In Sterling v. Mercantile Adjustment Bureau, LLC., 2014 WL 1224604 (W.D.N.Y. 2014), Judge Arcara affirmed the Magistrate’s recommendation and granted summary judgment to a TCPA plaintiff in a wrong-party called case. The facts were as follows:
Plaintiff is the subscriber assigned to a cellular telephone number previously held by a debtor (“Jane Doe”), who had provided the number to Mercy Hospital as a contact number in connection with her account for treatment ( id., ¶¶ 1, 2, 8, 11). When her account became delinquent, it was placed with MAB for collection, and the hospital provided MAB with the cellular contact number ( id., ¶¶ 3, 6). MAB called the number to collect the debt, but never spoke to the debtor ( id., ¶ 7). After MAB had begun calling the number, it was recycled and reassigned to plaintiff, without MAB’s knowledge ( id., ¶¶ 8, 9). Thereafter, MAB placed 17 calls to the number, using an “automatic telephone dialing system” as defined by the TCPA ( id., ¶¶ 12, 13). These calls were made with the prior express consent of Jane Doe (the debtor), but without plaintiff’s consent ( id., ¶¶ 14, 15). Plaintiff neither spoke to MAB nor asked it to stop calling the number ( id., ¶ 16), and once MAB learned that the number had been reassigned (after plaintiff commenced this action), it ceased placing calls to the number ( id., ¶¶ 9, 10, 18).
The Magistrate’s report found in favor of the Plaintiff:
MAB argues that “[t]he TCPA consent defense should apply if the caller had the consent of either the ‘subscriber’, ‘actual recipient of the call,’ or the ‘intended recipient of the call’ “ (MAB’s Opposing Memorandum of Law [36], pp. 7–8) (emphasis in original). Since it is undisputed that at the time of the calls Jane Doe was neither the “subscriber” to the cellular telephone number nor the “actual recipient” of the calls, the critical question here is whether, as the “intended recipient” of the calls, she can be considered the “called party” under the TCPA. . . In light of that finding, I conclude that MAB may not rely upon the consent of Jane Doe (the intended but not actual recipient of the calls) as a defense to plaintiff’s TCPA claims. See Breslow, 857 F.Supp.2d at 1322 (“the Court finds that the ‘called party’ for the purposes of § 227(b)(1)(A)(iii) was not Former Customer, but the Plaintiffs. The record does not indicate-and Wells Fargo does not argue-that the Plaintiffs ever gave their express consent to be called, or that they gave the number to Wells Fargo in connection with any transaction. Absent a valid defense, the Court finds that there is no genuine issue of disputed fact that Wells Fargo violated the TCPA. Summary judgment as to liability in favor of the Plaintiffs is appropriate”); Soppet, 679 F.3d at 640 (“The phrase ‘intended recipient’ does not appear anywhere in § 227, so what justification could there be for equating ‘called party’ with ‘intended recipient of the call’?”). This conclusion does not force companies such as MAB to “abandon predictive dialers. Other options remain: Have a person make the first call … then switch to a predictive dialer after verifying that Cell Number still is assigned to Customer…. Use a reverse lookup to identify the current subscriber to Cell Number…. Ask Creditor, who obtained Customer’s consent, whether Customer still is associated with Cell Number-and get an indemnity from Creditor in case a mistake has been made.” Soppet, 679 F.3d at 642. “[T]he moral is that companies who make automated calls bear the responsibility of regularly checking the accuracy of their account records or placing intermittent live verification calls.” Breslow, 857 F.Supp.2d at 1322.