In Wallace v. Optimum Outcomes, Inc., 2015 WL 627944 (E.D.N.C. 2015), Judge Flanagan entered summary judgment for a TCPA plaintiff who had told a debt collector not to call anymore on one cell phone number but continued to receive calls on another cell phone number.
Pertinent to the facts of this case and the earlier one intertwined with it, initiated by complaint filed by plaintiff in Cumberland County District Court May 15, 2012, against ACS (subsequently removed to this court, Wallace v. Absolute Collection Serv., No. 5:12–CV–351–D (E.D.N.C.)), in a letter dated May 14, 2012, plaintiff’s counsel demanded that ACS refrain from contacting his client about a debt owed by an individual named Wesley Wilson (“Wilson”). (Def.’s Exh. 1) (DE 16–1) (“May 2012 Letter”). The May 2012 Letter includes a subject heading which reads “Re: Brad Wallace phone number 919 285 9647,” and states in part: “Do not contact my client or anybody else regarding the collection of any debt or alleged debt whatsoever, specifically including but not limited to an alleged medical debt that you claim someone named Wesley Wilson to owe…. [A] Seventh Circuit decision under the Telephone Consumer Protection Act … holds firmly that bill collectors may not use autodialers to call mobile phone customers unless they gave the creditor permission to do so…. Violations carry a $500 civil penalty, tripled for willful or knowing conduct, per violation, that is, every time your autodialer calls a cell number without the current customer’s permission. You continue to do this at your peril. As your company always denies that it has ever violated the law in any way even if it has indisputably done so, and refuses to pay any settlements it agrees to, there is no use in discussing settlement, so we will simply sue you in the near future …” (May 2012 Letter, 1) (DE 16–1) (emphasis added). ¶ As noted, the following day, plaintiff filed a complaint against ACS, alleging violations of the NCCAA, the FDCPA and the TCPA. Plaintiff and ACS ultimately resolved the suit, and the case was terminated by stipulation of dismissal filed December 4, 2012. Although plaintiff previously had owned cellular telephone number (919) 285–9647, by the time of dispatch of the May 2012 Letter, plaintiff’s cellular telephone number had changed to (919) 753–4712. (Wallace Dep., 63:9–65:21–22) (DE 16–5). It is uncontraverted that plaintiff did not inform defendant of his new telephone number. ACS researched the complaint presented by the May 2012 Letter and found that, while a number of accounts were associated with an individual by the name of Wilson, none matched the (919) 285–9647 cellular telephone number identified therein. (Cass Aff., ¶ 7) (Def.’s Exh. 2) (DE 16–2). Eventually, to avoid calling plaintiff, ACS deleted all telephone numbers associated with the various Wilson accounts which had been placed for collections. (Id. at ¶ 8). ACS maintains technology which prevents the company from calling telephone numbers on existing or new accounts associated with numbers in a “do not call” file. (Id. at ¶ 9). If plaintiff had provided his current telephone number, (919) 753–4712, that number would have been added to the file. (Id. at ¶ 10). Around July 2012, an entity denominated “Revenue Cycle Solutions, Inc.” obtained certain portions of ACS’s business, including, as pertinent here, debt collection assets and data, and the “do not call” file. (Cass Aff., ¶¶ 11–12). The name of that company later was changed to “Optimum Outcomes, Inc.,” the name of defendant here. (Id. at ¶ 11). In November 2012, a creditor assigned a new account to defendant for collection of a debt belonging to Wilson. (Id. at ¶ 18). On two occasions, plaintiff was attempted to be contacted concerning this debt, through its telephone number (800) 752–4172. Plaintiff’s cellular telephone records show that plaintiff received a call from (800) 752–4172 at his (919) 753–4712 cellular telephone number, logged at a two minute duration, on December 20, 2012. (Pl.’s Rule 26 disclosures, 6) (DE 17–1).
Defendant argued that Plaintiff was equitably estopped to bring the TCPA claim, and failed to mitigate his damages, because Plaintiffs’ letter failed to disclose that Plaintiff had a new and different telephone number than the one referenced. The District Court, while suggesting that these might be defenses to a TCPA claim, found the defenses untenable because the question was consent and revocation, not estoppel and failure to mitigate.
Defendant’s argument in support of its motion centers around plaintiff’s asserted misrepresentation of his cellular telephone number in the letter sent by counsel to ACS on May 14, 2012. Defendant argues that, if plaintiff had provided the correct phone num-ber, that number would have been added to a “do not call” file, thereby preventing future calls. Defendant raises this equitable estoppel argument both to support its own motion for summary judgment, and in re-sponse to plaintiff’s motion for summary judgment. Moreover, defendant supplements this argument with contention that plaintiff has breached a duty to miti-gate his damages.. . . Plaintiff’s May 2012 letter instructed ACS (and ultimately, defendant) not to call the number (919) 285–9647. Defendant was unaware of the new number (919) 753–4712 and took no action concerning it. While defendant argues it would have changed its position had it known of that number, so as to include it on its “do not call” list, there was no effort by plaintiff to misrepresent himself. It remained defendant’s obligation under the TCPA not to use an autodialer or prerecorded voice to call “any telephone number assigned to a … cellular telephone service,” 47 U.S.C. § 227(b)(1)(A), including plaintiff’s new cellular telephone number. The TCPA places no affirmative duties on telephone subscribers to notify companies that the subscriber does not wish to be called. ¶ Given the failure of defendant’s equitable es-toppel argument, and by association any defense based on failure to mitigate, there is no genuine issue of material fact as to defendant’s liability under the TCPA. Accordingly, on the issue of liability under the TCPA, plaintiff’s motion for summary judgment is ALLOWED and defendant’s corresponding motion for summary judgment must be and is DENIED. The court turns it attention below to a discussion of the relief to be awarded in this case.