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CEB Prac. Guide § 2B.05: "Call" Defined -- Manual Calls

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In Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842, at *12-14 (C.D. Cal. Oct. 9, 2019) , Judge Wright held that LiveVox' manual dial requirement disqualified it from being an ATDS, and nothing in Marks changes that conclusion. The parties agree that all calls DAS placed to Ammons's 3436 Cell Phone used LiveVox HCI. (DSUF… Read More

In Chyba v. Bayview Loan Servicing, LLC, 2016 WL 5405557, at *3–4 (S.D.Cal., 2016), Judge Benitez held that mere ownership of an ATDS and mere allegations of "pauses" was insufficient to create a question of fact on MSJ, when Caller established that calls were manually dialed. Plaintiff submits an affidavit, a handwritten call log,2 and photographs of a cell phone… Read More

In Ellis v. Phillips and Cohen Associates, Ltd., 2016 WL 3566981, at *3-5 (N.D.Cal., 2016), Judge Davila found a triable issue of material fact as to whether a debt incurred by Plaintiff's corporation, for which she denied responsibility, was a "commercial" debt under the FDCPA. As this court previously observed when addressing Defendant's motion to dismiss, a “consumer debt” qualifying… Read More

In Ananthapadmanabhan v. BSI Financial Services, Inc., 2015 WL 8780579, at *4 (N.D.Ill. 2015), Judge Leinenweber held that a TCPA Plaintiff must plead more than formulaic recitation of the TCPA in order to prove the “use” of an ATDS. The Court agrees that Plaintiffs' Complaint is insufficient. Use of an ATDS and the pre-recorded nature of the messages are not… Read More

In Norman v. AllianceOne Receivables Management, Inc., 2015 WL 9286778, at *1 (7th Cir. 2015) (unpublished), the Court of Appeals for the Seventh Circuit affirmed summary judgment granted on the basis that calls were placed manually and, therefore, were exempt from the TCPA. The district court granted summary judgment after AllianceOne produced evidence showing that its calls to Norman were dialed… Read More

In Estrella v. LTD Financial Services,  2015 WL 6742062, at *1-3 (M.D.Fla., 2015), Judge Whittemore granted summary judgment to a TCPA defendant who manually dialed calls by a "point-and-click" method. To succeed on his TCPA claim, Plaintiff must establish that Defendant placed calls to his cellular phone using an ATDS or artificial or prerecorded voice. The TCPA prohibits the use of… Read More

In Gaza v. LTD Financial Services, L.P., 2015 WL 5009741, at *4 (M.D.Fla.,2015), Judge Moody granted summary judgment to a TCPA defendant whose calls were only dialed manually. With respect to the ATDS definition, the FCC, in its July 10, 2015 Declaratory Ruling and Order noted: "We reaffirm our previous statements that dialing equipment generally has the capacity to store… Read More

The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments.   For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman (ejt@severson.com) or Scott Hyman (sjh@severson.com). Read More

In Hilgenberg v. Elggren & Peterson, 2015 WL 4077765,  (D.Utah,2015), Judge Shelby found that a debt collector violated the FDCPA for failing to give meaningful disclosure in its voicemail messages, but did not violate the TCPA because the calls were manually dialed.  As to the former, Judge Shelby found that the debt collector failed to give the "tripartite" disclosure:  name, company,… Read More

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