District Court (Ga.) Declines to Address TCPA Reyes Defense at the Pleadings Stage Because Consent is an Affirmative Defense

In Weed v. SunTrust Bank, 2018 WL 2100590 (N.D.Ga.), 3 (N.D.Ga., 2018), Judge Duffy declined to rule on a caller’s Reyes defense to an oral revocation claim under the TCPA because the defense is an affirmative defense that the Court declined to rule on at the pleadings stage.

SunTrust argues that Weed consented in the Sale Contract to the calls from SunTrust when he agreed to be contacted “at any address or telephone number you provide, even if the telephone number is a cell phone number or the contact results in a charge to you.” ( [11.2] at 2). SunTrust further argues that this consent was contractual and not subject to oral revocation.Prior express consent is an affirmative defense that is not an element of Weed’s claim. See Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1304-05 (11th Cir. 2015); Etzel v. Hooters of Am., LLC, 223 F. Supp. 3d 1306, 1317 n.15 (N.D. Ga. 2016) (“[e]xpress consent is not an element of a TCPA plaintiff’s prima facie case, but rather is an affirmative defense for which the defendant bears the burden of proof.”) (citation omitted). “[T]he existence of an affirmative defense will not support a motion to dismiss.” Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1225 n.8 (11th Cir. 2016). SunTrust’s express consent defense does not clearly appear on the face of the Amended Complaint and does not otherwise support SunTrust’s motion to dismiss. Consideration of Weed’s consent is simply premature at this stage of the litigation. See Bray v. PNC Bank, N.A., 196 F. Supp. 3d 1282, 1289 (M.D. Fla. 2016) (stating that sufficiency of plaintiff’s allegations regarding lack of consent were not before the court on a motion to dismiss); Brown v. Account Control Tech., Inc., No. 1362765, 2014 WL 11706429, at *4 (S.D. Fla. Mar. 28, 2014) (affirmative defense of prior express consent “is irrelevant at this stage”).