TCPA - For Whom the Cell Tolls.. it Tolls for me, apparently

[Weary Traveler]

Well, here's an area that I haven't done much exploration or had any need to...until the last week or so.

 

So here's a scenario:

 

A consumer has a relationship with an original creditor and eventually due to an unemployment stent (like many of people across the globe) goes into default.  The OC has a contact number for the consumer, but that number is no longer valid, because it's been disconnected.   The consumer's new cell phone number is unlisted, unpublished and has never been given to the Original Creditor.

 

Approximately 3.5 years later, the OC hires the collection agency "Will We Annoy Him, and how!" to collect on their debt.  somehow these people ascertain the number of the consumer and begin a tri-weekly number dialing game to contact the consumer.  Since this number was never given to any creditor, would this be considered a TCPA violation? 

 

 

[debtzapper]

How are you being contacted?  Live calls or pre-recorded calls? 

[Weary Traveler]

How are you being contacted?  Live calls or pre-recorded calls? 

 

It appears to be pre-recorded auto-dialing.  They never leave any message.

[debtzapper]

The particular phone number you gave the OC when you orginally applied for credit was the only number for which they had your permission to contact you. 

 

"Consent to call a given number must come from its current subscriber."  "Soppet v. Enhanced Recovery,"  (7th Cir. 2012).

[BV80]

Most, if not all, CAs use autodialers.  However, if they don't leave a message, how do you know anything is prerecorded?

 

In any case, this is from the 2008 FCC ruling:

 

We emphasize that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.

 

If your old number was the one you provided when you opened the account, that's the number that was provided during the transaction that resulted in the debt.  If you never gave them your new number, in my opinion, there's no consent.

[neweuquol]

Definitely a TCPA violation if this cell phone number was never given to the creditor and they are using a predictive dialer.

[debtzapper]

What do you mean by a "tri-weekly dialing game," but you also say they "leave no message."  So, exactly what are you hearing?

[cjb3]

Well, here's an area that I haven't done much exploration or had any need to...until the last week or so.

Since this number was never given to any creditor, would this be considered a TCPA violation? 

 

Yes it is.

 

Start getting your ducks in a row NOW.  Remember, the TCPA is a strict liability statute.  So getting a settlement should be very doable.

 

   1 - Document the calls by taking a picture or scanning your cell phone showing the info for each call.

 

   2 - Delete your cell phone history of all non-CA calls, keeping the CA call history at the top of your call log for easy access in case, during your Federal Court case,  it is needed as additional evidence.

 

   3 - Yes, I said Federal Court.  You are going after the BEHAVIOR of the CA SEPARATELY from the OC.  This is not about the debt with the OC, its about the violation of law by the debt collector.  Understand the difference.  they will try to make it about the debt, but you must keep to the issue of the violation of law.

 

   4 - The next sentence is going to be understandably be the most contraversial as it goes against all the good advice on this board.  You will call and talk to the CA on the phone...........there, I said it.  Clearly you are not gonna make the phone call now.  the call will happen after your homework is done and you feel comfortable enough to control the conversation.

          Homework

               A - if you don't have one, buy a mic for your puter and practice making recordings.  I just put my phone on speaker close to the mic.  I believe all puters have a recording software built-in.  I use Nero myself as it saves audio into an MP3.

              B - The purpose of making the call is to establish 1) they never had your consent to call you 2) they use automated phone equipment and 3) to stop further calls.

               C - Clearly, when you talk to them, you ARE NOT gonna start spouting off federal law privacy rights, etc.  They are gonna want your SS#, etc to verify your account.  This is utter hogwash.  Knowing what I know about Call Centers, when you call in on the phone number they called you on and you are talking to a person, they already have your account on their screen.  They want to talk about the debt, however, you are gonna control the conversation.

The only info you are gonna give them is your phone number and your name.  Your will never answer any questions about the debt.  You will ask questions like,  "why are you calling my unlisted number," "I have received X number of calls from you and why do you hang up on me when I answer," "I never gave you permission to call me before and stop calling me," "what is your name and company name," "where are you located," etc.

Don't answer any questions from them always be the one asking questions and don't stop until you get an answer.

               D - Ideally, you should role play with someone until you are comfortable enough to make the call.  If you are able to get some kind of answer that is favorable to you, then go on to the next.  Even an answer to your "why do you always hang up on me" question of "it must be our phone equipment"  will go a long way is proving the auto dialer requirement, even though we all know they use it.

 

   5 - Set up and turn on you recording and make the call.

 

Were all the calls you received from the same number or several different numbers?  I say this for a potential complaint to the AG's office for spoofing, as well as additional ammo for settlement talks.

 

If you were called from several different number and the call was spoofed, call each number, recorded of course, and ask them something like "if you are in the state of X, why does this number have an area code and prefix for the state of Y?'  You want to get the spoofing evidence recorded.

 

Your phone call really shouldn't be all that long 5 - 10 minutes.

[nascar]

It appears to be pre-recorded auto-dialing.  They never leave any message.

 

How do you know who the calls are coming from?

[BV80]

  3 - Yes, I said Federal Court.  You are going after the BEHAVIOR of the CA SEPARATELY from the OC.  This is not about the debt with the OC, its about the violation of law by the debt collector.  Understand the difference.  they will try to make it about the debt, but you must keep to the issue of the violation of law.

 

 

We don't yet know that TCPA violations have been committed.  But if they have been committed, TCPA suits can be filed in state court.

[KentWA]

We don't yet know that TCPA violations have been committed.  But if they have been committed, TCPA suits can be filed in state court.

 

Yes, indeed. In fact I always recommend that you file in State Court if the fees are less than Federal Court. If they are not located in your state they are highly likely to remove to Federal Court and pay the fees for you. If you file TCPA/FDCPA/FCRA suits, you need to be prepared to be in Federal Court. This is not difficult and in fact I prefer Federal Court.

[howucan2]

Being a sucessful TCPA Plaintiff there are a few things to consider.

 

Even though, OP never given consent it's important to send a CMRR letter revoking consent by saying there was no consent to begin with and calls must stop to OP's cell number xuxyzw.

 

The burden is on the OC to prove they had consent to call the cellular number (OC must show records or audio of the consumer giving consent) Most OCs don't have those records after 2.5 years had passed (I know in two cases during the discovery they admitted not having record).

 

Sometimes predictive dialers hang up after the call is picked up, if OP can provide phone records that he/she recieved calls for less than a minute that would be a good sign of it . I had a CA calling without leaving messages it happened to be that everytime the call was answered there was dead air at the other end.

 

For call frequencies do take picture of the caller ID , specially in Federal/ district court those are slam dunk win.

 

I recommend TCPA be filed in Federal court after "Mims vs arrow financial" SCOUTUS decision.

[BV80]

I recommend TCPA be filed in Federal court after "Mims vs arrow financial" SCOUTUS decision.

 

Why?

[nascar]

 

Quote

I recommend TCPA be filed in Federal court after "Mims vs arrow financial" SCOTUS decision.

 

Why?

 

Federal judges are far more educated on the law than typical state court judge. Most state court judges have probably never heard of TCPA.

[BV80]

Federal judges are far more educated on the law than typical state court judge. Most state court judges have probably never heard of TCPA.

 

Makes sense.  Thank you.

[debtzapper]

Makes sense.  Thank you.

 

 

In my state, at least in the early years of the TCPA,  small claims court judges would dismiss TCPA claims sua sponte.  Then upon to  the Court of Civil Appeals, the case  would remanded back to them.   But that's not true in all states.  Ohio courts have been deciding TCPA cases almost since the law was passed.

[nascar]

  Ohio courts have been deciding TCPA cases almost since the law was passed.

 

Thanks in large part to Philip Charvat

[debtzapper]

Thanks in large part to Philip Charvat

 

Yep, he's the Man.  Filed around 60 or 70 cases.  He started out pro se in OH courts, then with counsel started litigating in fed dist courts and the 6th cir.  He's awaiting that court's decision in "Charvat v. Echostar," on the issue of vicarious liability in telemarketing calls.

[nascar]

 He's awaiting that court's decision in "Charvat v. Echostar," on the issue of vicarious liability in telemarketing calls.

 

Issue of vicarious liability already settled. See In re Jiffy Lube Intern., Inc., Text Spam Litig.., 847 F. Supp.2d 1253 (S.D. Cal. 2012)

[debtzapper]

Issue of vicarious liability already settled. See In re Jiffy Lube Intern., Inc., Text Spam Litig.., 847 F. Supp.2d 1253 (S.D. Cal. 2012)

 

Yes. In the "Echostar" case, however,  the court was trying to resolve what it said were "ambiguities" in the in "on behalf of" language found in 227( (1) of the TCPA and  227 © (5) of the TCPA, as well as the common carrier vicarious liability provision in USC 217.

 

The 6th Cir decided to invoke the primary jurisdiction doctrine so that the question could be referred to the FCC for a decision, and the case has been stayed pending that decision.  It's going on three years now, but supposedly a FCC decision may be near at hand.

[Weary Traveler]

What do you mean by a "tri-weekly dialing game," but you also say they "leave no message."  So, exactly what are you hearing?

 

When they call, and I answer the phone...there's a long pause, like the call is being connected to someone.  I guess it's similar to the telemarketing delays that we've all experienced over the years, as your call is routed to someone.  I have no intention of speaking to them on the phone though.

[Weary Traveler]

Being a sucessful TCPA Plaintiff there are a few things to consider.

 

Even though, OP never given consent it's important to send a CMRR letter revoking consent by saying there was no consent to begin with and calls must stop to OP's cell number xuxyzw.

 

The burden is on the OC to prove they had consent to call the cellular number (OC must show records or audio of the consumer giving consent) Most OCs don't have those records after 2.5 years had passed (I know in two cases during the discovery they admitted not having record).

 

Sometimes predictive dialers hang up after the call is picked up, if OP can provide phone records that he/she recieved calls for less than a minute that would be a good sign of it . I had a CA calling without leaving messages it happened to be that everytime the call was answered there was dead air at the other end.

 

For call frequencies do take picture of the caller ID , specially in Federal/ district court those are slam dunk win.

 

I recommend TCPA be filed in Federal court after "Mims vs arrow financial" SCOUTUS decision.

 

This is exactly what's happening.  When I answer, there's "dead air" and I hang up.  I'm currently saving screenshots of every call from my phone and I have the telephone record documents showing the incoming call from Verizon.

 

There was never any consent to call this number, as the OC was never given it.  All numbers that the OC would have had have long since been disconnected.

 

I was reading a recent 9th Circuit opinion on a case Meyer vs. PRA. The 9th circuit amended their original decision when they refused to hear PRA's appeal and further clarified, stating:

 

Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed. Id. at 564-65. PRA did not show a single instance where express consent was given before the call was placed. Id. at 565.

 

I also found a rather interesting read on a debt collector website where a shill attorney for the collection industry was crying about the Federal Court in Wisconsin determining that a predictive dialing system where the debt collector presses a button on a computer screen to call someone constitutes a TCPA violation.  The court wrote:

 

 

Regardless whether preview dialing falls outside the scope of § 227(a)(1) and the FCC’s order, I agree with plaintiff that defendant’s argument is another red herring. Under both the statute and the order, the question is not how the defendant made a particular call, but whether the system it used had the “capacity” to make automated calls. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009) (“[A] system need not actually store, produce, or call randomly or sequentially generated numbers, it need only have the capacity to do it.”) (emphasis added).

 

 

 

 

[BV80]

@Weary Traveler

 

You know they use an autodialer.   That could also be proven through discovery.  However, now you need precedent regarding abandoned calls and debt collectors.  The "dead air" calls would be considered abandoned.

[Weary Traveler]

@Weary Traveler

 

You know they use an autodialer.   That could also be proven through discovery.  However, now you need precedent regarding abandoned calls and debt collectors.  The "dead air" calls would be considered abandoned.

 

BV80: Can not the fact that they're making calls to an unlisted, unpublished number to which expressed consent was never given, establish precedent to other similar Federal cases?  You mention call abandonment, but is that really required?  It seems from what I've read thus far, that simply making calls to number using a predictive dialing system would constitute a violation, regardless of whether or not the collection agency abandoned the call. Just wondering if I'm missing something here.

[BV80]

Never mind.  I was thinking about something else.  ...sigh...