In Ginwright v. Exeter Finance Corp., No. CV TDC-16-0565, 2017 WL 5716756 (D. Md. Nov. 28, 2017, the District Court rejected applying Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), which held that contractually bargained for consent under the Telephone Consumer Protection Act (“TCPA”) cannot be revoked. The court in Ginwright went on, however, to deny class certification as issues of consent in the debtor – creditor context would require mini-trials.
Ginwright provided his cell phone number on the credit application to the dealer when he purchased a vehicle. The retail installment sale contract (“RISC”), also signed by Ginwright, contained an autodialer consent clause but did not include a specific phone number. The court found that the RISC necessarily ran to Exeter who took assignment of that contract, but the credit application, in which the customer’s cellular telephone number was found, did not. Moreover, the Court found that the RISC’s integration clause was not sufficient to encompass the credit application and instead was “boilerplate.” Ginwright, 2017 WL 5716756, at *6. Accordingly, the Court evaluated consent and revocation under the standards set forth in the FCC rulings and in Osorio v. State Farm Bank, FSB, 746 F.3d 1242, 1255-56, finding a triable issue of material fact.
Despite the Court’s ruling on Reyes, the Court properly denied class certification of the TCPA case. The court found that Exeter did not have uniform credit applications or RISCs for its customers and, accordingly, the individual contracts and communication with the customers would need to be evaluated on a case by case basis to determine and consent or revocation. Such analysis would require mini-trials, the class action was not manageable, and the Court denied class certification. Id. at*9-10.
A copy of the decision is here: Ginwright – Order