District Court (Fla.) Denies TCPA Plaintiff’s MSJ Premised on Plaintiff Having Revoked Consent to Call

Miller submitted an affidavit in which she attested that every time she spoke with a Ginny’s representative, she requested that Ginny’s stop calling her, that she would not make payment, and that she preferred to receive written bills every time that she spoke with a Ginny’s representative. Doc. 24–1 ¶ 4. Miller also attested that when she received calls from Creditors such as Ginny’s, she would identify herself but be cautious about what personal information she would provide over the telephone. Id. ¶ 3.  Ginny’s submitted an affidavit from its credit compliance consultant, who was involved in the administration of the Account and who had personal knowledge of Ginny’s practices and procedures. Doc. 30–1 ¶ 2; Chamberlain Depo. 34:16. The credit compliance consultant attested that if a customer confirmed his or her name, the 313 action code would not be used. Doc. 30–1 ¶ 14. Because the action code 313 was the only code used for answered telephone calls, the compliance consultant attested that Miller never (1) identified herself, (2) instructed Ginny’s to stop calling her cell phone, (3) told Ginny’s that she would not make payment on the Account, or (4) told Ginny’s that she preferred to be contacted in writing. Id. ¶¶ 16–17. Additionally, during a deposition, the credit compliance consultant stated that if a debtor requested that Ginny’s stop calling, the request would be recorded in its system. Chamberlain Depo. 26:19–21.  Courts have repeatedly held that where evidence conflicts as to whether consent was orally revoked, summary judgment is not proper. . . .Indeed, Miller’s reply highlights the existence of a factual dispute here. In the reply, Miller contends that the Court should not credit Ginny’s records because they “reflect an incomplete and flawed history of the collection efforts against” her. Doc. 31 p. 4–5. In essence, Miller’s reply requests that this Court make a credibility determination, and find her sworn statement regarding oral revocation more credible than Ginny’s records and the affidavit of Ginny’s compliance consultant. However, the Court may not do so in ruling on a motion for summary judgment. . . . In doing so, the Court concludes that the evidence regarding Miller’s oral revocation of consent is disputed. Accordingly, Miller is not entitled to summary judgment on her TCPA claim.