District Court (Fla.) Refuses to Set Aside TCPA Default Judgment Because Proposed Defenses Were Not Meritorious Anyway

In Coniglio v. Bank of America, 2014 WL 6882294 (M.D.Fla. 2014), Judge Kovachevhich refused to set aside a TCPA default judgment because the defendant’s allegation that it did not use an ATDS was without merit and because Plaintiff had alleged that any consent given to be autodialed on his cellular telephone was revoked.

2. Bank of America alleges it did not use an automatic telephone dialing system Bank of America argues that the dialer it used did not fall within the definition of an “automatic telephone dialing system” (“ATDS”) under the TCPA. Instead, Bank of America claims that the dialer used is “configured to make calls from a list of numbers and according to certain rules.” To the contrary, as Plaintiffs point out, the described dialer is indeed an ATDS under the TCPA because “a predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use of autodialers.” 2008 TCPA Order 23 FCC Rcd. at 566, ¶ 12. According to the Federal Communications Commission (“FCC”), a predictive dialer is: [E]quipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order … [i]n most cases, telemarketers program the numbers to be called into the equipment, and the dialer calls them at rate to ensure that when a consumer answers the phone, a sales person is available to take the call. 2003 TCPA Order, 18 FCC Rcd. at 14091, ¶ 131 (emphasis added). Thus, t2. Bank of America alleges it did not use an automatic telephone dialing system Bank of America argues that the dialer it used did not fall within the definition of an “automatic telephone dialing system” (“ATDS”) under the TCPA. Instead, Bank of America claims that the dialer used is “configured to make calls from a list of numbers and according to certain rules.” To the contrary, as Plaintiffs point out, the described dialer is indeed an ATDS under the TCPA because “a predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use of autodialers.” 2008 TCPA Order 23 FCC Rcd. at 566, ¶ 12. According to the Federal Communications Commission (“FCC”), a predictive dialer is: [E]quipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order … [i]n most cases, telemarketers program the numbers to be called into the equipment, and the dialer calls them at rate to ensure that when a consumer answers the phone, a sales person is available to take the call. 2003 TCPA Order, 18 FCC Rcd. at 14091, ¶ 131 (emphasis added). Thus, the dialing system admittedly used by Bank of America falls within the definition of an “automatic telephone dialing system” (“ATDS”) under the TCPA and Bank of America’s defense is without merit. 3. Bank of America alleges Nelson Coniglio consented to the calls to his cellular telephone Bank of America claims that Nelson Coniglio consented to receiving calls on his cellular phone because he submitted the number with his loan application and in written correspondence. However, as Plaintiffs point out, those documents are from 2006, and on November 30, 2009, U.S. Loan Mitigation, LLC sent correspondence on behalf of the Plaintiffs to Bank of America demanding that it cease and desist any further communication to the Coniglios. Since this Complaint only addresses those calls received after the cease and desist letter, it can be inferred any consent to allow the cellular phone to be called had been withdrawn. Thus, Bank of America’s attempted defense is without merit. he dialing system admittedly used by Bank of America falls within the definition of an “automatic telephone dialing system” (“ATDS”) under the TCPA and Bank of America’s defense is without merit. 3. Bank of America alleges Nelson Coniglio consented to the calls to his cellular telephone Bank of America claims that Nelson Coniglio consented to receiving calls on his cellular phone because he submitted the number with his loan application and in written correspondence. However, as Plaintiffs point out, those documents are from 2006, and on November 30, 2009, U.S. Loan Mitigation, LLC sent correspondence on behalf of the Plaintiffs to Bank of America demanding that it cease and desist any further communication to the Coniglios. Since this Complaint only addresses those calls received after the cease and desist letter, it can be inferred any consent to allow the cellular phone to be called had been withdrawn. Thus, Bank of America’s attempted defense is without merit.