District Court (Cal.) Grants Summary Judgment to TCPA Third Party Debt Collector; Plaintiff Cannot Defeat MSJ By Arguing No Consent When Debt Collector Had Good Faith Basis to Believe that Plaintiff Gave Prior Express Consent to Original Creditor

In Chyba v. First Financial Asset Management, Inc., 2014 WL 1744136 (S.D.Cal. 2014), Judge Benitez found that even if Plaintiff created a triable issue of fact as to whether she gave prior express consent to be called on her cellular telephone, a third-party debt collector had a good faith basis to believe that Plaintiff had provided consent to the creditor on whose behalf Defendant sought to collect a debt. Accordingly, the Court granted the defendant’s summary judgment motion on the Plaintiff’s TCPA claim.

Defendant claims that it had consent because Plaintiff provided her cellular telephone number to Enterprise, listing it as her home telephone number. (MSJ at 10–11). Defendant claims Enterprise then gave this information to Defendant. (Id. at 11). When a consumer provides a cellular telephone number to a creditor as part of the underlying transaction, the provision of the number constitutes express consent for the creditor to contact the consumer about the debt. In re Rules and Regs. Implementing the Telephone Consumer Protection Act of 1991, 23 F.C.C. Rcd. 559, 564–65 (2008) (2008 Ruling); Chavez v. Advantage Grp., No. 12–cv–2819, 2013 WL 4011006, at *2 (D.Colo. Aug. 5, 2013) (also noting that district courts do not have jurisdiction to review the 2008 Ruling). Calls placed by a third-party debt collector on behalf of the creditor are treated as if the creditor itself placed the call. (2008 Ruling at 565). Furthermore, if there is a question as to whether express consent has been provided, the burden is on the creditor on whose behalf the call is made, and the creditor bears responsibility for violations of FCC rules for calls made on its behalf. (Id.)  ¶  Defendant admits to being a third-party debt collector. (Pl.’s Req. for Adm. at 2:23–25). As discussed above, Defendant has produced undisputed evidence that it was acting to collect a debt for Enterprise. Therefore, if Enterprise had Plaintiff’s express consent to call her phone, then Defendant is excepted from liability under TCPA.  ¶  However, Plaintiff disputes that she ever gave Enterprise her consent. Plaintiff disputed the debt on July 9, 2012 (Def.Exh. F), denied giving Enterprise her number (Opp’n at 8), and has also stated that she cannot recall whether or not she rented the car (Pl. Exh. I at 37:16–18, 39:19–40:3). Defendant has produced a copy of a rental agreement between Enterprise and “Pamela Chyba.” (Def.Exh. A). However, a reasonable factfinder might find, despite the variations in Plaintiff’s testimony, that Plaintiff never gave express consent because she never gave her phone number to Enterprise.  ¶ Defendant also argues that it has produced undisputed evidence that it had a good-faith belief that Plaintiff had given her consent, and that this should preclude TCPA liability even if Plaintiff never rented a car or gave her consent to be contacted at that phone number. As stated above, the FCC has stated that the creditor bears responsibility for violations of FCC rules for calls made on its behalf. (2008 Ruling at 565). In the context of FDCPA, the Ninth Circuit has found that debt collectors have a limited obligation to verify the underlying debt. In Clark v. Capital Credit & Collection Services, 460 F.3d 1162, 1174 (9th Cir.2005), the Ninth Circuit found that a debt collector was entitled to rely on the creditor statement’s to verify the debt. The Ninth Circuit cited to case law suggesting that a collector could reasonably rely upon in-formation provided by a creditor who had been accurate in the past. Id. It also held that the FDCPA did not impose any duty on the debt collector to independently investigate the claims. Id . (citations omitted). It would be incongruous with the larger statutory and regulatory scheme to interpret TCPA to require that a debt collector be liable for acting where it had a good-faith basis for doing so.  ¶  Here, the documents provided gave Defendant a good-faith basis to believe that it had consent to contact Plaintiff at that number. The Court notes that the cell number listed as her “home” number. There appears to have been little that the Defendant could have done to further ascertain whether there was consent, except to call Plaintiff at her home number.  In her Opposition, Plaintiff claims that Defendant has failed to provide any evidence on the record of Defendant’s authorization to call the Plaintiff. She also claims that Defendant has no direct or indirect “nexus” with Plaintiff, and there is nothing on the record to show otherwise. (Opp’n at 2). Plaintiff’s characterization of the record is incorrect. Defendant has produced admissible evidence demonstrating that it had a relationship with Enterprise that would allow it to use consent given to Enterprise.  ¶  Thus, although Plaintiff did not give consent directly to Defendant to call her cell phone number, it is sufficient that Defendant had a good-faith basis to believe that Plaintiff had provided consent to the creditor on whose behalf Defendant sought to collect a debt. Even if Plaintiff is correct in stating that she never gave Defendant or Enterprise consent to call, and there was no actual prior consent from Plaintiff, Defendant is not liable for acting in good faith upon the information provided to it.