned to a … cellular telephone service’ regardless who answers or receives the call. Further, 47 U.S.C. [section] 227(B)(3), which creates a private right of action for violations of the statute, does not limit lawsuits to those brought by “subscribers’ or ‘called parties,’ but applies to ‘a person or entity’. ***”

 

I wish I could find a husband/wife situation where one of them was called by a debt collector and both of them sued. This would probably settle whether two people could sue for the same phone calls, depending upon the ruling.

 

 

 

 

I wonder if I should join the class to get $16 when it settles

 

 

 

 

 

Maybe if you get a hundred calls. If you only have 5 or 6 (like me) then you'd be better off filing by yourself, especially since your debt collector is small and will probably roll over quickly.

 

 

 

I have no qualms about issuing a C&D for them and hoping they bite.

 

 

 

But you should not if you are sure that they do not have prior express consent. As you probably well know, the TCPA does not provide for attorney's wages. You can get court costs according to Rule 54(d) but most of your money would come from the amount of phone calls made.

 

You first need to find out what debt the collector is calling about but if she only had one then it's pretty much a given that it is still the same one. I'd let them call until they did not call again. The TCPA has a sol of 4 years. Just sit back and let the phone ring. Take pictures of the incoming calls. Save all messages.

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I wish I could find a husband/wife situation where one of them was called by a debt collector and both of them sued. 

 

 

I do too, but you aren't going to find one. Your theory of recovery is inconsistent with the most basic doctrines of remedies.

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I do too, but you aren't going to find one. Your theory of recovery is inconsistent with the most basic doctrines of remedies.

 

 

I have a question related to this. The subject has never come up here. Can two pro ses join as co-plaintiffs in one case? Or would the court view this as a situation where one person (or both) might be representing the other?

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Your theory of recovery is inconsistent with the most basic doctrines of remedies.

 

 

I don't get what you mean here. 

 

I get the idea that you and debtzapper think this is some sort of double dipping. I know that you two believe that I was the only one who had my rights violated since the collector called my cell phone.  However, I've posted case after case, one in my very district, which states that the TCPA does not narrow the class of people who can file a claim to "called party". 

 

My wife had her rights violated too because she never gave her prior express consent to call my number.  Some courts have said that she could give prior express consent if she put the number on the contract, regardless to whom the phone number belonged.  The FCC has certainly ruled that a number on a contract is pec.  So if the husband can lose his case because the wife put his number on the contract (and I believe that is what happened) then the wife can win her case if she sues because she never put the phone number on the contract thus never gave pec. They did not have my pec and they did not have her pec.  We were both violated each time the creditor called.

 

At this point, I'm sure that she can file a claim without having it dismissed outright.  There is enough case law to support this.  What remains to be seen is how a court will respond to the "called party" theory.  The main point about violations is that the TCPA  prohibits the use of automatic dialing ‘to any telephone number assigned to a … cellular telephone service’ regardless who answers or receives the callSo its a violation simply because the creditor used an atds no matter who answers the phone.  And the TCPA creates a private right of action for violations of the statute,  and does not limit lawsuits to those brought by “subscribers’ or ‘called parties

 

Now why would the TCPA allow anyone to file a claim for a violation and then (somehow) say that damages were narrowed to "called party"?  The TCPA does not say that, just some courts have misconstrued from other sections of the TCPA where the TCPA is talking about prior express consent or being charged for the call.  Those sections are entirely different sections and have nothing to do with the private right of action. 

 

The reason there is no case law is because attorneys are reluctant to go out on a limb. They generally go for the easy safe money.  I don't fault their reasoning because they are in the business of making the  quickest easiest money and then going on to the next case.  However, this does not establish whether husband and wife can sue for the same phone calls.   

 

Does anyone have a link to Nelson v Santander?

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However, I've posted case after case, one in my very district, which states that the TCPA does not narrow the class of people who can file a claim to "called party".

 

That's true and no one disagrees.  However, you have to study the details of those cases.  You can't just pick a citation and apply it to your case if the reasons and details that resulted in that citation/decision don't match the details in your case.  I think what Nascar meant is that you're trying to show that 2 consumers can claim TCPA violations to one phone for the same calls thereby doubling the violations.  There's no case law to support that claim.

 

 

My wife had her rights violated too because she never gave her prior express consent to call my number.  Some courts have said that she could give prior express consent if she put the number on the contract, regardless to whom the phone number belonged.

 

What case law states that one can provide the number to ANY cell phone and it's considered permission to call that number?

 

It would help if you cite those cases.  I read a case in which the court ruled that the USER of the phone could give permission to call the user's phone number even though that user was not the subscriber.    

 

If I recall correctly, you stated that her rights were violated because she was powerless to prevent them from calling your number.   Powerlessness doesn't always mean a violation of rights.  If a CA were to call another person looking for me, my rights under the TCPA would not be violated. 

 

 

 

So if the husband can lose his case because the wife put his number on the contract (and I believe that is what happened)

 

 

What case was this?

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What case law states that one can provide the number to ANY cell phone and it's considered permission to call that number?

 

What case was this?

 

 

I think this case answers both of these questions:

 

Osorio v State Farm Bank:

 

In further support of its position that Betancourt could provide prior express consent on behalf of Osorio, State Farm relies upon Gutierrez v. Barclays Group, No. 10cv1012 DMS, 2011 WL 579238 (S.D.Cal. Feb. 9, 2011). In Gutierrez, a husband listed his wife's telephone number on a credit card application, and, after he stopped making credit card payments, the creditor called his wife's cellular telephone using prerecorded messages. Id. at *1. The wife sued the creditor under the TCPA and argued that her husband lacked the authority to provide prior express consent on her behalf because she did not consent to her husband listing her number on his credit card application. Id. at *2-3. The district court determined that a third-party could provide express consent under the TCPA on behalf of a plaintiff if the third-party "possessed common authority over or other sufficient relationship to the" phone. Id. at *3. I find the reasoning set forth in Gutierrez persuasive and in accord with analysis set forth in Meadows. A debt collector should be immune from liability under the TCPA when an applicant represents that a family member's or close acquaintance's phone number belongs to him.

 

 

Returning to the instant matter, I find Betancourt provided express consent under the TCPA on Osorio's behalf. Even though Betancourt and Osorio are not legally married, they live together and continue to raise their son together. It is undisputed that Betancourt and Osorio subscribe together to MetroPCS because their numbers are both included in their MetroPCS family plan. This fact, coupled with the fact that Betancourt represented to State Farm on three occasions that 8626 was her number, demonstrates that Betancourt at a minimum had common authority over the phone. In fact, Betancourt testified that she did not think it was necessary to ask Osorio for permission to list "his" number "because [she] put it down as an emergency contact." (Betancourt Depo. 55:8-22). After considering the record, I find no genuine dispute exists as to whether State Farm had prior express consent to call "Osorio's" number.

 

This may apply to the op as the number called may be listed as a contact number.  I doubt if the collector could come up with verification since the debt has been passed on and passed on again.  In my case, I have a copy of the contract and my cell number is not on it so I don't have to worry about this situation.  I only brought up that a wife can give prior express consent to use the husband's phone.  That's why I said, "So if the husband can lose his case because the wife put his number on the contract...then the wife can win her case if she sues because she never put the phone number on the contract thus never gave pec. 

 

 

I think what Nascar meant is that you're trying to show that 2 consumers can claim TCPA violations to one phone for the same calls thereby doubling the violations.

 

There's no case law to support that claim.

 

 

 

Right, double dipping or taking a second bite of the apple.  I understand that.  Things change.  It used to be that one action of the FDCPA could only be awarded $1,000 but that has changed because courts saw a husband and wife as two people and they both deserved their own damages.  The thing is,someone has to file a claim for any claim to become case law.  I have that FDCPA case law, if you want that too but we'd be getting off track if we start going that way but rest assured, I never say I have case law if I don't.

 

I could not find Gutierrez v. Barclays just to see what that court said.  Do you have that one, and the Nelson case?

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Found the Gutierrez case and have attached it.

 

These undisputed facts are sufficient to show that Mr. Gutierrez possessed “common authority” over his wife’s cellular telephone such that he could give Defendant “prior express consent” for its use of her cellular number, and indeed, that is precisely what happened when Mr. Gutierrez listed her number on the account application

 

 

This case also deals with "called party" and charged for the call.

 

Does anyone have the Nelson case?

Gutierrez-v-Barclays-Group.pdf

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I would go to www.pacer.gov  and get an account, which is free. You can download the Order there.  I think if you accrue less than $15 in charges for a quarter, it's free. In any case, it's 10 cents a page.

 

A county county courthouse  or a college library should have a computer terminal with Westlaw access.

 

"Nelson v. Santander," 2013 WL 1141009 (W.D. Wis. March 8, 2013).

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I just noticed this tidbit in the Osorio case:

 

Even though Betancourt and Osorio are not legally married, they live together and continue to raise their son together.  It is undisputed that Betancourt and Osorio subscribe together to MetroPCS because their numbers are both included in their MetroPCS family plan. This fact, coupled with the fact that Betancourt represented to State Farm on three occasions that 8626 was her number, demonstrates that Betancourt at a minimum had common authority over the phone. In fact, Betancourt testified that she did not think it was necessary to ask Osorio for permission to list "his" number "

 

This court, if I read it right, says that being in a family plan (which 1step mentioned in a different thread) and giving your spouse's number out without asking their permission (and without objection from the spouse) establishes common authority.

 

In this particular case, these facts worked against the consumer but for my case, and the op's, it establishes that the creditor/collector should have prior express from the spouse in debt for the creditor/collector to call.  It reasons, then, that the creditor/collector violates the TCPA when they do not have pec from the spouse, who is in debt, and they also violated the TCPA because the creditor/collector did not have pec from the other spouse, who actually carries the phone. 

 

Debtzapper, I'm going to check out pacer.  It's always been that someone will post a case who has access to either pacer or Westlaw.  Most of the cases can be found on either Google Scholar or Bing.  The few that cannot someone is usually willing to post.

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I just noticed this tidbit in the Osorio case:

 

 

This court, if I read it right, says that being in a family plan (which 1step mentioned in a different thread) and giving your spouse's number out without asking their permission (and without objection from the spouse) establishes common authority.

 

 

Don't read anything into Osorio that isn't there.

 

The determining factor was that the phone was , for all intents and purposes, used as a residential line, accessible to and for the use of, the entire family. Accordingly, J. Middlebrooks determined that the reasoning 11th circuit's holding in Meadows v. Franklin was applicable to this case. Accordingly, this case can be distinguished from those other cases where the subject telephone is under the exclusive dominion and control of one person.

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No, it's there in black and white. Quite often courts do consider tidbits of cases where the situation is different, except for those tidbits.

 

The Osorio court was trying to figure out if the wife could give prior express consent. Two of the deciding factors were that the wife was a subscriber because the plan was a "family" plan which included both phone numbers and the other was that they live together (even though they were not married) which typically means, "what's yours is mine and what's mine is yours". My wife and I have been married for over 17 years and this adage is very true. The Osorio court thought so too.

 

As far as prior express consent goes, take a look at what Gutierrez court said that in a "criminal context" the prosecution could show that they had consent with proof that they had obtained consent from a third party with common authority. Now I know you guys think I am reaching but so do the courts. If my wife could give consent for the police to search our property, because she would be considered to have common authority, then she can also give prior express consent for anyone to use my cell phone because she had common authority.

 

The police certainly would believe, and be correct, that my wife had common authority and would search the premises in a heart beat with her permission - even though I was not their to give my consent. And, the Gutierrez court thought the same thing about the wife giving prior express consent to use the husband's phone number to contact the wife.

 

My argument, then, is that the opposite is true. That is that the creditor/collector could not call without her pec nor could they call without my pec. Either of us could have given pec but they did not have pec from either of us. Since the creditor did not have pec from her, they violated the TCPA and because they did not have pec from me, they also violated the TCPA.

 

If I were dealing with a small innocuous collector, like the op seems to have, I would file in a minute. The most I could lose would be court costs on my wife's case but I would surely prevail on my case for at least $3,000 and get my court costs. However, the creditor I am dealing with has been dubbed "the worst of the worst". I may have a viable argument but they know every dirty trick in the book.

 

Nascar, I haven't had a chance to read the other case you cited from yet but it appears that there was a landline involved and there is a big difference between that and a cell phone.

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Weeeellll,

 

They are now calling her and leaving automated messages on her cell phone 2-3 times a day. I think we shall sit it out. Well, at least until they stop calling.

 

The OC and previous CA never called her cell phone, only the house phone. Therefore, I doubt this one has permission. Conversely, this one has never called the house phone.

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That's probably the case but I'd ask your wife to think back to see if she could remember giving Dish Satellite her number as a contact number.I say this because Direct TV has my cell phone number on their statements. If the new collector could come up with an old Dish Satellite statement with her number on it then they might have prior express consent. It's not likely that they do because you would think that the previous collector would have called that number too...but, you never know.

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I agree...I find it strange that a CA wouldn't call every number possible on their list. They are now being sued by us for caller id spoofing in a class action FDCPA case here in IL.

 

I'm sure I will fine something from Dish. That way I can know with relative certainty. If the number was given out, then certainly it will be revoked.

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My argument, then, is that the opposite is true. That is that the creditor/collector could not call without her pec nor could they call without my pec. Either of us could have given pec but they did not have pec from either of us. Since the creditor did not have pec from her, they violated the TCPA and because they did not have pec from me, they also violated the TCPA.

 

In the Osorio case,  Betancourt provided permission for the number she sued.  She represented that the number was hers.  Osorio claimed it was his number because he was subscriber.  Here's what the court said:

 

"If Osorio could sue State Farm for over $75,000 because the woman with whom he cohabitates with and had a child with provided "his" number to State Farm on multiple occasions, debt collectors would be held liable whenever a debtor lists a family member's number as his own."

 

Notice the court put "his" in quotes.  As stated before, Osorio claimed the number was his because he was the subscriber.

 

The court reasoned that using the plaintiff's logic, if you have a family plan, the subscriber could sue for violations on any phone on the plan and debt collectors would be liable.  The court did not agree with that.  It's who uses the phone that counts.  Betancourt represented that the called number was hers and provided permission to call that number.  She did not provide permission to call a number used by Osorio.

 

Who can grant permission is irrelevant to your case because neither you nor your wife provided permission to call any number.  However, the court's ruling in Osorio shows that more than one member of a family plan cannot sue for violations to one phone.   If the CA called your wife's phone, you could not sue simply because you're the subscriber.  The same goes for your wife.  The CA called your phone.  Her rights were not violated simply because the CA was looking for her. 

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