District Court (Fla.) Rejects Contention that Efforts to Revoke Consent under TCPA Do Not Provide Evidence that Consent was Given in the First Place

In Bresko v. M & T Bank Corp., 2013 WL 5328241 (M.D.Fla. 2013), Judge Moody rejected the argument that efforts to revoke consent under the TCPA is not evidence that the consumer gave express consent in the first place.  The Plaintiff alleged that M & T Bank Corporation (“M & T”) called her mobile cell phone to make collection calls after they knew she retained an attorney to handle the collections issue and after she revoked consent to receive such collection calls on her mobile cell phone. M & T removed the action to federal court asserting federal question jurisdiction under Count II and supplemental jurisdiction under Count I.  ¶  The complaint alleges that on February 16, 2012, Plaintiff’s lawyer sent a letter to M & T that put it on notice of his representation in relation to the collection of a consumer debt. The notice also revoked any all permission M & T may have had to contact Plaintiff on her mobile cell phone. Thereafter, the M & T used automated dialing equipment to place calls to Plaintiff’s mobile cell phone. Plaintiff attached an affidavit to the complaint. The affidavit attached and incorporated a call log purportedly recording calls that M & T made to Plaintiff’s mobile cell phone between February 16, 2012 and November 20, 2012. These phone calls form the basis for Plaintiff’s claims that M & T violated the FCCPA and TCPA. Further, the Plaintiff alleges that the calls constitute harassment and caused her frustration, anxiety, emotional distress, insomnia, embarrassment, and made her feel intimidated and threatened.

Defendant argues that since the Plaintiff alleges that she revoked consent to call her mobile cell phone, it can be implied that she previously gave express consent. Further, Defendant argues that if Plaintiff gave express consent, revocation is therefore invalid. The complaint does not attach any documents showing the circumstances under which the Plaintiff gave her mobile cell number to M & T; therefore the Court cannot evaluate whether she actually gave consent. See Mais v. Gulf Coast Collection Bureau, Inc., 11–61936–CIV, 2013 WL 1899616 (S.D.Fla.2013) (holding that patient did not provide prior express consent for defendants radiology clinic and its debt collector to use his cell phone number when his wife provided it on his hospital admission forms).