TCPA

In Daniels v. Comunity Lending, Inc., 2014 WL 51275 (S.D.Cal. 2014), Judge Hayes found Plaintiff’s FDCPA and TCPA claims not adequately pleaded. The FDCPA applies to debt collectors, but not to creditors. See Mansour v. Cal–Western Reconveyance Corp., 618 F.Supp.2d 1178, 1182 (D.Ariz.2009). Under the FDCPA, a “debt collector” is “any person who uses any instrumentality of inter-state commerce or… Read More

In Legg v. Voice Media Group, Inc., --- F.Supp.2d ----, 2014 WL 29594 (S.D.Fla. 2014), Judge Cohn found that a TCPA Plaintiff adequately pleaded use of an autodialer as well as that the Plaintiff could and did revoke consent to receive text messages.  This putative class action arose from the allegedly improper transmission of text messages by Defendant Voice Media… Read More

In Murphy v. DCI Biologicals Orlando, LLC, 2013 WL 6865772 (M.D.Fla. 2013), Judge Honeywell found that a blood bank did not violate the TCPA by sending text messages to a prior blood donor who had provided his cellular telephone number in connection with giving blood.  Murphy was paid for donating his blood through a blood plasma center in Orlando, DCI… Read More

In Markovic v. Appriss, Inc., 2013 WL 6887972 (S.D.Ind. 2013), Judge Magnuss-Stinson found that a Plaintiff properly pleaded a TCPA case by alleging that calls used up minutes on his plan. Appriss contends that Mr. Markovic's Complaint must be dismissed because he has failed to allege that he was specifically charged for the allegedly unlawful call he received from Appriss.… Read More

In Betancourt v. Green Tree Servicing, LLC, 2013 WL 6644560 (M.D.Fla. 2013), Judge Moody ordered a TCPA claim to arbitration. This case involves similar claims to those in Ownings v. T–Mobile USA, Inc., 3:12–CV–1385–J–12, 2013 WL 4401824 (M.D.Fla.2013), where the court held that Plaintiff's TCPA and FCCPA claims were significantly related to a cellular contract service agreement. In that case,… Read More

In Lee v. Wells Fargo Home Mortg., 2013 WL 6561783 (W.D.Va. 2013), Judge Moon found a autodialed debt collection calls to a land-line barred by an existing business relationship. Finally, Plaintiff claims Defendant violated 47 U.S.C. § 227 of TCPA. Section 227(b)(1)(B) of the TCPA prohibits using an automated telephone dialing system (“ATDS”) to initiate any telephone call to any… Read More

In Sepehry-Fard v. Department Stores National Bank, 2013 WL 6574774 (N.D.Cal. 2013), Judge Orrick, among other things, found that a debtor had failed to properly plead negligence and TCPA claims against his credit card company.  As to Negligence, Judge Orrick found: In his negligence cause of action, plaintiff alleges that the Financial Entities harassed, intimidated and trespassed on plaintiff and… Read More

In Iniguez v. CBE Group, Inc., 2013 WL 6331207 (E.D.Cal. 2013), Judge Mendez denied a Motion for Reconsideration that sought to argue his previous conclusion that the TCPA does, in fact, apply to auto-dialed debt collection calls to cellular telephones.  The three cases cited and briefly discussed by CBE in this motion for reconsideration fail to show how manifest injustice… Read More

In Fried v. Sensia Salon, Inc., 2013 WL 6195483 (S.D.Tex. 2013), Judge Atlas found that whether an autodialer was used to send text messages under the TCPA was a question best addressed by the FCC, not by the Courts.  Sensia asserts that the “question of whether this system is an unlawful autodialer is primed for resolution by the FCC.” FN27… Read More

In Munro v. King Broadcasting Co., 2013 WL 6185233 (W.D.Wash. 2013), Judge Robart held that a consumer can revoke previously provided consent to receive text messages under the TCPA. As King points out, the TCPA is silent on whether a consumer may revoke previously-granted consent to receive text messages. (Mot. at 4.) It is clear under the statute that damages… Read More

In Ashley v. General Elec. Capital Corp., 2013 WL 6133562 (M.D.Fla. 2013), Judge Steele allowed a TCPA case to go forward on a wrongfully called party theory.  In early June 2012, plaintiff received a telephone call to her cellular phone from defendant. (Id., ¶ 14.) Defendant left a prerecorded voice mail for a person by the name of “Rosa,” seeking… Read More

In Fields v. Mobile Messengers America, Inc., 2013 WL 6073426 (N.D.Cal. 2013), Judge Alsup denied certification of a TCPA class action due to individualized inquiries on the issue of consent. Plaintiffs are consumers who claim to be victims of a cell-phone scam known as “cramming.” This is the practice of “placing unauthorized, misleading, or deceptive charges on a consumer's telephone… Read More

In Leyse v. Clear Channel Broadcasting, Inc., --- Fed.Appx. ----, 2013 WL 5926700 (6th Cir. 2013), the 6th Circuit Court of Appeals  depublished its September 6, 2012 opinion, that we discussed (http://www.calautofinance.com/?p=3120).  The Court’s September 6, 2012 decision had given Chevron deference to the FCC’s ruling permitting the defendant’s calls to Leyse’s residential telephone number and delivery of a prerecorded… Read More

In Mashiri v. Ocwen Loan Servicing, LLC, 2013 WL 5797584 (S.D.Cal. 2013), Judge Lorenz found a TCPA claim adequately pleaded.  First, Judge Lorenz rejected the Defendant’s argument that the TCPA does not apply to debt collectors placing calls to wireless telephone numbers by use of an autodialer: The TCPA contains separate provisions for calls made to residential telephone lines and… Read More

We previously reported on Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Judge Sammartino held that the absence of consent is not a… Read More

The FCC’s February 2012 telemarketing sales rule takes effect tomorrow, requiring telemarketers to have "prior express written consent" before using autodialers to engage in telemarketing.  The February 2012 rule requires telemarketers making autodialed or prerecorded calls to consumer landline or wireless numbers to obtain prior express written consent, thus eliminating the “established business relationship” exception that allowed telemarketers to make… Read More

In Morgan v. Branson Vacation & Travel, LLC, 2013 WL 5532228 (W.D.Okla. 2013), Judge Cauthron granted partial summary judgment on a TCPA claim, finding that ‘good faith’ was no defense to the claim. It is undisputed that Branson placed at least 37 calls to the 6743 number and that those calls were made with an automatic dialing system subject to… Read More

In Onley v. Job.com, Inc., 2013 WL 5476813 (E.D.Cal. 2013), Judge O’Neill found TCPA standing notwithstanding the fact that the Plaintiff was not the subscriber of the cell phone. Plaintiff Peter Olney sued Defendant Job.Com, complaining that Job.com used an “automatic telephone dialing system” (“ATDS”) to call Plaintiff's cellular telephone in an effort to sell or solicit its services without… Read More

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… Read More

In Levy v. Receivables Performance Management, LLC--- F.Supp.2d ----, 2013 WL 5310166 (E.D.N.Y. 2013), Judge Bianco found an absence of consent under the TCPA for a debt collector calling a consumer's cellular telephone where the consumer had given a prior cellular number to the creditor. With respect to the issue of prior express consent, both the FCC and various federal courts… Read More