CEB Prac. Guide § 2B.22: Revocation

In Zondlo v. Allied Interstate, LLC., 2018 WL 827590, at *6 (M.D.Pa., 2018), Judge Munley estopped a debt collector from re-litigating whether the calling system it used was an ATDS. Allied does not dispute that it was fully represented during Morse, and, as previously mentioned, has even agreed to use the deposition testimony from Morse in the instant case, as… Read More

In Patterson v. Ally Financial, Inc., 2018 WL 647438, at *5 (M.D.Fla., 2018), the District Court distinguished Reyes, finding a question of fact whether the TCPA revoked consent to be called by an ATDS. The parties disagree over whether the credit application and the retail installment contract, both signed as a condition of financing, are two separate agreements or a single contract.… Read More

In Casto v. Branch Banking & Trust Company, 2018 WL 265586, at *1–13 (S.D.W.Va., 2018), Judge Chambers denied a Bank's summary judgment seeking to dispose of a TCPA claim, in part, finding problems with Defendant's "mail-box" rule argument with respect to when the Defendant's agent received the written revocation. Indeed, Defendant vies for summary judgment upon the receipt date of the… Read More

In Gold v. Ocwen Loan Servicing, LLC, 2017 WL 6342575, at *2 (E.D.Mich., 2017), Judge Murphy granted in part and denied in part a TCPA defendant's motion to dismiss. Plaintiff's TCPA claims regarding phone calls made prior to May 10, 2013 are time barred. TCPA claims are subject to a four-year statute of limitations. See 28 U.S.C. § 1658(a); see… Read More

In Miller v. Ginny's Inc., 2017 WL 6398302, at *4–5 (M.D.Fla., 2017), Judge Honeywell denied a TCPA plaintiff's summary judgment motion. Miller submitted an affidavit in which she attested that every time she spoke with a Ginny's representative, she requested that Ginny's stop calling her, that she would not make payment, and that she preferred to receive written bills every… Read More

In Herrera v. First National Bank of Omaha, N.A., 2017 WL 6001718, at *3–4 (C.D.Cal., 2017), Judge Lew denied a TCPA Plaintiff's summary judgment motion arguing that the Plaintiff had revoked consent to be called. “The TCPA does not explicitly grant consumers the right to revoke their prior express consent.” Van Patten, 847 F.3d at 1047 (internal citations omitted). In… Read More

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… Read More

In Viggiano v. Kohl's Department Stores, Inc., 2017 WL 5668000, at *4 (D.N.J., 2017), Judge Martinotti dismissed a Plaintiff's TCPA case by failure to allege adequate revocation of consent. Here, Plaintiff has pled she received replies to her efforts to opt out instructing her to text “STOP” to opt out of future texts. (ECF No. 1 ¶ 14.) Accepting the… Read More

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,… Read More

In Michel v. Credit Protection Assocation, 2017 WL 3620809, at *4–5 (N.D.Ill., 2017), Judge Dow granted summary judgment for a debt collector who held two different creditors' accounts, and was autodialing a debtor.  The Court explained that a debtor's revocation of consent to be called when the debt collector called on only one of the accounts did not revoke consent… Read More

In Lanteri v. Credit Protection Assocation, LP, 2017 WL 3621299, at *4 (S.D.Ind., 2017), Judge Lawrence refused to certify a TCPA "stop-texting" revocation of consent class action. The FCC has stated that “[c]onsumers have a right to revoke consent, using any reasonable method.” Federal Communications Commission Record, F.C.C. 15-72, 23, appeal docketed as ACA Int'l v. FCC, No. 15-1211 (D.C.C.… Read More

After initially suggesting in Meadows v. Franklin Collection Service, Inc., 2011 WL 479997  (11th Cir. 2011) that it might take a decent approach towards TCPA litigation, the Court of Appeal for the 11th Circuit in Schweitzer v. Comenity Bank, 2017 WL 3429381, at *3 (C.A.11 (Fla.), 2017) issued another in a series of pro-TCPA-plaintiff decisions ensuring more work for its already overworked… Read More

A copy of industry's Notice is here. Read More

In Martinez v. TD Bank USA, N.A., 2017 WL 2829601, at *5–6 (D.N.J., 2017), Judge Simandle granted summary judgment in a TCPA case on the basis that the Plaintiff's fax of revocation of consent was not a reasonable method to revoke consent because Plaintiff sent the fax to the Bank, and not a fax number designed by the Bank or… Read More

In Reyes v. Lincoln Automotive Financial Services, Inc., 2017 WL 2675363, at *6 (C.A.2 (N.Y.), 2017), the Court of Appeals for the Second Circuit held: We are sensitive to the argument that businesses may undermine the effectiveness of the TCPA by inserting “consent” clauses of the type signed by Reyes into standard sales contracts, thereby making revocation impossible in many instances.… Read More

In Karmen Self-Forbes v. Advance Call Technologies, LLC, 2017 WL 1364206 (D. Nev. 2017), Judge Mahan granted summary judgment to a TCPA defendant based on its call records demonstrating that the Plaintiff did not revoke consent, despite Plaintiff's affidavit that she did. “Express consent is not an element of a plaintiff's prima facie case but is an affirmative defense for which the… Read More

In Van Patten v. Vertical Fitness Group, the Court of Appeals for the Ninth Circuit held that a plaintiff who alleges he received unconsented to text messages or telephone calls has standing to bring a TCPA claim against the sender. Unwanted messages invade privacy interests that are similar to interests protected at common law and to which Congress gave statutory protection.… Read More

In Lawrence v. Bayview Loan Servicing, LLC, --- Fed.Appx. ----2016 WL 7407243 (11th Cir. 2016), the Court of Appeals for the 11th Circuit found that a TCPA re-established consent to be called by an autodialer when he gave his telephone number again to the caller without qualification. Lawrence argues that the District Court erred by finding that, as a matter of law,… Read More

In Dixon v. Monterey Financial Services, Inc., 2016 WL 3456680, at *4-5 (N.D.Cal., 2016), Judge Chesney denied a TCPA defendant’s summary judgment motion on the basis that triable issues of fact existed whether the Plaintiff revoked consent. Initially, the Court finds unpersuasive defendant's argument that the statements, which were recorded by defendant at the time they were made, are insufficient… Read More

In Cartrette v. Time Warner Cable, Inc.,  2016 WL 183483, at *4-6 (E.D.N.C., 2016), Judge Flanagan denied a TCPA defendant's summary judgment motion, holding that its subscriber agreement could not prohibit revocation of consent. However, such a contract does not prevent a consumer from revoking her prior express consent pursuant to the TCPA. See Gager, 727 F.3d at 273–74 (“The… Read More