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CEB Prac. Guide § 2B.04: Calls to Land-lines -- "Initiating" a Call

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In Bonanno v. New Penn Financial dba Shellpoint Mtg. Servicing, Case No: 5:17-cv-229-Oc-30PRL, 2017 WL 3219517 (M.D. Fla. July 28, 2017), the District Court found that the FDCPA affords no right to punitive damages. Shellpoint argues Bonanno's punitive damages and injunctive relief claims under the FDCPA should also be dismissed. The Court agrees. Damages exceeding the $1,000 cap in section… Read More

In Herrera v. AllianceOne Receivable Management, Inc., 2016 WL 1077110, at *1 (S.D.Cal., 2016), Chief Judge Moskowitz held that the TCPA does not apply to debt collection calls placed by an autodialer for debt collection purposes when the call does not include a pre-recorded message.  The facts were as follows: The allegations in Plaintiffs' FAC, filed on June 23, 2015,… Read More

In Zilveti v. Global Marketing Research Services, Inc., 2016 WL 613010, at *3 (N.D.Cal., 2016), Judge Chesney allowed a TCPA claim to proceed, despite intervention in the action by the United States of America. Second, contrary to GMRS's argument that Zilveti has failed to state a claim, the TCPA covers “noncommercial speech,” see Gomez v. Campbell-Ewald Co., 768 F.3d 871,… Read More

In Schweitzer v. Northland Group Inc., 2014 WL 5782991 (S.D.Fla. 2014), Judge Cohn granted summary judgment to a debt collector on a debtor’s TCPA claim. Citibank asserts that Schweitzer's TCPA claim against it fails because Schweitzer consented to be called in connection with the debt upon which Defendants tried to collect. DE 40–1 at 9–12. Schweitzer bases his TCPA claim… Read More

In Luna v. Shac, LLC dba Sapphire Gentlemen's Club,  2014 WL 5324291 (N.D.Cal. 2014), Judge Lloyd denied a Motion to Dismiss a TCPA claim. The facts were as follows. Plaintiff brings this proposed class action against Shac, Club Texting, and CallFire, alleging violations of the TCPA. In January 2014, Plaintiff received an unsolicited text message on his cellular telephone from… Read More

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 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 Moriarity v. Nationstar Mortg., LLC, 2013 WL 3354448 (E.D.Cal. 2013), Magistrate Judge Snyder followed the FCC regulations and found debt collection calls to land-lines exempt from the TCPA. Plaintiff's second claimed violation of the TCPA is of 47 U.S.C. § 227(b)(1)(B). This section makes it unlawful for a person as described above “to initiate any telephone call to any… Read More

In Lynn v. Monarch Recovery Management, Inc., 2013 WL 3071334 (D.Md. 2013), Judge Quarles refused to certify his opinion that a call to a land-line made over VoIP Protocol fell within the TCPA’s “charged call” liability provisions rather than the TCPA’s “land-line” exemption. The facts, recited in more detail below, were that the Plaintiff set up his land-line through VoIP… Read More

In Edwards v. National Credit Adjusters, LLC, 2012 WL 5851288 (Nev. 2012), the Nevada Supreme Court found that a debtor’s port of his land-line to cell phone did not create liability under the TCPA for autodialed calls to the cell phone because the debtor’s providing the telephone number in his application for credit – even if the number was a… Read More

In Hoover v. Monarch Recovery Management, Inc., 2012 WL 3638680 (E.D.Pa. 2012), Judge Gardner allowed a telephonic harassment case to proceed, but dismissed an TCPA “unintended recipient” case based on Meadows as to land-line calls, deferring to the FCC on the subject.  On the harassment case, Judge Gardner found that Plaintiff stated a claim for calls, on average, ten times per… Read More

In Linko v. American Educ. Services, 2012 WL 1439052 (M.D.Pa. 2012), Judge Jones found auto-dialed calls to residential landlines for purpose of debt collection exempt from the TCPA.  Judge Jones explained:   Plaintiffs contend that the Defendants violated the TCPA by contacting Plaintiffs on their residential telephone using prerecorded automated telephone messages without first obtaining prior express consent to do… Read More

  In Shupe v. JPMorgan Chase Bank of Arizona, 2012 WL 1344786 (D.Ariz. 2012), Judge Collins held that plaintiffs stated a claim under the TCPA.Judge Collins found that the consumers revoked the “Established Business Relationship” under the TCPA which otherwise permitted auto-dialed calls to their residential telephone number. The FCC has unequivocally stated that calls made solely for the purpose… Read More

The FCC today issued its Final Telemarketing Sales Rule today.  As to debt collection calls, the FCC noted the distinction between land-lines and cellular telephones, as well as affirming that debt collectors can obtain either oral or written consent to call consumers on their cellular telephones using an autodialer: Moreover, while we revise our consent rules to require prior written consent… Read More

In Zehala v. American Exp., 2011 WL 4484297 (S.D.Ohio 2011), Judge Watson distinguished between ADAD calls to land lines versus cellular telephones, finding that Plaintiff failed to state a claim as to the former but had properly pleaded a claim as to the latter.    As to land lines, Judge Watson found no claim because an established business relationship existed:… Read More

In Daniel v. West Asset Management, Inc., 2011 WL 2412950 (E.D.Mich. 2011), Judge Lujan rejected a TCPA claim against a debt collector based on land-line calls to a debtor.   “Plaintiff Rochelle Daniel filed her third amended complaint against Defendant West Asset Management, Inc. Among its twenty-two counts, the complaint asserts fourteen counts of vio-lating the Telephone Consumer Protection Act (“TCPA”)… Read More

In Bentley v. Bank of America, N.A., --- F.Supp.2d ----, 2011 WL 1097452 (S.D.Fla. 2011), Judge Dimitrouleas held that a Plaintiff might be able to state a claims under the TCPA where calls were placed to the Plaintiff’s cell phone, as opposed to the Plaintiff’s land-line.  Judge Dimitrouleas found that the ‘established business relationship’ exception to the TCPA prohibition against… Read More