In Bally v. First National Bank of Omaha, 2017 WL 4841420, at *2 (E.D.Mich., 2017), Judge O’Mear denied a TCPA Plaintiff’s Motion for Summary Judgment because he hung up and the Defendant did not understand his revocation.
On December 6, 2016, Defendant called Plaintiff in an attempt to collect a debt. During that call, Plaintiff told Defendant to stop calling him, then immediately hung up the phone. See Pl.’s Ex. 4 (audio recording); Pl.’s Ex 1. Defendant’s representative, Marveen Fredrickson, apparently not realizing that Plaintiff had hung up, asked when Plaintiff would be able to make his past due payment. Pl.’s Ex. 4; Def.’s Ex. A (Declaration of M. Fredrickson). Fredrickson contends that she did not hear and understand Plaintiff’s request to not to call him, or she would have brought the matter to the attention of her supervisor, as she had been trained to do. Def.’s Ex. A at ¶¶4-5, 9-10. According to Fredrickson, the supervisor would have removed Plaintiff’s cell phone number from the account. Id. Defendant continued to make collection calls to Plaintiff’s cell phone after December 6, 2016. According to Defendant’s records, ninety-six calls were made to Plaintiff’s cell phone between December 7, 2016, and January 20, 2017. Pl.’s Ex. 6. These calls were made using an automatic telephone dialing system, the “Avaya Predictive Dialer 5.1.” Pl.’s Ex. 7. Plaintiff did not answer these calls.
The Court found a triable issue of fact as to whether the Plaintiff revoked consent to be called.
The evidence shows that Defendant made ninety-six calls to Plaintiff’s cell phone using an automatic dialing system. Plaintiff initially consented to receiving calls on his cell phone by providing his number to Defendant. See Hill v. Homeward Residential, Inc., 799 F.3d 544, 551 (6th Cir. 2015). A party may revoke his consent, however, by “clearly express[ing] his or her desire not to receive further calls.” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1048 (9thCir. 2017). See also Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11thCir. 2014) (called party may orally revoke prior consent). Plaintiff contends that his revocation of consent was clear. Defendant’s representatives, however, aver that they did not clearly hear Plaintiff’s request to stop calling and were unable to seek clarification because he immediately hung up the phone. Reasonable minds could differ regarding whether Plaintiff clearly expressed his desire not to receive further calls from Defendant. Under the circumstances, whether Plaintiff revoked his consent is an issue of fact for the jury.